Today marks the ten-year anniversary of the first reported US drone strike in Pakistan (punctuated by another one today). Yet there is still official silence about a crucial fact: does the administration consider parts of Pakistan an “area of active hostilities”? Many of us who follow this issue closely believe we know the answer, but this post suggests there are signs that point in opposite directions. (Indeed, what we discuss in Parts II and III may come as a surprise.)
The notion of “areas of active hostilities” essentially refers to geographic zones where belligerents engage in sustained fighting. It is a term of art, as far as we can tell, developed by the administration at an unknown date, and not found in international law. In congressional testimony, the administration has stated that it considers Afghanistan an area of active hostilities, and it considers Yemen (despite frequent drone operations in that country) and Somalia outside the area of active hostilities.
Unlike Yemen, US operations in Pakistan are formally covert—though widely discussed—which helps explain why the administration would refuse to acknowledge the status of the Pakistani territory.
I. What’s at stake?
What’s at stake is whether a specific set of safeguards apply to the recent resumption of drone attacks in Pakistan. Presidential Policy Guidance (PPG) for the use of force, described in a White House Fact Sheet on May 23, 2013, sets forth heightened standards for lethal actions–such as a near certainty that civilians will not be killed or injured in a strike. As the title of the Fact Sheet states, the PPG standards apply only to operations “outside the United States and areas of active hostilities.” The idea is that US forces engaged in hot battlefields, such as areas of Afghanistan, cannot afford to apply all those restrictions especially if they are significantly higher than the law of armed conflict requires.
II. Is Pakistan, and in particular the FATA, in or out?
The administration has repeatedly referred to the “Afghan war theater” as within the area of active hostilities, and many journalists and legal experts consider this to include areas of Pakistan. In 2011, the NYT reported: “The State Department’s top lawyer, Harold H. Koh, has agreed that the armed conflict with Al Qaeda is not limited to the battlefield theater of Afghanistan and adjoining parts of Pakistan.” In February 2013, a piece in Pro Publica stated: “Last spring the U.S. reportedly expanded signature strikes to Yemen, though administration officials said there were stricter standards than in Pakistan and evidence of a threat to the U.S. or U.S. interests was required. … That tighter standard is reportedly also part of the Obama administration’s new guidelines for the targeted killing program.” [See also Jennifer Daskal’s excellent Penn Law Review article on hot battlefields.]
But some signs point in the opposite direction. On the eve of the NDU speech, Attorney General Eric Holder submitted a letter to Senator Patrick Leahy identifying four Americans who had been killed by US forces outside the area of active hostilities. The fourth American listed, 23-year-old Jude Kenan Mohammad, was killed in a drone strike in 2011 in a town in the tribal areas of Pakistan less than two miles from the Afghan border.
Just last month the Department of Defense’s General Counsel Stephen Preston made a statement consistent with the Holder letter. In prepared testimony before the Senate Armed Services Committee concerning the May 23 PPG, Mr. Preston first mentioned the “Afghan theater,” but then stated:
“Thus, under the President`s policy, no one is targeted with lethal military force outside Afghanistan based solely on membership in al Qa`ida or an associated force. In addition, this Guidance requires near certainty that non-combatants will not be killed or injured before lethal action may be taken.” (emphasis ours)
These statements appear to imply that the area of active hostilities starts and stops at the Afghan border.
III. Half in, half out?
There are at least two ways to resolve this tension, if not apparent contradiction.
1. CIA temporary exemption?
At least in terms of the policy guidelines, perhaps the CIA drone operations have received a temporary exemption. The May 23, 2013 PPG is based on the “playbook” that the administration developed over several months. In January 2013, the Washington Post reported that the CIA received an exemption from those heightened standards. And, the White House’s Fact Sheet conspicuously provides the following caveat:
“This document provides information regarding counterterrorism policy standards and procedures that are either already in place or will be transitioned into place over time.” (emphasis ours)
The WaPo story suggested the following timeline: “The CIA exception is expected to be in effect for ‘less than two years but more than one,’ [a] former official said, although he noted that any decision to close the carve-out ‘will undoubtedly be predicated on facts on the ground.’” Notably, that timing roughly coincides with the drawdown of troops in Afghanistan.
This would be an exemption that swallows the rule, since the CIA has reportedly conducted almost every lethal action in Pakistan.
2. Force protection against militants preparing to direct attacks inside Afghanistan
Perhaps the answer is that Pakistan is generally not within the area of active hostilities, but operations launched from border areas to take place in Afghanistan are considered within such a zone. It does seem odd that Jude Mohammad would be protected by a different set of targeting rules than a hypothetical counterpart located in Afghanistan, simply because Mohammad was two miles over the Pakistani border.
In a law review article in 2013, Daskal recommended the following illustrative formula (admittedly for a different legal context and purpose):
“If, however, the Taliban and al Qaeda established a cross-border base camp to train and organize fighters and to coordinate further actions in the hot conflict zone, the region likely would qualify as an extension of the zone of active hostilities. This description arguably fits activity in parts of northwest Pakistan.”
That formulation might fit the existing policy guidelines. It would still be difficult to square with the Holder letter which stated that Jude Mohammad was killed in an operation outside an area of active hostilities. Mohammad was not specifically targeted. So perhaps the answer depends on the reason the CIA attacked the group of “about 12 other insurgents” in which Mr. Mohammad was killed that day. If the strike occurred because of a high value target in the group, and not due to a direct threat to US forces in Afghanistan, that might explain it.