Material Witness

A new book from the wonderful Susan Schuppli – I was going to say ‘of Forensic Architecture‘ fame, except that her work involves so much more than that!  You can see both her entanglements with forensic architecture and the ‘so much more’ on full display in Material Witness: media, forensics, evidence (MIT Press):

In this book, Susan Schuppli introduces a new operative concept: material witness, an exploration of the evidential role of matter as both registering external events and exposing the practices and procedures that enable matter to bear witness. Organized in the format of a trial, Material Witness moves through a series of cases that provide insight into the ways in which materials become contested agents of dispute around which stake holders gather.

These cases include an extraordinary videotape documenting the massacre at Izbica, Kosovo, used as war crimes evidence against Slobodan Milošević; the telephonic transmission of an iconic photograph of a South Vietnamese girl fleeing an accidental napalm attack; radioactive contamination discovered in Canada’s coastal waters five years after the accident at Fukushima Daiichi; and the ecological media or “disaster film” produced by the Deep Water Horizon oil spill in the Gulf of Mexico. Each highlights the degree to which a rearrangement of matter exposes the contingency of witnessing, raising questions about what can be known in relationship to that which is seen or sensed, about who or what is able to bestow meaning onto things, and about whose stories will be heeded or dismissed.

An artist-researcher, Schuppli offers an analysis that merges her creative sensibility with a forensic imagination rich in technical detail. Her goal is to relink the material world and its affordances with the aesthetic, the juridical, and the political.

Susan’s own, endlessly interesting web page is here, which includes links to some of her writing here.

Under Afghan Skies (3)

Here is the third installment of my essay on an airstrike on three vehicles in Uruzgan, Afghanistan on 21 February 2010 that has become one of the central examples in critical discussions of remote warfare.  The first installment is here and the second is here.  The background to the essay is here.  And to be clear: many of the images I’ve used in this and the previous posts are taken from my conference presentation; some relate directly to this incident but others (as I hope will be obvious) are intended to be illustrative and do not portray the engagement under analysis.

***

0530

At 0531 the commander of the AC-130 warned that ‘we are right at the outer limit of our fuel’ and could only remain on station for another five minutes at most without a fire mission – and, like the JTAC, he plainly wanted one [101] – but the GFC decided that the distance was still too great so they would have to wait and ‘let things unfold.’  ‘We really need PID,’ the JTAC emphasised, ‘to start dropping.’

At  0534 the AC-130 reluctantly signed off.  ‘We knew that as soon as we left they would be in greater danger,’ the commander told McHale (p. 1420).  ‘Stay safe,’ he radioed the JTAC, and ‘we will try to send one of ours back out here for you tomorrow night.’   It was now down to the Predator.  ‘All right,’ the pilot told his crew, ‘so it’s us.’

By then, alarm bells were also ringing at the Special Operations Wing at Hurlburt Field in Florida where the screeners had been following the vehicles.  The Mission Operations Commander there ‘started beefing up the crew’ and ‘doubled up every position’ (p. 588). To increase the number of screeners was unusual, his commanding officer explained, but tracking two and eventually three vehicles and dozens of people needed ‘more eyes on the mission’ (p. 1412).  It was a wise move, but it could do nothing to increase their chronically narrow field of view.

As the situation developed, it gained interpretive momentum, shaded by increasingly ominous exchanges between the Predator crew and the JTAC.  These were reinforced by comments from the Afghan forces who accompanied the US Special Forces in Khod.   ‘If the Afghans see something that I don’t see because some of them had [local] knowledge,’ the ODA’s second-in-command told McHale, ‘they’ll let me know’, and as soon as his interpreter translated it he would put it out over the inter-team net to keep everyone in the loop.  ‘They were like nobody comes down from there at night with lights on,’ he explained, ‘announcing their presence.  They told us that [the vehicles] were coming in to reinforce here because they had seen in the past stuff like that.’  The upshot was that ‘we just felt like they were coming for us’, and as the night wore on that impression ‘kept on building, and building, and building’ (p. 1569).

At Creech the sensor operator had zoomed in to focus the Predator’s infra-red camera on the passengers travelling in the back of the pick-up, and commented that it was ‘weird how they all have a cold spot on their chest.’  ‘It’s what they’ve been doing here lately,’ the pilot told him, ‘they wrap their [shit] up in their man dresses so you can’t PID it.’ The slur about traditional Afghan attire, the shalwar kameez, should not distract from the implication that the failure to identify weapons was suspicious in itself, not an indication of innocence at all but evidence of a deliberate strategy to conceal weapons from their surveillant eye. [102]  So far the Predator crew had identified the people in their field of view as ‘individuals’, ‘passengers’ and ‘guys’, but their vocabulary became overtly prejudicial as they routinely referred to them as  ‘MAMS’: ‘Military-Age Males’. [103] The term is redolent of what Jamie Allinson identified as a necropolitical logic which mandates that all those assigned to this category ‘pose a lethal threat to be met with equally lethal violence.’ [104]

The switch to ‘MAMs’ was triggered at 0534 when the pilot and the sensor operator both thought they saw one of the men carrying a rifle and the sensor operator read out a mIRC message from the screeners calling ‘a possible weapon on the MAM mounted in the back of the truck.’  The pilot lost no time in sharing the sighting with the commander of the AC-130, who was about to sign off, and with the JTAC: ‘From our DGS, the MAM that just mounted the back of the Hilux had a possible weapon, read back possible rifle.’

But almost immediately the search for weapons and the age of the people collided as the screeners sent a stream of mIRC messages that were less well received by the Predator crew.  At 0536 they called ‘at least one child near [the] SUV’, and at 0537 they reported that ‘the child was assisting the MAMs loading the SUV’  (p. 1154).  When the MC read out these calls there was immediate pushback.  ‘Bull[shit],’ the sensor operator exclaimed, ‘where?’ ‘I don’t think they have kids out at this hour’, he continued, ‘I know they’re shady, but come on…’ The pilot looked over at the mIRC window and reinforced their presumptive ‘shadiness’: ‘[Assisting] the MAM, uh, that means he’s guilty.’  This was an open invitation to revise the age of the child upwards.  ‘Maybe a teenager,’ the sensor operator grudgingly conceded, ‘but I haven’t seen anything that looked that short.’  The MC reported the screeners were reviewing.  ‘Yeah, review that [shit]’,’ the pilot replied. ‘Why didn’t he say possible child?’ he fumed.  ‘Why are they so quick to call [fucking] kids but not to call a [fucking] rifle?’  The next mIRC message did nothing to settle him; at 0538 the screeners reported not one but ‘two children are at the red SUV… Don’t see any children at the pick-up’ (p. 1154).  Reading out their message the MC added his own rider: ‘I haven’t seen two children.’  Still, the pilot passed the call to the JTAC at 0538: ‘Our DGS is calling possible rifle in the Hilux and two possible children in the SUV.’  He seemed to have granted his own wish and turned ‘children’ into ‘possible children’. [105] (He later told McHale that ‘if the screener calls something and we are not sure we would tell the JTAC we had a possible….’ (p. 908)).  The JTAC acknowledged the pilot’s relay and repeated that ‘[the] Ground Force Commander’s intent is to monitor the situation, to keep tracking them and bring them in as close as we can [to Khod] until we also have CCA [Close Combat Attack] up and we want to take out the whole lot of them.’  The sensor operator was still grumbling about the screeners – ‘I really doubt that children call,’ he muttered, ‘I really fucking hate that’ [106] – when at 0539 the MC said he had been told to remind him ‘in case they do get a clear hostile, and they’re children, to remove our metadata so they can get a snap of it.’ [107]  Then he added, ‘But I haven’t seen a kid yet, so…’ At 0540 the screeners came back to report ‘One man assisted child into the rear of the SUV’ (p. 1154), which prompted the MC to ask: ‘Is this the child entering the rear of the SUV?’  As they watched their screens the occupants were all getting back into the vehicles, when they detected what they took to be a scuffle in the back of the Hilux.  It is impossible to know whether this was a (re)interpretation of the previous message, but they evidently saw it as an altercation rather than ‘assistance’.  ‘They just threw somebody in the back of that truck,’ the pilot claimed, while to the sensor operator it looked as though ’those two dudes [were] wrestling,’ and without consulting the screeners the pilot radioed the JTAC at 0541 to say that they had witnessed the ‘potential use of human shields’. [108]

All of these calls were at best circumstantial, and the evidential basis for most of them was exceptionally thin, but it was enough for the GFC to take pre-emptive action and initiate the call for more air support: and he wanted Close Combat Attack (CCA).  The Predator had only one AGM-114 Hellfire laser-guided missile left in its rack – the other had been fired earlier in its flight – and that would not be enough firepower to engage all three vehicles.  ‘I don’t think he’s gonna let us shoot,’ the pilot observed, ‘cause they wanna get all these guys – but still…’  The sensor operator wondered ‘who the next available CCA is gonna be’, because they might be able co-ordinate with them: ‘We’re gonna take this vehicle…’   While they were talking the GFC contacted SOTF-South’s Operations Center at Kandahar Air Field by satellite phone and asked for an ‘AirTIC’ to be declared. TIC stood for ‘Troops in Contact’ and immediately triggered aircraft to come to the aid of ground forces who were exchanging fire with the Taliban; the average response time in Afghanistan then was around 8-10 minutes.  But an AirTIC was a purely precautionary measure intended to bring aircraft on station in anticipation of an engagement; it had no official status and was not part of established military doctrine but had become standard operating procedure for Special Forces. [109]

At 0545 the JTAC told the Predator pilot ‘we’ve opened an [AirTIC] and we’re going to get additional air assets on scene’.  As expected, the GFC requested Close Combat Attack – helicopters – and not Close Air Support, and the Fires Officer at SOTF-South immediately contacted the Air Support Operations Center (ASOC) at Kabul, an Air Force unit attached to the Army to coordinate tactical air support (both CAS and CCA), which informed him that ‘the only thing they could get off the ground in a timely manner was a Scout Weapons Team’ (SWT) (p. 721).  This consisted of two OH-58 Kiowa helicopters tasked for armed reconnaissance. [110]   When the GFC called back to chase progress on his request, the Fires Officer told him the SWT would be coming, but added that it might be possible to bring in A-10 ‘Warthogs’ too, heavily armed gunships built around a high-speed 30mm rotary cannon that were often called on to support troops in contact because they had a long loiter time (compared to helicopters) and enhanced visibility of the ground (compared to other strike aircraft). The ASOC had already referred SOTF-South’s request for CCA back to Regional Command–South at Kandahar Air Field, and at 0541 its Duty Officer contacted the 82nd Combat Aviation Brigade (also at Kandahar Air Field) and authorised its Task Force Wolfpack – Alpha Troop from the 1st Squadron, 17th Cavalry Regiment – at FOB Ripley outside Tarin Kowt to launch two of its OH-58 helicopters to provide CCA in support of ‘a TIC’ 35 miles northwest of their base (p. 394);  ‘AirTIC’ does not appear in the duty officer’s log.

Despite the live streaming of the FMV feed from the Predator onto a giant screen in SOTF-South’s Operations Center, the departure of the AC-130 leaving coalition forces exposed to Taliban attack, and the GFC’s declaration of an AirTIC to obtain additional air cover, the mission log at SOTF-South had fallen silent at 0536 with the transcription of a SALT report: ‘2-3 vehicles… [GFC] reports ISR [Intelligence, Surveillance and Reconnaissance: the Predator’s FMV feed] PID of 43-55 pax [people] in two groups carrying weapons’ (p. 1991).  No further entries would be made for another two hours.

The responsibility for maintaining the log fell upon the officer designated as Night Battle Captain. [111] He usually monitored eight to ten operations at any one time, but Operation Noble Justice was the main mission that night.  Ordinarily the role would have been filled by a major, but he had been seconded to assist with planning Operation Moshtarak in Helmand (p. 999). The captain who took his place had only been in post for three weeks, had received little training and was described by his own commanding officer as ‘barely adequate’ (p. 1103). [112]  Yet all three remaining field-grade officers at SOTF-South were asleep, even though the night was the time of highest risk (pp. 1006-7), and apart from the Fires Officer – who arranged the additional air cover requested by the GFC – McHale noted that all the posts on the night shift ‘were filled by personnel who were significantly less experienced than the day shift counterparts’ (p. 51). While it was true that Operation Noble Justice could not be executed until dawn, the coalition forces were exposed to attack during the three hours they had to wait for first light.  The GFC had made it clear that he thought the danger to them was increasing, but the green young battle captain merely monitored the stream of SALT reports through the small hours, acknowledging each one with a terse ‘Roger, Copy’ (p. 938), occasionally watching the Predator feed and periodically logging on to the mIRC chat:  what McHale called ‘a pretty passive kind of watching’ (p. 1014).  ‘I just monitored and saw what happened,’ the Night Battle Captain told him (p. 1549). [113]  Although the major who was Director of the Operations Center conceded that the most active period was between 0200 and 0600 – the period with the ‘highest density of risk and threat’ – he insisted there were ‘wake-up criteria’ in place that were met in this instance and should have had him called into the Operations Center (p. 993).  But he wasn’t.  The Night Battle Captain said he ‘didn’t feel at that point it was necessary to wake anyone’ (p. 1549), and even as the situation deteriorated he still saw no reason to wake his senior officers or to reach down to the GFC. [114] A series of immensely consequential decisions would have to be taken by the GFC alone. [115]

The vehicles were now trying to ford a river, making several attempts to find a safe crossing.  Their every move was being watched back in the United States and at 0551, when the water rose to the doors, the Predator pilot exclaimed: ‘I hope they fucking drown them out, man.  Drown your [shit] out and wait to get shot.’  ‘I hope they get out and dry off,’ the MC added, ‘and show us all their weapons.’ The Predator crew was now anticipating an airstrike with relish, and they had a brief discussion about the legal envelope within which it would take place.  The pilot wondered how the presence of ‘potential children and potential [human] shields’ would affect the application of the Rules of Engagement, and the sensor operator told him the GFC was assessing (or would have to assess: the basis for his comment is unclear) ‘proportionality and distinction’. That is confusing too – or perhaps just confused – since those are considerations required by International Humanitarian Law rather than the ROE.  They forbid military force to be used against civilian targets or to cause ‘excessive civilian harm’. ‘Is that part of CDE [Collateral Damage Estimation]?’ the pilot asked, adding that he was ‘not worried from our standpoint so much’ – since that was not their responsibility – but that it was asking a lot of the GFC to make such a determination.  The sensor operator thought he would have to wait ‘until they start firing, cause then it essentially puts any possible civilian casualties on the enemy.’  ‘If we’ve got friendlies taking effective fire,’ he said, ‘then we’ve gotta do what we’ve gotta do.’  Should that happen before the SWT arrived, the pilot decided, ‘we can take a shoot … get as many as we can that are hostile, hopefully track them still in the open’ – and then, presumably, talk the helicopters onto the target once they arrived.

The Predator crew clearly had no pre-strike guidance from a military lawyer from the Judge Advocate-General’s Corps (known as a JAG).  By 2005 JAGs were part of the US Air Force’s ‘kill-chain’, stationed on the operations floor of CENTCOM’s Combined Air Operations Centre (CAOC) at Al Udeid Air Base in Qatar to advise on targeting. [116]  They were also forward deployed in Afghanistan, but the Safety Observer at Creech Air Force Base, who was called in shortly before the engagement and whose responsibilities included ‘making sure the ROE had been met’, confirmed that there was no JAG ‘on site to consult during these engagements’ (p. 1459). [117]  In any case, the leading strike aircraft in this instance would be the OH-58 helicopters. As the Predator crew had realised, the onus was on the GFC, who had to decide whether the vehicles constituted a legitimate military target whose execution fell within the ROE and the Tactical Directive, and then order the JTAC to issue a ‘nine-line’ brief and clear the aircraft to engage. [118]

The Safety Observer explained that ‘the only other way’ a strike could be authorised would involve the identification of a High-Value Individual (HVI) whose execution would require an additional level of clearance through ‘a joint targeting message from the CAOC’ (p. 1457). [119]   The GFC knew that – ‘an HVI was above my authority’ (p. 953) – and so did the JTAC, who said he would have had to refusd any order from the GFC to clear the helicopters to engage an HVI without higher approval (p. 1495).  The JTAC told McHale that the GFC was still convinced that the convoy was carrying at least one HVI (p. 1491) – the ‘high-level Taliban commander’ and his security detail inferred at the start of the pursuit – but that he had also decided it posed an ‘imminent threat’ to coalition forces at Khod, which the JTAC was satisfied constituted sufficient grounds to engage (p. 1495).

It is impossible to adjudicate the issue: the GFC claimed that he had discounted the presence of an HVI (above, p. 00), and since the CAOC was not involved in cases of self-defence and imminent threat – the presumptive triggers in this instance – the only sources of legal advice available to the GFC were JAGs at the two Special Forces Operations Centers at Kandahar and Bagram Air Fields.  Throughout the night neither was contacted by the battle captains.

0600

At 0601 Task Force Wolfpack’s Duty Officer at FOB Ripley logged the request sent via Regional Command–South ‘for aircraft coverage for [a] TIC’ (p. 402).  McHale characterised this as a ‘911 call’ (p. 1438) which – whether he intended to or not – was a tacit acknowledgement that the narrative had been transformed and a precautionary measure had become an emergency response. This was exactly how the message was received by the helicopter crews, and in fact throughout the stream of communications that resulted in the Scout Weapons Team being scrambled the situation was consistently described not as an AirTIC but as a TIC: a live incident. Those charged with providing air support, as Air Force Lt Gen Stephen Hoog explained, ‘are not in the business of determining whether a TIC is “real” or not.’ [120]

Within ten minutes of the call being received at FOB Ripley the Predator crew knew that two OH-58 helicopters would be scrambled.  All they could do for the moment was watch the vehicles on their screens and wait as their drivers made heavy weather of it (Figure 4). The dirt roads and uneven ground meant they rarely exceeded 10 m.p.h., and there were several stops for people to get off to help the vehicles make it up a steep incline. There were other stops, sometimes to let an overheated engine cool down and at others for punctures or repairs to the wheels (fortunately for them – though not for him – they had a mechanic with them).  ‘When something breaks in Afghanistan it probably breaks pretty good,’ the MC observed, ‘with all the rough terrain and everything.’

From here on virtually everything the Predator crew described, in conjunction with the pilot’s exchanges with the JTAC, contributed to the continued collaborative construction of an imaginative geography of an impending Taliban attack. The fact that there were vehicles out there at all attracted suspicion.  In such a poor area, the JTAC told McHale, ‘from my experience those with vehicles are well-off and supported by the Taliban or Taliban themselves’ (p. 1487). Soon the vehicles had become ‘technical trucks’ – a standard term for pick-up trucks with improvised mounts for crew-served weapons [121] – and when they were joined by a third at 0602 (dubbed ’guilt by association’) this was seen as a ‘grouping of forces’ and now they constituted a ‘convoy’. At 0617, after they had finally crossed the river and stopped for people to get out and pray – the Fajr that was a normal start to the day for any devout Muslim – this was seized upon as a Taliban signifier: ‘They’re praying, they’re praying,’ the sensor operator declared, ‘I mean, seriously, that’s what they [the Taliban] do.’  The MC agreed: ‘They’re gonna do something nefarious.’  [122]  This was the moment when the passengers in the vehicles first became aware of an aircraft:

 ‘There is a rest area on the way where we stopped to pray,’ explained one of the women. ‘We got out of our cars, men and women. After our prayer, we left.  That’s when we heard the sound of a plane.  But we couldn’t see it.’ [123]

But it could see them, and a couple of minutes later the MC directed the crew’s attention to ‘that [infra-red] spot in the back of that truck.’  ‘It’s all their guns,’ the sensor operator told him.  This too was a leap of (bad) faith, followed by yet another.  When the MC passed the screeners’ identification of an adolescent near the rear of the SUV, the sensor operator responded with ‘teenagers can fight’, which the MC amplified: ‘Pick up a weapon and you’re a combatant, that’s how it works’ (it isn’t).  Once the screeners identified an additional weapon, the pilot was evidently satisfied that they were now on the same page as him and his crew: ‘I’ll make a radio call,’ he said on the intercom, ‘and I’ll look over [at mIRC] and they will have said the same thing…’  This was not the screeners’ view – to the contrary –but it served to enrol them in the crew’s elaboration of their narrative.  It also reversed the inferential order, since the role of the screeners was to pass expert calls to the Predator crew for transmission to the GFC rather than act as secondary confirmation.

In the midst of this cascade of mutually reinforcing interpretations, the GFC continued to exhibit what – following McChrystal’s guidance – McHale praised as ’tactical patience’.  When the vehicles stopped for the dawn prayer they were six or seven km (four miles) from the nearest coalition forces, and at 0627 the JTAC explained that the GFC still planned ‘to let the situation develop, permit the enemy to close [on coalition forces at Khod], and we’ll engage them closer, once they’ve all consolidated.’

By then the helicopters were on their way.  The two aircrews that made up Scout Weapons Team 1 (SWT1) had reported for duty at FOB Ripley at 0600 and anticipated carrying out routine armed reconnaissance along what coalition forces called Route Bear, the dirt highway that wound 160 miles south from Tarin Kowt to Kandahar. Ordinarily they would have been airborne between 0700 and 0800, but the lieutenant in command of the team explained that as soon as they arrived for their overnight intelligence (ONI) briefing they were ‘notified that the ground force operating north of Cobra [FB Tinsley] had declared a TIC’ (p. 776), and the pilot flying trail said that they ‘got freaked’ and scrambled more or less immediately at 0615 (p. 1438). The OH-58s did not have to be readied, and one journalist who visited Ripley saw them sitting ‘in their concrete blast bunkers on the dispersal ramp, fully fuelled and armed and ready to go 24 hours a day.’[124]

The two pilots flying that day rushed to complete the paperwork and ran up the engines, while their co-pilots (the ‘left-seaters’) stayed to receive detailed information. As he waited for the lieutenant to join him, the pilot flying lead contacted the JTAC who ‘painted a very broad picture for me’  (pp. 513-4). Shortly after take-off at 0630 the lieutenant (call sign BAMBAM41) radioed that they were en route

‘responding to a TIC [redacted] reporting 2-3 technical trucks with heavy weapons, 35-50 Taliban maneuvering on their positions.  [ICOM] suggests the Taliban think they can overrun friendly forces…’ (p. 336). [125]

The helicopters at Ripley frequently responded to TICs but the familiarity did nothing to diminish the sense of urgency. The lieutenant testified that it was ‘the norm rather than the exception’ for the Special Forces at FB Tinsley ‘to get into TICs when they go outside the wire’ (p. 777). The aircrews had worked with ODA 3124 before and knew them ‘very well’,  and the pilot flying lead believed that they were ‘about to get rolled, and I wanted to go and help them out…  There was a 12-man team out here plus whatever [unintelligible] they had that were about to get a whole lot [of] guys in their faces’ (p. 516). Yet again there was no indication that their mission was a precautionary measure; to the contrary. [126]

As they approached their holding position south of FB Tinsley – they would subsequently land at Tinsley to conserve fuel, fly back to Tarin Kowt to refuel and then return to Tinsley and flat pitch (pp. 408-9) – the crews attempted to familiarise themselves with the situation.  Like ODA 3124 they had an unambiguous sense of the area as a threat landscape. The map from their ONI briefing was peppered with ‘IED hotspots’ and ‘IED cells’, ‘insurgent spotter locations’ and ‘insurgent spotter networks’, ‘insurgent fighting positions’ and ‘insurgent activity’ which, according to the summary, had increased markedly over the past month (p. 372) (Figure 5). [127]

This was another, intensely visual modality of areal essentialism (above, p. 00), which must have been reinforced by the crews’ experience of providing support to ground forces (‘we respond to a lot of TICs’: p. 777).  As they flew towards the firebase they picked up radio communications between the JTAC and other aircraft, including the Predator, which helped to animate their map, and while they had no access to the Predator’s FMV feed they were able to plot the progress of the vehicles and put the operational picture together.

The JTAC warned the helicopter crews not to ‘burn the target’ – alert the occupants of the vehicles – but to hold south of their position ‘out of earshot’ to give them time to ‘consolidate on our location’ before moving in to strike, at which point he said the GFC’s intent was ‘to destroy those vehicles and all the personnel with them’ (p. 336).  At 0641 the Predator pilot relayed a message to the JTAC from SOTF-South advising him that, as promised, other aircraft were ‘being pushed to this as well’ (call sign DUDE).  When the Fires Officer had told the GFC that A-10s might be coming too, he had been asked to have them hold south of the grid – like the helicopters – so that the occupants of the vehicles would have no warning of an attack, and the Predator pilot now relayed that DUDE was currently holding south of FB Tinsley and could be on station in four minutes. At 0645 the MC noted that the information about the TIC had finally appeared in the ASOC chat room (‘TIC A01’), and at 0649 the pilot was asked to bring the Predator down to 13,000 feet to de-conflict the airspace: ‘Have DUDE above you in support of TIC A01.’

But this was not the keenly anticipated A-10s.  Instead two F-15Es roared overhead.  The F-15 was originally designed for aerial combat, not CAS and still less CCA. Although the F-15E had been modified to conduct bombing missions, it flew at speeds that could exceed Mach 2.5 (around 3,000 km/hr) and so its pilots were wholly dependent on its sensors for target identification and laser designation.  This was noisy, split-second stuff, and the GFC was furious.  He immediately made another satellite phone call to the Night Battle Captain at SOTF-South:  ‘I was very adamant. I have fast-movers over my station, my desire is to have rotary wing aircraft’  because ‘they can PID any type of individual much better than some[one] flying at 15,000 feet dropping a bomb’ (p. 940). [128]  The advantage of the helicopter  – the capacity to come in low and slow – was supposed to be compounded by the persistent presence of the Predator.  The commander of the 432ndAir Expeditionary Wing boasted that his Predators ‘don’t show up on the battlespace and have 15 minutes of hold time to build our situational awareness.  We have a high capacity to make sure that we have the exact, right target in our crosshairs…. Time is not our enemy. We own time.’ [129]

In this case, even though the Predator was on station for more than three hours before the engagement, they didn’t. And it was a matter of space as well as time.  The GFC believed that the roar of the jets overhead had burned the target, because as soon as the F-15s made their pass the three vehicles changed direction; instead of heading south they were now driving along a ridge to the west (Figure 6). [130] At 0655 the JTAC told the Predator pilot that when the F-15s appeared ‘everyone started talking [on ICOM] about stopping movement.’ The occupants of the vehicles were now caught in a trap: all the time they were heading towards Khod they were seen as posing a direct threat, but as soon as they turned away many of those following their progress assumed they were executing a flanking manoeuvre.

That possibility was raised by the JTAC at 0708 – ‘it appears that they’re either trying to flank us or they’re continuing to the west to avoid contact,’ he told the Predator pilot, and asked to be warned ‘if those vehicles turn south’ (his emphasis) – and the Predator pilot replied that his crew ‘can’t tell yet if they’re flanking or just trying to get out of the area.’  The sensor operator thought ‘they’d go back home if they were trying to get out’, and during his interview with McHale’s team the JTAC said much the same. Asked ‘Is there anything this convoy could have done that would have prevented this engagement?’ he shot back: ‘travelled north’ (pp. 1496-7).

‘Flanking’ was a loaded term – one of the key lessons learned from this incident and incorporated into the Army’s guidance was that language like ‘”flanking” can lead to assumptions regarding hostile intent that may be unfounded’ [131] – but the die was soon cast.  For the next hour or more the Predator crew considered every possible route the vehicles could take to bring them down to Khod.  At 0708 the MC thought they were ‘trying to go around this ridge’, and the sensor operator pointed to ‘some low ground here, like a valley that goes straight to the village, it looks like…’  He added that he ‘wouldn’t be surprised if they started heading south-east at some point’ (towards Khod).

Watching from Hurlburt Field, the screeners doubted the flanking call and did their best to close it down.  The primary screener had been following the FMV feed and, with her geospatial analyst, tracking the vehicles on Falcon View, a digital mapping system. At 0710 she discussed their movement with one of her FMV analysts: their assessment was that ‘rather than moving south [they] appeared to be moving west out of the area’ (p. 1407).  She had no direct communication with the JTAC but she immediately sent a message to the Predator crew via mIRC saying it ‘looks like they are evading the area’.  In reply, the MC told her they ‘may be flanking, too soon to tell right now.’ She was still convinced the vehicles had ‘continued past all of the roads that they could have turned and been about to flank blue [coalition] forces’, so she sent a second, urgent mIRC message: ‘too far away from blue forces to be flanking.’  The response from the MC was dismissive – ‘They were spooked earlier from [the F-15s]’ (p. 1392) – and the same FMV analyst complained to McHale that the Predator crew ‘were very quick to disregard our assessments….  The MC comes up and tries to convince us that this is hostile forces.  Their desire to engage targets gets in the way on their assessments’ (p. 1408).

The Predator pilot had a different interpretation of what took place.   In his eyes pursuing the possibility that the vehicles were flanking was ‘the most conservative call’.  One of McHale’s team raised his eyebrows at that; as a former brigade commander he took ‘conservative’ to mean ‘I don’t fire’.  But the pilot stuck to his guns.  To him a conservative call was about ‘keeping our guys on the ground safe’, and he was unwilling to make ‘any hasty calls’ about the vehicles evading the area.  He elected to make what he believed were ‘the safest calls for our guys on the ground’ (p. 915).

Perhaps for that reason, the primary screener’s interpretation was never passed to the JTAC (p. 22). [132]   Her immediate superior, the Mission Operation Commander at Hurlburt Field, told McHale that ‘the biggest wild card is what these guys [the Predator crew] are telling the dudes on the ground’ (p. 594) – and what they were not [133]– and the screeners had no access to that information.  Their only points of contact were via mIRC with the MC at Creech and with the Operations Center at SOTF–South.

The Predator crew remained alert for every possible route that would take the vehicles down to Khod.  At 0716 the JTAC asked for an update on their position and direction of travel, and – following the sensor operator’s suggestion – the pilot told him ‘we’re coming up on a valley here, so we’ll be able to tell if they’re turning south towards you…’  A few minutes later he told the crew: ‘Does kinda look like he’s turning south here, huh, maybe?  No? (Expletive) I can’t tell!’  Throughout these and subsequent exchanges the will of the Predator crew to have the vehicles turn south was almost palpable, which would (in their eyes) have validated the strike to which they were now committed: ‘Still a sweet fucking target,’ exclaimed the sensor operator.

At 0719 the MC raised the possibility that the vehicles were leaving the area, though only on the crew intercom and without mentioning that this was the screeners’ assessment – ‘They could[‘ve] got spooked earlier and called it off’ – only to discard it as soon as the pilot again asked: ‘They are turning south, huh?’  The MC immediately agreed, pointing to a road, and the pilot radioed the JTAC: ‘It looks like the road we are following currently trending to the south, so back to the south at this time…’   He estimated the vehicles were now around six nautical miles (11 km) from the nearest coalition forces at Khod.  And yet doubts continued to surface; this was a difficult landscape to read from 14,000 feet. ‘I really don’t know, man,’ the pilot confessed at 0722.  Would they ‘take this valley to the south and run?  Or if they’re going to go back towards our guys, or what?’   A few minutes later the sensor reassured him. In a mile or so ‘they might have a chance to turn east.  I think there’s a road that cuts through these ridges…’

They had to wait for confirmation because all three vehicles juddered to a halt for more repairs.  At first it appeared to be just another puncture, but as the delay dragged on it seemed to be more serious. One of the men appeared to have crawled under the Hilux to work on its suspension, so the Predator crew concluded they had hit something when they forded the river.  ‘You gotta pretty much know how to fix a vehicle if you live in Afghanistan,’ the MC would observe later on.  ‘When something breaks in Afghanistan, it probably breaks pretty good.’

0730

While the vehicles were at a standstill – they would not be able to resume their journey for another half hour or more – the screeners were asked about the demographic composition of the occupants, and this time the pilot did pass their assessment to the JTAC: ’21 MAMs, no females, two possible children.’  ‘When we say children,’ the JTAC asked, ‘are we talking teenagers or toddlers?’ Without consulting the screeners the sensor operator advised the pilot they looked to be about 12, ‘more adolescents or teens’, and he agreed: ‘We’re thinking early teens,’ he told the JTAC.  The screeners confirmed but then updated their call.  ‘Only one adolescent,’ the pilot radioed the JTAC, who replied that ‘12-13 years old with a weapon is just as dangerous.’  McHale was repeatedly told that age had a different meaning in Afghanistan.  The GFC explained that the Afghan forces with whom they worked included fighters as young as 12 – ‘if they can carry a gun, they will fight’ –  and that the definitions of adolescent ‘for Americans versus Afghans are completely different’  (p. 943).  To the JTAC an adolescent was ‘someone that is 15 years old, a young adult.  We have [Afghan National Army], [Afghan National Police] and [Afghan Security Guards] that work with us, and they are teenagers. They are not 15 years old by American standards.  I’ve seen them be fairly cold-blooded on the battlefield and I know that the insurgent forces have a lot of young men working for them, supporting the Taliban’ (p. 1484). In his view a ‘military-age male’ could even be ‘as young as 13 years old’ (p. 1485).   These are instructive glosses because they accentuate the differences between Afghan and American culture – one of the mistakes of the cultural turn described by US counterinsurgency doctrine was its failure to acknowledge co-incident similarities between American and other cultures, which I suspect made empathy all the more difficult to achieve – and because the key differences are those that can be read as prejudicial and ultimately hostile.

By now the Predator crew had become so convinced by the subtitles they had been adding to the silent movie playing on their screens that they were turning negatives into positives.  The absence of rifles when the passengers got out was explained away – ‘They probably mostly left their weapons in the vehicles’ – and when the JTAC told them he was looking for more than AK-47s,  ‘something like a mortar, or something large and fairly obvious’, the pilot promised ‘we’ll keep our eyes open but we haven’t seen it yet.’  That dangling ‘yet’ was pregnant with meaning, and a few minutes later the Predator crew speculated that there could be a dismantled mortar in the back of one of the SUVs and that the passengers might be sitting on the mortar tubes or they could be concealed ‘anywhere in [the] base plate.’  It is a truism that absence of evidence is not evidence of absence – but it is certainly not evidence of presence.

As they attempted to obtain a clearer view, with the sensor operator adjusting the focus of the cameras and then switching from infra-red to full colour imagery as the sun came up, they looked forward to the airstrike they were convinced was coming. They knew the helicopters would be responsible for attacking the vehicles so the pilot explained they would have to ‘play squirter patrol’ and go after those who escaped from the wreckage. ‘I imagine they’ll run like hell all over the place,’ the sensor operator reflected, and if that happened the pilot told him to ‘follow whoever gives you the best shot and ends with us shooting.’

Meanwhile, in addition to evaluating ICOM and the reports from the Predator crew via the JTAC, the GFC continued to direct ground operations at Khod. As soon as dawn broke his teams had been good to go, and they had been busy carrying out searches, busting locks with bolt-cutters – an electronics store was of particular interest because it was the suspected source of components used for making radio-controlled IEDs – interrogating suspects and taking biometrics (p. 948). In two hours they had detained 70 men for questioning (p. 1356).

As these operations in the air and on the ground continued, Creech and Khod both alive with activity, SOTF-South’s Operation Center at Kandahar Air Field came to life too. It was arranged in tiers of half-moon seats, the lights dimmed, all eyes focused on the displays at their individual workstations, those on duty glancing from time to time at three 10 X 12 screens above their heads showing the FMV feed from the Predator and the route of the convoy on Google Earth and Falcon View.  At the very top and centre – ‘the centre of gravity’, as Petit described it to me – sat the battle captain who had been monitoring events throughout the night. At 0735 the shift changed, and when the Day Battle Captain arrived he found the Night Battle Captain, his operations NCO and the Fires Officer all ‘fixated on … the big screen, watching our Predator feed’ (p. 1224). He was quickly briefed on the developing situation by the Night Battle Captain, who gave him transcripts of the SALT reports, reviewed the route of the three vehicles and explained that they were ‘potentially responding to [an] enemy commander’s call to muster forces and maneuvering to attack’ (p. 2107).  He also told him about the reported sightings of children (‘one or two kids’) and weapons (p. 1226).

It took the Day Battle Captain 15-20 minutes to get up to speed.  He was a former ODA commander, and although he had only deployed with SOTF-South the previous month he had been trained for his role since September and was both more experienced and more assured than his predecessor.  He knew ODA 3124 and the area in which they were operating – ‘They have a very good idea of situational awareness… they know the terrain and they know the enemy’ (p. 1225) – and he had no hesitation in accepting that the occupants of the vehicles were probably hostile and that the GFC had good reason to think the Taliban were gathering for an attack on his position.  He also knew that the Scout Weapons Team had been scrambled in response to the AirTIC, but – in his eyes and those of his colleagues at SOTF-South – this remained a precautionary measure and, unlike a TIC, did not trigger any battle drill in the Operations Center.[134]  He knew too that the OH-58s were currently off station refuelling, and he also understood that the GFC wanted to wait in order ‘to allow the enemy to come in’ close to Khod (p. 1233).  All told, he had no reason to suppose an airstrike was going to happen any time soon.  But neither did he think a ground attack was imminent. Like the screeners he could see from the Predator feed and from the digital map displays that the vehicles had changed direction and were now moving away from Khod.  He opened his folder containing the Tactical Directive to work out ‘at what point, if those forces needed to, they could … potentially call fire from any of those assets [aircraft] that were on station.’ He was unsure – he had never seen an airstrike called in such a situation before (p. 1241) – and so he went to get SOTF-South’s JAG (‘someone who was extremely smart with the Tactical Directive’) to ‘help us to review what we are seeing and to put it into his own eyes’ (p. 1228) so they could advise the GFC ‘the next time we were in contact’ (p. 1254). This in itself was unusual: the military lawyer was ordinarily called only once a battle drill had been initiated – following the declaration of a TIC, for example – and where ‘there [were] civilian casualties as a result from [a] kinetic strike’ (p. 1227).  But in this case only an AirTIC had been declared and no battle drill had been initiated.

The JAG, Capt Brad Cowan, was new to Afghanistan – he had deployed in January fresh from the 1st Special Forces home base at Fort Lewis near Tacoma – and also new to his role at SOTF-South.  His previous front-line tour of duty had been with the US Army Trial Defense Service in Iraq in 2006-7, where his primary responsibility had been to represent soldiers at courts martial, boards and criminal investigations. The application of International Humanitarian Law, the ROE and the Tactical Directive required different skill sets.  At Kandahar Cowan conducted legal scrutiny of all CONOPS, and  although his targeting experience was limited – and he had been involved in only one incident involving civilian casualties, just two weeks earlier, the result not of an airstrike but of a combat patrol returning fire from a residential compound – he was commonly called to the Operations Center to advise on the use of air support and so he knew that there was little lead time for dynamic targeting. [135]  One of the NCOs ran over to give him the mIRC printouts, which he read as he hurried to the Operations Center, and when he arrived shortly after 0800 he scanned the SALT reports, watched the Predator feed on one of the giant screens and jotted down notes on the Rules of Engagement and the Tactical Directive (p. 608).

Meanwhile Colonel Gus Benton, the commander of Combined Joint Special Operations Task Force – Afghanistan (CJSOTF-A) at Bagram Air Field, the link above Kandahar in the Special Forces chain of command, was heading over to his Operations Center. This was his fourth tour of duty in Afghanistan, and like all field-grade officers he had wake-up criteria but his staff had never had occasion to disturb him before (or perhaps never dared to).  But early on that Sunday morning his Night Operations Chief had phoned to alert him to the developing situation with ODA 3124.  ‘I was told we had [a] TIC’ (p. 527), he recalled, though he couldn’t remember ‘specifically what he told me, I just said “Roger, okay, got it”’ (p. 542). He got up and monitored radio traffic on his desktop receiver until he decided to dress and go over to the Operations Center.  He did not wait for a briefing, he told McHale: ‘I just walked in and said “Have we dropped?”’ (p. 543). It was a characteristically blunt question but it did not elicit the answer he expected. CJSOTF-A’s JAG had not been called (he never was), but Benton’s deputy did his best to justify the GFC’s tactical patience.  He was a former ODB commander who had served in Tarin Kowt in 2005-6 and had experience of similar situations, and he told Benton he thought the GFC was right to wait until the vehicles were within sight of Khod.  ‘I said that is what we did, we let them come to us so we can get eyes on them,’ he told McHale. ‘During my time I never let my guys [in the ODAs] engage with [Close Air Support] if they couldn’t see [the target]. I said that is great and Colonel [Benton] said “that is not fucking great” and left the room’ (p. 758).

The two men had a fractious relationship, and his deputy was worried that Benton was going to call down to Kandahar and order a strike. True to form, at 0820 Benton contacted SOTF-South and demanded that its commanding officer be brought to the phone. The Day Battle Captain immediately went to fetch Petit.  When he was woken up – he too had wake-up criteria but nobody had alerted him to what was happening – Petit was taken aback at the peremptory summons and frankly ‘ticked off’ that he had been brought in ‘so late in the game’ (p. 1085). The Day Battle Captain did his best to explain the bare bones of the situation as they hurried back to the Operations Center, but it took less than a minute and Petit was hardly well prepared when he picked up the phone.  During their short and no doubt terse conversation Benton did not issue a direct order to strike the vehicles but to Petit his meaning and intent were unmistakeable: ‘his guidance was to put lethal fires on them’ (p. 1094) because he was convinced ‘this was a target that was right for an engagement’ (p. 1112).

In his own evidence, Benton said that he told Petit he wanted ‘to make sure we minimise collateral damage’:

‘Let’s not wait until those forces get on top of our guys to take it out.  What I saw on the screen was vehicles, empty roads as the element [vehicles] moved, no villages or compounds in the direct vicinity. I thought as if I were pulling the trigger; a pattern like this maneuver, this JPEL moving along this road, no significant collateral damage.  The conditions were right based on what I understood for an effective target’ (p. 530). [136]

The first part made sense.  The Tactical Directive limited attacks against residential compounds in order to minimise civilian casualties, and by then the vehicles were in open country (‘empty roads, no villages or compounds’) heading through a wadi that the GFC described as a ‘rat-line’, a supply route used by the Taliban (p. 1360).

But the second part was more problematic.  Benton endorsed the GFC’s early belief that a ‘High Value Individual’ (HVI) on the JPEL target list was among the passengers, though he later admitted he had no direct knowledge of one at all. In any case, he had other, more urgent reasons to want a strike.  He was convinced that the vehicles and their occupants displayed a suspicious ‘pattern of life’ (a phrase he repeated several times) – that the vehicles were maneuvering tactically (’that pattern of maneuver’) – and that there was no time to waste.

Benton said he thought time was running out because coalition forces were ‘still prosecuting objective Khod’ and ‘the Pred feed [showed] vehicles moving to reinforce… getting closer….’   There was nothing complicated about it; unlike the Predator crew, and eventually the JTAC and the GFC, he did not debate whether the vehicles were evading or flanking because he was convinced they were still heading directly to Khod. When his Night Operations Chief woke him up he may have been told the distance from the convoy to coalition forces, he wasn’t sure, but given the time between that wake-up call and his arrival in the Operations Center Benton concluded that ‘obviously they have gotten closer, in my head they have gotten closer’ (p. 552). He made the same assertion multiple times (‘vehicles moving towards objective Khod’) until an exasperated colonel on McHale’s team pressed him on how he knew. Benton admitted he never consulted a map, but looking up at the Predator feed on the wall and ‘seeing the vehicles move towards the objective’ he decided he ‘needed to make the call to Lt Col [Petit].’  When he was asked to confirm the vehicles were still heading south, Benton blustered: ‘There [was] no way for me, Pred feed, vehicle moving on the road, to make that discernment, whether we are talking south or north…’  The colonel pointed out an icon in the lower left corner of the FMV feed that showed the direction of tracked movement. The vehicles were moving southwest not south.  ‘Okay,’ Benton responded, ‘well I missed that’ (pp. 546-7).

But the colonel had not finished with him:

‘Now here’s why we are asking.  If you go back over here [indicating the map], objective Khod, vehicles first identified and then throughout the morning, as you can see, initially moving in that direction.  But then they are tracked all the way over here – there’s the objective.  And then they continue off to the southwest, so we were a little surprised when you mentioned vehicles moving towards objective Khod…  If that helps paint the picture’ (pp. 547-8).

‘I will take a hit on that,’ Benton responded – a remarkably insensitive choice of words in the circumstances – before rallying and defiantly asserting that distance did not matter to him: ‘I would have pulled the trigger on a dynamic target thousands of kilometres away…’ (p. 551).  A Predator pilot might well do that – Creech was more than 11,000 km away – but not a commander on the ground.  For one of McHale’s legal advisers reminded Benton that the Tactical Directive madedistance matter because it had a direct bearing on whether a target posed an immediate or imminent threat (p. 550).

Benton was not alone in his casual attitude towards geo-location. His Night Operations Chief told McHale that from the time they woke Benton until he walked into the Operations Center ‘nothing changed’ and they briefed him accordingly. And he too insisted that when the vehicles were hit they were closer to Khod than when they were first spotted.  ‘It’s hard for me to stay in my seat,’ exclaimed one exasperated member of McHale’s team (maybe the same one).  ‘It’s about 5½ kilometers when they start in the north and 15 kilometers [nine miles] when they got struck.’  ‘What’, he wanted to know, is ‘the responsibility of the Ops Director with situational awareness and understanding?’ (p. 1472).

It was a good question, because the calibration of distance involved more than reading the Predator feed correctly.  As soon as Cowan arrived in the Operations Center at SOTF-South he had asked for ‘a straight-line distance between the team and the convoy’ precisely because he wanted to know whether the vehicles posed an imminent threat to coalition forces (p. 611).  One of the NCOs measured it on a Google map overlay as 12.8 km (eight miles) (p. 604), but observers at different locations had different ideas about how that translated into time.  The lieutenant commanding SWT1 thought it would have taken the vehicles ‘at least a couple of hours’ to reach Khod – which prompted one of McHale’s team to ask him ‘so what is “imminent threat” again?’ (p. 783) – while the pilot flying trail reckoned it would have taken them ‘three hours, give or take’ (p. 1441).  But they had latterly picked up speed – at 0708 the Predator pilot reported they were ‘hauling pretty good’ and by 0717 they were travelling ‘faster than the past hour, fastest yet’ – and perhaps for this reason the Fires Officer at SOTF-South thought ‘it would have taken 35-45 minutes [for them] to get back to where the team was’ (p. 723), while the GFC believed they ‘would be on me in fifteen to twenty minutes’ (p. 980).  Cowan provided no estimate of his own but given the distance he did not believe the vehicles constituted an immediate threat – though in the course of a protracted discussion with the senior legal adviser on McHale’s team he tied himself in knots, arguing that they did pose an ‘imminent threat’ before adding ‘imminent to me means immediate’ (p. 614) – and testified that in his view ‘at all times’ the vehicles met ‘the definition of imminent threat’ (p. 653).

Distance was also a key factor for others in the Operations Center at SOTF-South because – unlike Benton – they realised that the vehicles were now much further from Khod than when they had first been spotted.  At the very least – again, in contrast to Benton’s harried urgency – they believed this bought them time. When Petit finished his call with Benton (he had simply listened to his superior and promised to call back after he had been briefed) he admitted he was in a state of ‘near panic’ (p. 1112).  But he relaxed when he heard the vehicles were still so far from Khod: he told McHale ‘we felt like we had time’ to decide a course of action (p. 1113).  The JAG stepped forward and gave Petit his legal opinion: there were insufficient grounds for an airstrike. Not only were the vehicles increasing their distance from coalition forces – moving away rather than closing – but also, and more importantly, they did not constitute a legitimate military target:  ‘I didn’t see anything in that video feed that would indicate a hostile act or hostile intent’ (p. 610). [137]  The likely presence of children also gave him pause.  The resolution of the Predator feed was ‘fairly poor’, he said, so that ‘if someone was being identified [by the screeners] as a child through that view, then he must be fairly young… It must have been obvious that they weren’t a fighting-age male(p. 607).  he absence of heavy weapons was another concern.  He required evidence of ‘something more than just AK-47s,’ he explained, ‘which are not an indication of hostile intent.  Everybody has a weapon in this country.  Something bigger, something crew-served, some mortar system, a larger number of weapons, more than just a few ‘ (p. 613). [138] In sum, Cowan believed that in the circumstances ‘some sort of show of force or potential escalation of force’ (p. 604) would achieve the ‘same effect as engaging the target’ (p. 615) and unlike an airstrike would be consistent with the Tactical Directive. [139]

Almost immediately after Petit hung up, another secure phone rang.  It was a major that Petit knew from Task Force–South, a Ranger-led Special Operations unit also based at Kandahar Air Field, whose unit carried out HVI targeting and relied heavily on remote platforms for ISR. [140] They had also been watching the Predator feed, and he told Petit this situation was ‘along the lines of their mission set.’  He offered to send an Attack Weapons Team – AH-64 Apache helicopters – to conduct an Aerial Vehicle Interdiction (AVI) in which the vehicles would be forced to halt, ideally without opening fire, so they could be searched and the occupants questioned (p. 725).  This was in accordance with standard US military doctrine – which stipulates that ‘missions attacking targets not in close proximity to friendly forces … should be conducted using air interdiction (AI) procedures’(my emphasis) [141] – so that if the occupants proved to be hostile they could be engaged in full knowledge of their intent.  This chimed with Cowan’s recommendation, and the Day Battle Captain agreed that an escalation of force was the right response in the circumstances (‘the best bet’: p. 1230).  The Fires Officer was also cautious, but preferred a different course of action. In his view, the vehicles had changed ‘from tactical maneuvering to just travelling,’ as one of McHale’s team put it (p. 724), and he suggested that ‘we continue to follow with the Predator and watch to see where they go.’ This had been the GFC’s original intention too.  ‘I thought we could get better intelligence by watching to see where they go and who they link up with,’ the Fires Officer told Petit, ‘rather than interdicting them.’ But Petit had evidently absorbed enough of Benton’s argument – and the requirements of the Tactical Directive – to make him reluctant to wait and see what developed.  If they failed to act, the vehicles might end up ‘somewhere we couldn’t stop them at that point, like a compound’ (pp. 725-6).   And so it was agreed to arrange an AVI.

The GFC was wholly unaware of these developments at SOTF-South and while all the discussions were taking place at Kandahar he had decided that his situation at Khod had become much more precarious.  At 0744 the JTAC had told the Predator pilot that:

‘We just had [ICOM] traffic saying that all mujahedeen needs to start moving and come together. We currently have two groups that are talking to each other.  I suspect that one of them is the group in the vehicle[s], and another [is the] group to the south of us.’ [142]

The GFC and the JTAC had no way to confirm their suspicions – presumably they had nothing from the NSA cell – but the GFC was also receiving radio reports from the outer checkpoints of his cordon to the north and the south that women and children were leaving their villages and ‘pushing to open ground’ – ‘which is normal when an attack is about to happen’ (p. 1356): ‘a direct reflection of an impending attack’ (p. 947) – and he could also hear a checkpoint manned by Afghan Security Guards much further to the south, outside his immediate area of operation, exchanging fire with insurgents who were using heavy machine guns abandoned by the Red Army when they withdrew from Afghanistan in 1988-9 (p. 947). [143]

By now the possibility that the three vehicles could be anything other than a threat had been abandoned by the GFC and the JTAC.  At 0806 the JTAC radioed the Predator pilot: ‘Need to know as soon as they turn eastbound and come back to the green zone towards the direction of Khod.’ The pilot replied: ‘As soon as they break off to the east we will let you know’  (my emphases).  No longer ‘if’ but ‘when’: the conditional had become the imminent because the JTAC had told the pilot that they had received ‘special intelligence that the [northern] group is trying to link up with another fighting force out of [Pay Kotal: a village to the south] that is moving up to Khod to engage our positions.’ [144] Calling those moving up from the south another fighting force sealed the fate of the occupants of the three vehicles travelling from the north. The possibility of encirclement had been preying on the GFC’s mind since the first reports of Taliban fighters converging on Khod from the south and the north at 0450 (above, p. 00), and at 0607 he had received another report that ‘insurgents state they have enough bodies to fight’ and ‘we won’t be able to leave the area’ (p. 937).  The ICOM chatter at 0744 had made this seem all the more likely, and the ‘special intelligence’ delivered final confirmation. Putting all this together, the GFC was now convinced that the three vehicles were a Taliban convoy executing a flanking manoeuvre to complete the encirclement of his forces: ‘to close off the envelopment’ (pp. 946). The JTAC had concerns of his own.  He was worried that bad weather forecast for that night and the next 48 hours would prevent the Chinooks returning to ferry them back to FB Tinsley. The contingency plan was to head south and link up with ‘a Commando mission’ that was supposed to come out the next day, but if they were encircled their escape route would be blocked and they would be trapped (p. 1357).

The GFC duly told SOTF-South that his forces were being ‘enveloped’ (p. 1358), but there was no requirement for him to inform them that in consequence he was about to clear the helicopters to engage the target.  There had been circumstances in the past when ODAs taking fire from a compound had requested permission from the SOTF-South commander for an airstrike; sometimes he had agreed and at other times he had not (p. 1261).  But the Tactical Directive specifically advised caution in striking residential compounds – hence the need to seek permission – whereas in this case the GFC deliberately chose to have the helicopters attack once the vehicles were in open country so the circumstances were different. [145] The GFC was prepared to bring the Predator in too, and at 0818 the JTAC issued the promissory note its crew had been hoping for.  ‘At Ground Force Commander’s discretion,’ he radioed, ‘we may have [the OH-58s] come up, action those targets and let you use your Hellfire for clean-up shot.’

All of this was within the authority of the GFC.  The Fires Officer at SOTF-South was primarily responsible for arranging air cover, both ISR and strike capability, but he explained they routinely established a decentralized ROZ (Restricted Operating Zone) so that once the aircraft were on station they were under the control of the JTAC acting for the GFC (p. 728). [146] This maximised the GFC’s freedom of manoeuvre, but it also recognised that the JTAC was in direct communication with the supporting aircraft so he and the GFC could have additional intelligence that was not immediately available to SOTF-South. An ROZ typically had a radius of 10 km or less – which would have placed the three vehicles outside its perimeter – but the Fires Officer was unconcerned because he believed the OH-58s were ‘not for the vehicles’ but for ‘what we thought was going to be a large TIC on the objective.’  He was emphatic about that, echoing the GFC’s original plan to allow the vehicles to close on Khod: ‘The [Scout] Weapons Team that was pushed forward to his location was not for the vehicles, it was for the possibility of a large TIC on the objective [Khod] based on the ICOM chatter that we had’ (pp. 734-5).[147]

But in the GFC’s eyes the situation was now very different, and even though he had no obligation to inform the Operations Center of his revised plan he was insistent that at ‘some time between 0820 and 0830’ he sent a SALT report to SOTF-South telling them he was going to clear the OH-58s to engage (p. 955) in response to an ‘imminent threat’ to coalition forces (p. 1495). [148] Astonishingly, McHale’s team were unable to verify his testimony because the pre-strike transcripts of SALT reports available to them ended at 0650 (p. 948). [149]  No explanation for their absence was forthcoming, but the Day Battle Captain was equally insistent that once SOTF-South had agreed on an AVI, had the GFC contacted the Operations Center ‘and said that the OH-58s are on station and this is their tasking and purpose, I am going to give authorization to engage this convoy, we would have stopped that’ (p. 1258).  It would almost certainly have had to be that way round, because it was so simple matter for SOTF-South to reach down to the GFC.  The Fires Officer explained that the batteries that power the ODA’s satellite communications ‘don’t last long, and it was a “remain over day” mission so I am sure they had it turned off.’ ‘If we had pertinent information that we need to push,’ he continued, ‘we tell them to contact us on iridium [satellite phone]’  (p. 724).  This required SOTF-South to send a mIRC message to the Predator crew, the pilot to relay the message to the JTAC via radio, and the GFC then to power up the iridium phone. [150]

NOTES

[101]The testimony offered by the major in command of the AC-130 claimed a reluctance to strike that is not evident from the communications transcript.

‘Without the [Redacted: ICOM?] I would not have considered [the vehicles] a threat because they were so far from the friendly forces…  They were not an obvious direct threat but enough [of a] threat that I wanted to keep the sensors there… I don’t remember us telling them [the JTAC and GFC] specifically that they were hostile and a target.  I do remember the JTAC would say a lot of things that would lead up to a fire mission and then he would stop.  Of course my crew was ready to go but we need[ed] a fire mission’ (p. 1419).

But he also claimed that the JTAC ‘had the same understanding that we did’ and that, had he been given a fire mission, he would have been comfortable executing it (p. 1420). The Predator pilot thought there was more to it than that. ‘Talk of tactical maneuver [see above, p. 00] started with the [AC-130],’ he insisted, and ‘before they departed they were actually looking to engage these targets before running out of [fuel]’ (p. 909).

[102] The sensor operator offered anecdotal evidence to support the pilot’s inference. ‘There was a shot a couple of weeks ago, they were on those guys for hours and never saw them, like, sling a rifle, but pictures we got of them blown up on the ground had all sorts of [shit]’.  Even this was barbed: evidently there had been no sign of any weapons, yet they were still ‘blown up on the ground’.

[103] Over the objections of the senior officers from Special Forces who read his draft report, McHale recommended the term be banned: ‘I believe eliminating the term MAM better serves the counterinsurgency strategy as the term has come to presume hostility’ (p. 69), and McChrystal concurred.  The report retained its central objection: the term ‘implies that all adult males are combatants and leads to a lack of discernment in target identification’ (p. 49).  Yet Nick Turse found that the mindset and even the term remained active: ‘America’s lethal profiling of Afghan men’, The Nation, 18 September 2013; see also Sarah Shoker, ‘Military-Age Males in US counterinsurgency and drone warfare’, unpublished PhD thesis, McMaster University, April 2018.

[104] Allinson, ‘Necropolitics’ p. 123.

[105] At McHale’s invitation all the previous mIRC messages were read into the record from the mIRC printout by the senior NCO in charge of Intelligence at CJSOTF-A’s Operations Center at Bagram during the night shift.  It is impossible to know whether these were verbatim, but if they were then all of these messages referred to children without qualification. The NCO in question subsequently maintained that ‘it was all possible before the engagement’: but none of his readings included that qualifier.

[106] He was not alone.  At 0546 the MC read from mIRC that SOTF-South ‘called the little small guys midgets.’

[107] This was presumably an evidentiary precaution; the metadata would have included co-ordinates and other information not visible on the image itself.  No action was recorded until 0616, when the occupants left their vehicles to pray, and the sensor operator announced: ‘Stand by on that zoom out and drop metadata.  I just wanted to scan everybody, I’ll get them a picture.  I’m going to freeze it here for about 10 seconds then I’m going back.’  But nothing seems to have been made of any of this by McHale’s team, unless it is buried in the redactions.

[108] The unsupported claim cut both ways.  The commanding officer of the 15th Reconnaissance Squadron e-mailed McHale to suggest that the presence of ‘human shields’ would ‘make everyone (including the JTAC) be more cautious about shooting’ (p. 897), and the Predator crew subsequently wondered how that would affect the Rules of Engagement (below, p. 00). But the use of the term was freighted with the implication that the occupants of the vehicles were mostly Taliban.

[109] In the Kunduz incident (above, p. 00), the hijacked tankers had first been located by a B-1 bomber which had to withdraw in the early hours of the morning because it was running low on fuel; in order to ensure continued air support the ISAF commander relied on what Wilke, ‘Seeing’, p. 1035 calls the ‘enabling fiction’ of a ‘TIC’ even though the tankers were 8-10 km from his own position and he had no forces in the immediate area of the target.  Noah Shachtman described ‘TIC’ as ‘the most abused phrase in the Afghanistan campaign. What started as a cry for help has now come to mean almost anything…’: ‘The phrase that’s screwing up the Afghan air war’, Wired, 12 September 2009.  What is being described here, however, is a different enabling device; McHale described an AirTIC as an ‘improper declaration’ that put other troops at risk by ‘allocating air assets to a situation which does not require air support’ (p. 48). The appropriate term for a potential engagement was ‘priority immediate’, and the Director of the CJSOTF–A Operations Center at Bagram explained that a TIC number was assigned to those calls (too), which served to ‘alert us all that a unit may be getting involved in a TIC soon’ (p. 807). The practice was not confined to Special Forces; the ‘Afghan War Diaries’ include multiple instances of AirTICS being declared by regular forces: https://wardiaries.wikileaks.org.

[110] Hence ‘Scout’ Weapons Team flying OHs (‘Observation Helicopters’); an Attack Weapons Team would typically consist of two AH-64 Apache helicopters (where AH  designates ‘Attack Helicopters’).

[111] A battle captain assists the battalion’s executive officer in orchestrating (supervising, synchronizing  and coordinating) the running of a Tactical Operations Center; s/he is responsible for overseeing the flow of information – including the SALT reports sent up from units in the field – tracking ongoing operations, and arranging appropriate support.  A battle captain follows standard operating procedures, including initiating ‘battle drills’ (a rapid sequence of pre-set actions) in specified circumstances.  For a detailed discussion see pp. 1100-1.  The battle captain is a central actor in the bureaucratic management of later modern war, but the situations with which s/he is confronted often require a more fluid responses than these programmatic systems imply: see Elizabeth Owen Bratt, Eric Domeshek, and Paula J. Durlach,  ‘The first report is always wrong, and other ill-defined aspects of the Army Battle Captain domain’, Intelligent Tutoring Technologies for Ill-Defined Problems and Ill-Defined Domains (2010).

[112] The OPCENT director similarly described his skills as ‘rudimentary at best’ (p. 999).

[113] The GFC was only too well aware of the lack of support and what he characterized as a ‘huge communication breakdown’.  ‘I never had these issues before,’ he explained: ‘If for some reason I was in this situation last rotation … [the battle captain] was smart enough to … say call me on the phone and we would walk through certain things. “This is what I am tracking, why don’t you concentrate on this, and if this develops I will push it to you’” (p. 983). He felt uneasy, he confessed, because ‘we are operating by ourselves, and not with direct support like we are supposed to have’ (p. 984).  Part of the problem – perhaps – was that they were strangers to SOTF-South (see note 63) and, as the GFC admitted himself, ‘we never integrated our systems with them’ (p. 985).

[114] This was a serious failure, but McHale’s team faulted a battle rhythm in which all three field-grade officers were asleep at the same time. ‘I would have had an easier time if you said you had a field grade up at 0600 because we know the mission is kicking off at 0605,’ one of the investigating officers said.  ‘But you don’t…’ (p. 1015).

[115] This was a central finding of McHale’s investigation, which concluded that the GFC was ‘overly tasked’ (pp. 34-5), as a direct result of the lack of input or support from the Special Forces command posts at Kandahar and Bagram Air Fields.

[116] See Craig Jones, The war lawyers(Oxford: Oxford University Press, forthcoming).

[117] He was responding to a question about the presence of an ‘operational law attorney’, a JAG incorporated into the kill-chain and conversant with air targeting; there was a JAG present during McHale’s initial telephone interview with the Predator crew, but she was introduced as ‘the Creech AFB JAG’ who was representing ‘the Air Force interests’ and her expertise presumably lay outside ‘operational law’ (p. 902). The Safety Observer explained his own role as ‘basically a safety mechanism to ensure they are performing safely and to provide a sanity check [sic] before employing the missile’ (p. 1448).

[118] The 9-liner in this case is a standard Air Force targeting brief that specifies (1) the ‘initial point ‘, (2) heading (to target), (3) distance, (4) elevation, (5) target description, (6) target location, (7) target mark (laser designator &c), (8) friendly force location and (9) aircraft exit route.

[119] The commanding officer of the 15th Reconnaissance Squadron explained that ‘If it is an HVI [High-Value Individual] where there is no imminent hostile act or hostile intent, not only do we need the JTAC’s clearance on that, the GFC will go through the CAOC and get what is called the joint targeting method, so it is a kind of dual clearance’ (p. 887).

[120] Hoog, ‘Air power over Afghanistan’, p. 249. He explained that there was a distinction between a TIC, which he too described as ‘a 911 call for kinetic support’ and a ‘Priority’, which was ‘a 411 call’ for ISR (i.e. information and, by extension, overwatch).

[121] Jack Mulcaire, ‘The pickup truck era of warfare’, War on the Rocks, 11 February 2014 at https://warontherocks.com/2014/02/the-pickup-truck-era-of-warfare.  The Toyota Hilux is a classic version of a technical truck – and the lead vehicle was identified as a Hilux.

[122] Only two witnesses offered any informed gloss on the hostile interpretation of the prayer.  The Day Battle Captain suggested that it ‘possibly’ indicated ‘these are mujahedeentaking their last prayer prior to engaging forces’ (p. 1254), and the primary screener agreed: ‘To us that is very suspicious because we are taught that they do this before an attack’ (p. 1389).

[123] National Bird.

[124] Alan Norris, ‘Flying with the Wolfpack’, Heliops International 65 (2010) 40-49.  Each helicopter was armed with two Hellfire missiles and four folding-fin aerial rockets.

[125] The transcript of the Kiowas’ radio traffic (pp. 336-341) contains no times; wherever possible I have interpolated these transmissions with those between the JTAC and the Predator pilot, which was conducted on a different frequency.

The reference to ‘heavy weapons’ in this message is puzzling; the Predator crew had not succeeded in identifying any, and the only SALT report mentioning ‘heavy weapons’ was at 0330 and referred to Taliban forces moving up from the south before the vehicles moving down from the north had even been detected (p. 1889). The source of the transmission is unclear; most of the messages to the JTAC were from the lieutenant, but the pilot flying lead said that he ‘called to tell him [the JTAC] that we were on our way and that it would be about 30 minutes until we were in the area.  He told me that it was roughly 30-50 MAMs to his north that we would be looking to engage’ (p. 514).  But this exchange does not appear in the transcript in this form, though it obviously overlaps with the message I have cited here and attributed to the lieutenant in command of SWT1.  The intended recipient is also unclear; the JTAC would have known (in fact, supplied) all this information, so it is possible that this was a confirmatory message either to TF Wolfpack’s Operations Center at Tarin Kowt or to the JTAC at FB Ripley who had been tasked with communicating with the helicopters until they were in range of the JTAC at Khod.

[126] The only qualification came from one of the crew in the trail helicopter: ‘Initially I thought we had a kinetic TIC, but it turned out not to be…. [We] got information it was more of elements maneuvering on [the ODA’s] position’ (p. 1438).

[127] McHale’s report included a map of SIGACTS (‘significant activities’) in Uruzgan  which was redacted (p. 376), but raw data for Shahidi Hassas in the 12 months preceding the strike reported 73 SIGACTS, 25 of them involving direct fire, 8 indirect fire, and 7 small arms fire.  I have taken these figures from the Afghanistan SIGACTS files kindly made available by Vincent Bauer at https://stanford.edu/~vbauer/data.html

[128] Many at SOTF-South were also taken aback: ‘We did not push fast movers to them,’ the Night Ops NCO at Kandahar told McHale: ‘The fast movers just came over the area without our knowledge’ (p. 1505).  The Night Battle Captain asked how this could have happened and was told ‘when an AirTIC is opened everyone wants to get on it.  When they hear AirTIC they think worst case scenario’ (p. 1545).  But none of the available communications authorizing air cover referred to an AirTIC – this was, as far as the responding aircrews were concerned, a TIC – and at 0702 the MC referred to it as ‘an actual TIC.’  The Fires Officer at SOTF-South evidently realized that the F-15s had been sent instead of the A-10s that had been half-promised and told them to hold well to the south of the vehicles’ position and to contact the JTAC at FB Tinsley who would control them ‘until the actual TIC happens near the village of Khod’ at which point he would pass them off to the JTAC there (p. 721). After the GFC’s angry phone call they were sent off station.

[129] Col. Peter E. Gersten, quoted in Donna Miles,  ‘Unmanned Aircraft crews strive to support warfighters. American Forces Press Service, 13 November 2009.

[130] One of the helicopter pilots heard the F-15s being ordered off, but in conjunction with the Predator pilot reporting his aircraft was descending to 13,000 feet (above) thought the F-15s had been cleared to engage ‘but due to low ceilings and conflicting altitudes with the Predator UAV they were pulled off target’ (p. 420).  He was wrong, but the belief that the F-15s had been cleared to engage conceivably reinforced his own sense of the legitimacy of the target.

[131] Afghanistan Civilian Casualty Prevention: observations, insights and lessons (Fort Leavenworth KS: US Army Combined Arms Center/Center for Army Lessons Learned [CALL], June 2012) p. 30.

[132] Since her calls were not radio messages they do not appear in the communications transcript but in the body of the consolidated files.  They were not shared with the JTAC; the screeners had no means of contacting him directly, though they did have mIRC contact with SOTF-South. The Air Force investigation into the actions of the Predator crew concluded that the pilot ‘acted responsibly by not identifying flanking or evading’ and that ‘the assessment of flanking was made by the GFC’. All the pilot did, Otto insisted, was to pass ‘convoy position reports’ – position and direction – as requested so that the JTAC could plot them and obtain ‘an accurate picture of the convoy’s movement.’  This in turn allowed the GFC to ‘determine the nature of the movement (flanking, enveloping, evading) based upon his experience, knowledge of the local area, and other inputs he alone receives’ (Commander-Directed operational assessment, p. 36).  But the GFC made his assessment without being told of the contrary interpretation from the primary screener, and she was equally unaware that her message was not forwarded  – which is why she and her team were astonished when the first vehicle was struck (p. 1407.

[133] This was another of the lessons learned.  ‘Vehicles that were perceived as a possible threat to ground forces were moving away from the area, but the surveillance platform did not communicate this to the ground commander’: Afghanistan Civilian Casualty Prevention, p. 31.  The situation was not as straightforward as the vignette implies, but the Predator crew certainly did everything possible to discount the possibility that the vehicles were moving away from Khod.

[134] A battle drill is a set of standard, pre-planned and prescribed procedures that require minimal orders to execute.  When a TIC is declared, Petit explained, it takes priority over everything else.  The battle captain co-ordinates the management of information and assets, which includes bringing up the original CONOP and the relevant maps on the screens, clearing the primary satellite channel for communications with the GFC, and preparing all those in the Operations Center to deliver ‘aviation support, ISR support, MEDEVAC [medical evacuation] support or fire support’ as necessary.  But this was only an AirTIC and when he arrived at the Operations Center the TIC light ‘was not on and … the team was not under fire (pp. 1083-4).

[135] ‘Dynamic targeting’ is directed against so-called ‘targets of opportunity’ and takes place outside the ambit of pre-planned or ‘deliberative targeting’ which is lodged within the regular air tasking cycle.  See Joint Targeting (Joint Publication 3-60, 31 January 2013) II.2.

[136] The JPEL refers to the Pentagon’s Joint Effects List, a list of High Value Individuals (HVIs) preauthorised for targeted killing: see note 98.

[137] He had been told about the dawn prayer and that it was ‘Enemy TTP [tactics, techniques and procedures] to pray before battle’ (p. 611); he offered no comment but clearly regarded that as circumstantial evidence.

[138] This was crucial, yet the brief to the Scout Weapons Team specifically mentioned the presence of ‘heavy weapons’ which had categorically not been identified (above, p. 00).

[139] McHale concluded that the decision to engage the vehicles was within the ROE but violated the intent of the Tactical Directive (p. 22).

[140] Sean Naylor, Relentless strike: the secret history of Joint Special Operations Command (New York: St Martin’s Press, 2015) pp. 359-65.  Maj Gen Nick Carter described Task Force-South as executing ‘a specific clinical function’ – JPEL targeting – whereas SOTF-South was ‘running a different sort of battle, so it’s less precise in its outcome and its effects’ (p. 582).

[141] ‘Types of Terminal Attack Control’, at https://www.doctrine.af.mil/Portals/61/documents/Annex_3-03/3-03-D19-LAND-Type-Terminal-CTRL.pdf.

[142] This passage is redacted from the LA Times transcript but appears in this version in the communications transcript contained in the consolidated file (p. 1954).

[143] The redactions make it difficult to garner more details.  The Afghan Security Guards were a shadowy formation, ostensibly contracted to provide base security but in practice often raised by US Special Forces and used to participate in offensive counterinsurgency operations.  There were also persistent press reports that Taliban were fleeing north from Operation Moshtarak in Helmand.

[144] The source was not given.  If the ‘special intelligence’ came from the NSA it would ordinarily have been put into the mission chat room via mIRC; but the JTAC had no direct access to mIRC.  He obviously did not receive the information via the Predator crew because he passed it to them, and there is no trace of any corresponding message from SOTF-South to the JTAC or GFC.  The JTAC shared the same information with the helicopter pilots immediately after the strike: ‘those vehicles were moving south to link up with some Taliban fighters out of [Pey-e-Kotel]’ (p. 341).

[145] There was of course another difference: coalition forces at Khod were not under fire from the occupants of the vehicles.  This was still supposed to be an AirTIC not a TIC.

[146] An ROZ is a delimited airspace reserved for specific actions in response to a specific operational situation in which the operations of (other) airspace users is restricted.

[147] The Fires Officer also believed that the GFC was now paying more attention to the search at Khod than to the progress of the three vehicles: ‘It was daylight and they had begun clearing that area.  They had been calling up the findings from the objective so I figured he was more intent on that’ (p. 729). He may have been mistaken or misremembered, because the only SALT report available that listed what was seized during the search of the village came in to SOTF-South at 0932 – afterthe strike (p. 1992).

[148] The only person at SOTF-South to mention any sort of advance warning was the Day Battle Captain: ‘They came up on mIRC and said clear to engage vehicles … it was only a matter of seconds [later] that the strike happened’ (p. 723). But he had to have been referring to a message from the Predator crew – since neither the GFC nor the JTAC had access to mIRC – and in any case it must have been later than the SALT report referred to by the GFC, because the helicopters were not cleared to engage until 0843 (see below, p. 00).

[149] During the GFC’s second interview on 5 March he was accompanied by a military lawyer, a Lt Col from the US Army Trial Defense Service (p. 988), who told McHale: ‘The records of the SALT reports end at 0630, the SALT reports continue’ – the GFC testified that ‘we were continuing to send reports throughout this time’: p. 1356 – but ‘they were the only records we were able to obtain, and this would be records that SOTF create when they receive it’ (p. 948).   There were no follow-up questions from the panel; if they investigated the matter, their findings are hidden in the redactions.

[150] Even then there were no guarantees.  At 0658 the Predator pilot relayed a message from the Fires Officer at SOTF-South to the JTAC: ‘He wants you to know that he cannot talk on SAT 102. SERPENT12 [the Fires Officer] can hear FOX24 [GFC] on SATCOM, and is trying to reply.’  The advantage of the Iridium phone over a standard satellite phone is that it relies on a network of polar orbiting cross-linked satellites that provide connectivity in areas wheregeostationary satellites or line-of-sight communications systems cannot (often because they are blocked by mountainous terrain): Brig Gen (ret)  Bernard Skoch, ‘Extra-terrestrial system sharpens tactical eyes on the ground’, Signal Magazine, March 2010.

To be continued

Dirty wars and dispersed geographies of aerial violence

Several years ago we were in Dubrovnik and visited War Photo‘s mesmerising exhibition space in the old town; part of it was devoted to a permanent exhibition documenting the wars in the former Yugoslavia, but part of it was given over to a visiting exhibition by Maria Turchenokova.  One image has haunted me ever since: two or three desperately young Yemeni children, standing in a narrow, shallow crevice in the ground, half-covered by a sheet of rusted corrugated iron: this was their ‘air raid shelter’.  I’ve since searched for the image many times, without success; this isn’t it, but the photograph (of a man peering out of a “shelter” on the outskirts of Saada in 2015)  conveys something of the vulnerability of ordinary Yemenis:

I’ve written on the war in Yemen many times [use the search box to find those commentaries], though almost certainly not often enough, but a sobering report from the excellent Armed Conflict Location and Event Data (ACLED) project in conjunction with the Yemen Data Project has prompted me to return:

ACLED notes: ‘Around 67% [over 8,000] of all reported civilian fatalities in Yemen since 2015, resulting from direct targeting, have been caused by Saudi-led coalition airstrikes, making the Saudi-led coalition the actor most responsible for civilian deaths…. Air and drone strikes were especially deadly for civilians in 2015 and during the Hodeidah offensive in 2018.’

The Yemen Data Project provides this timeline of air strikes (there’s also an interactive map by governorate on the same page):

You can find a summary version of the report from Rod Austin at the Guardian here, which concludes with this prescient observation:

Labour MP Lloyd Russell-Moyle, a member of the committee on arms export controls, said: “These statistics simply underline the fact that our government has enabled Saudi Arabia to destroy the social fabric of an entire country for money. I shudder to think of the consequences of our dirty war in Yemen. A generation of Yemenis now hate Britain as much as they hate the Saudi royal air force that is dropping our bombs on them.”

If you are puzzled by those sentiments, then you should read Arron Merrat‘s in-depth report from the previous week, ‘The Saudis couldn’t do it without us’: the UK’s true role in Yemen’s deadly war’, here:

For more than four years, a brutal Saudi air campaign has bombarded Yemen, killing tens of thousands, injuring hundreds of thousands and displacing millions – creating the world’s worst humanitarian crisis. And British weapons are doing much of the killing. Every day Yemen is hit by British bombs – dropped by British planes that are flown by British-trained pilots and maintained and prepared inside Saudi Arabia by thousands of British contractors.

The Saudi-led military coalition, which includes the UAE, Bahrain and Kuwait, has “targeted civilians … in a widespread and systematic manner”, according to the UN – dropping bombs on hospitals, schools, weddings, funerals and even camps for displaced people fleeing the bombing.

Saudi Arabia has in effect contracted out vital parts of its war against Yemen’s Houthi movement to the US and the UK. Britain does not merely supply weapons for this war: it provides the personnel and expertise required to keep the war going. The British government has deployed RAF personnel to work as engineers, and to train Saudi pilots and targeteers – while an even larger role is played by BAE Systems, Britain’s biggest arms company, which the government has subcontracted to provide weapons, maintenance and engineers inside Saudi Arabia.

Arron documents the dispersed geography of contracted-out aerial violence in forensic detail:

The British bombs that rain down on Yemen are produced in three towns: Glenrothes in Scotland, and Harlow and Stevenage in south-east England. Bombs roll off production lines owned by Raytheon UK and BAE Systems, firms contracted by the government to manufacture Paveway bombs (£22,000 apiece), Brimstone bombs (£105,000 apiece), and Storm Shadow cruise missiles (£790,000 apiece) for the Saudi Royal Air Force. BAE, under government contract, also assembles the jets that drop these bombs in hangars just outside the village of Warton, Lancashire.

Once these weapons arrive in Saudi Arabia, Britain’s involvement is far from over. The Saudi military lacks the expertise to use these weapons to fight a sustained air war – so BAE, under another contract to the UK government, provides what are known as “in-country” services. In practice, this means that around 6,300 British contractors are stationed at forward operating bases in Saudi Arabia. There, they train Saudi pilots and conduct essential maintenance night and day on planes worn out from flying thousands of miles across the Saudi desert to their targets in Yemen. They also supervise Saudi soldiers to load bombs on to planes and set their fuses for their intended targets.

Around 80 serving RAF personnel work inside Saudi Arabia. Sometimes they work for BAE to assist in maintaining and preparing aircraft. At other times they work as auditors to ensure that BAE is fulfilling its Ministry of Defence contracts. Additional RAF “liaison officers” work inside the command-and-control centre, from where targets in Yemen are selected.

[For more on this dispersed geography of aerial violence, see the report by Mike Lewis and Katherine Templar, UK Personnel supporting the Saudi Armed Forces – Risk, knowledge and accountability (2018); for more on Mike, see here].

The image below shows crews from Britain’s Royal Air Force and the Saudi Royal Air Force involved in a joint training exercise, ‘Saudi British Green Flag 2018’.  According to a report in Arab News:

The exercise aims to improve the overall combat readiness of the Saudi Air Force and increase the capacities of crews and personnel through a series of training flights of varying complexity. It allows both forces to share technical knowledge and learn about how the other operates.

Maj. Gen. Haidar bin Rafie Al-Omari, commander of the air base and the exercise, said it is a critical part of this year’s training plan for the armed forces.
“The Green Flag Exercise involves all our air force combat systems supporting Operation Decisive Storm and Operation Restoring Hope (in Yemen),” he added.
“The British Royal Air Force aims to integrate all combat systems, including air combat, air support and electronic warfare, and especially how to use them against the enemy’s land defense systems for maximum operational efficiency.”

‘Restoring Hope’; ‘operational efficiency’: the absurdist language is truly rebarbative.

Arron notes the pariah status of the UK and the US in these joint air wars, even if he doesn’t call it that:

The UK government’s argument that it does not pick the targets in Yemen resembles nothing so much as the logic of the American gun lobby, with its infamous claim that it’s not guns that kill people, but the people who use them. Since 2016, many countries have revoked or suspended arms sales to Saudi Arabia – including Austria, Belgium, Germany, Finland, Netherlands, Norway, Sweden and Switzerland. But Britain and the US, whose planes constitute the backbone of Saudi Arabia’s combat fleet, are still holding out.

There’s more – much more – in the full report.

There is a welcome sting in the tail: on 20 June the UK Court of Appeal ruled that arms sales to Saudi Arabia were illegal – albeit in one respect (but none the less a vital one).

British arms sales to Saudi Arabia have been ruled unlawful by the court of appeal in a critical judgment that also accused ministers of ignoring whether airstrikes that killed civilians in Yemen broke humanitarian law.

Three judges said that a decision made in secret in 2016 had led them to decide that Boris Johnson, Jeremy Hunt and Liam Fox and other key ministers had illegally signed off on arms exports without properly assessing the risk to civilians.

Sir Terence Etherton, the master of the rolls, said on Tuesday that ministers had “made no concluded assessments of whether the Saudi-led coalition had committed violations of international humanitarian law in the past, during the Yemen conflict, and made no attempt to do so”.

As part of its case the government had argued that RAF training (those ‘Green Flag’ exercises captured above, and those ‘in-country services’ described in Arron’s analysis) had made Saudi compliance with international humanitarian law more likely, but their case was shredded.  Mark Townsend reported:

‘[C]ourt documents from the case show that indiscriminate bombing of civilians by the Saudi-led coalition in Yemen took place after British training – sometimes almost immediately after. Three days after Britain provided training – between 27 July and 14 August 2015 – up to 70 people were killed by airstrikes and shelling at the port at Hodeidah.

The following month airstrikes on a wedding in the village of Wahijah, near the Red Sea port of al-Mokha, killed at least 135 people.

In October 2015 repeated airstrikes on a Médecins Sans Frontières hospital in Haidan occurred, despite the hospital’s GPS coordinates being shared with the coalition. The episode prompted the UK to provide further training to the Saudi air force between October and January, including targeting training.

However, in March 2016 airstrikes by the Saudi-led coalition on a crowded village market in Hajjah province killed 106 people. Days later deadly attacks struck a civilian building in the city of Taiz.

Andrew Smith of Campaign Against ArmsTrade, which brought the case, said: “We are always being told how positive the UK’s influence supposedly is on Saudi forces, but nothing could be further from the truth. The atrocities and abuses have continued unabated, regardless of UK training and engagement.

“The training and rhetoric has only served to provide a figleaf of legitimacy to a war that has killed tens of thousands of people and created the worst humanitarian crisis in the world.”

***

Not incidentally: if you’re wondering about US involvement – not something that Donald Trump wonders about – then I recommend the President’s favourite newspaper, the New York Times, and its interactive report ‘Saudi Strikes, American Bombs, Yemeni Sufferinghere (which also draws on the Yemen Data Project), together with Declan Walsh‘s report, ‘Saudi Warplanes, mostly made in America, still bomb Yemeni civilianshere. These should be read in conjunction with geographer (yes!) Samuel Oakford‘s report on the inability of the US to track its fuel supply for the Saudi military mission in Yemen and his subsequent report for the Atlantic (which includes characteristically sharp and well-informed commentary from Larry Lewis).  

Earlier this year Congress sought to end US military involvement in the Saudi-led war in Yemen – something which certainly didn’t start with Trump, even though he has clearly ramped up support for the Saudi regime –  only to have the motion vetoed by the President:

‘This resolution is an unnecessary, dangerous attempt to weaken my constitutional authorities, endangering the lives of American citizens and brave service members, both today and in the future.’

You can tell from the order which of the two objections carried most weight.  And not surprisingly (either) the danger to the lives of Yemenis was conspicuous by its absence.

Paper trails

For an update and succinct review of attacks on hospitals and medical facilities in Syria – see also my ‘Your turn, doctor’ here – I recommend the latest fact-sheet from Physicians for Human Rights:

Attacks on health care, in gross violation of humanitarian norms and the Geneva Conventions, have been a distinctive feature of the conflict in Syria since its inception. PHR has documented and mapped 553 attacks on at least 348 separate facilities from March 2011 through December 2018. The reduction in the number of attacks over the past year is a clear reflection of the diminishing intensity of the conflict, which came as a direct result of the Syrian government’s takeover of most opposition-held areas. The systematic targeting of health facilities has been a crucial component of a wider strategy of war employed by the Syrian government and its allies – who are responsible for over 90 percent of attacks – to punish civilians residing in opposition- held territories, destroy their ability to survive, and draw them into government-held areas or drive them out of the country. This strategy of unbridled violence – which in addition to attacks on healthcare has included chemical strikes, sieges, and indiscriminate bombing of predominantly civilian areas – has devastated the civilian population, weakened opposition groups, and translated into direct military gains for the Syrian government.

Of the total number of documented attacks on health facilities, nearly 73 percent were carried out from the air. Nearly 98 percent of attacks on health facilities perpetrated from the air are attributable to the Syrian government and its ally Russian, which entered the conflict in 2015.

The share of attacks on health facilities from the air has grown from 38 percent of the total in 2012 to 90 percent in 2018. The Syrian government became steadily more reliant on airpower as the conflict evolved. Through their air forces, the Syrian government and Russia extended their strategy of collective punishment deep into opposition-held territory and far beyond hardened front lines. The Syrian government and its allies disabled or destroyed hundreds of facilities through aerial bombardment, leaving countless civilians without access to vital medical services.

The latest 20-page report from the Independent International Commission of Inquiry on the Syrian Arab Republic to the UN’s Human Rights Council is here.  I’ve drawn on many of these reports for my continuing work on siege warfare in Syria (see for example here, here and here), and this report – based on investigations carried out from 11 July 2018 to 10 January 2019 – makes for grim reading.  Here is the summary (but you really need to consult the full report):

Extensive military gains made by pro-government forces throughout the first half of 2018, coupled with an agreement between Turkey and the Russian Federation to establish a demilitarized zone in the north-west, led to a significant decrease in armed conflict in the Syrian Arab Republic in the period from mid July 2018 to mid January 2019. Hostilities elsewhere, however, remain ongoing. Attacks by pro-government forces in Idlib and western Aleppo Governorates, and those carried out by the Syrian Democratic Forces and the international coalition in Dayr al-Zawr Governorate, continue to cause scores of civilian casualties.

In the aftermath of bombardments, civilians countrywide suffered the effects of a general absence of the rule of law. Numerous civilians were detained arbitrarily or abducted by members of armed groups and criminal gangs and held hostage for ransom in their strongholds in Idlib and northern Aleppo. Similarly, with the conclusion of Operation Olive Branch by Turkey in March 2018, arbitrary arrests and detentions became pervasive throughout Afrin District (Aleppo).

In areas recently retaken by pro-government forces, including eastern Ghouta (Rif Dimashq) and Dar’a Governorate, cases of arbitrary detention and enforced disappearance were perpetrated with impunity. After years of living under siege, many civilians in areas recaptured by pro-government forces also faced numerous administrative and legal obstacles to access key services.

The foregoing violations and general absence of the rule of law paint a stark reality for civilians countrywide, including for 6.2 million internally displaced persons and 5.6 million refugees seeking to return. For these reasons, any plans for the return of those displaced both within and outside of the Syrian Arab Republic must incorporate a rights- based approach. In order to address effectively the complex issue of returns, the Commission makes a series of pragmatic recommendations for the sustainable return of all displaced Syrian women, men and children.

A report from Elizabeth Tsurkov in Ha’aretz confirms many of these findings.  Describing Assad’s Syria as a police state with rampant poverty’ and a ‘playground for superpowers’, she writes:

Eight years into the crisis, Syria’s economy is in tatters, half of its population displaced, hundreds of thousands of Syrians are dead, many of Syria’s cities and towns lie in ruins. Yet on top of this pile of ashes Assad sits comfortably, quite secure in his grip on power.
In areas reconquered by the regime — or as the regime euphemistically describes it, areas that “reconciled” and whose residents “returned to the bosom of the nation” — the Syrian police state is back, more aggressive than ever…

In 2011, Syrians took pride in “breaking the barrier of fear.” But fear now prevails, as the various branches of the regime’s secret police launch raids and arrest suspected disloyal elements. Many of those arrested are former activists, rebels, health and rescue workers, and civil society leaders. Syrians who wish to prove their loyalty to the regime, obtain power through it or simply settle personal scores inform on others to the regime. Suhail al-Ghazi, a Syrian analyst based in Istanbul, told Haaretz that Syrians are informing on each other “because they have been doing it for years or because they need money or favors from the regime.” In areas recently recaptured by the regime, “some locals were always pro-regime and stayed there to work as informants or just could not leave. Now they have the chance to take revenge on the majority of civilians who apparently held a more favorable view of the opposition,” Ghazi explained.

Most of Syria’s population now lives below the poverty line. Across all parts of Syria unemployment rates are high, as the normal economy has been disrupted by years of war and the mass flight of businesspeople and capital out of the country. Syria’s middle class has largely disappeared — many of them fled to neighboring countries or Europe, while others are now living in abject poverty, along with most Syrians.
A small group of war profiteers linked to the various armed groups have been able to enrich themselves by trading in oil, weapons, antiquities, stealing aid, and smuggling people and goods in and out of the country and into besieged areas, while most Syrians struggle to survive. Nearly two-thirds of Syrians are dependent on aid for their subsistence. Basic services like electricity, cooking gas, clean water and health services are lacking in many parts of the country.

Speaking on the condition of anonymity, a resident of Latakia — an area where many of the regime’s leadership and their relatives reside — told Haaretz: “You have corruption everywhere. Bribing was common before the war, but now it is endemic.”
He described the ostentatious displays of ill-gotten wealth: “High-ranking officials, they and their families, have more rights. They roam the city in fancy cars and do whatever they want. Half of the country is dying from hunger, while the sons of officials are arrogantly showing off their wealth. With money you can do everything. This is not new, but it has become more obvious because of the lawlessness prevailing in Syria.”

At the sub-regional scale Enab Baladi filed a revealing report last month on conditions in the Ghouta (which it describes as ‘military-ruled ruins’):

Today, Ghouta is living in a state of siege similar to that it witnessed between 2013 and 2018 at the service, relief and security levels, but the difference is that food is available.

With dozens of announcements about the restoration of electricity to areas east of the capital, as well as the restoration of water and communication services, the needs of civilians are still not covered by those services repeatedly announced by the regime.

Enab Baladi spoke to five people from the eastern Ghouta who returned to it, all of whom refused to be identified for fear of the regime prosecution. They described the service situation as “miserable”, especially with regard to the water and electricity services.

According to the five sources, the electricity is continuously cut for five hours, operates for only one hour, and then it is cut again, while water reaches homes one hour a day, and people rely on submersibles and artesian wells which they dug during siege in the previous years to get water.

Some areas of Ghouta also lacked many of the services that were the top priorities of organizations before the regime forces controlled the region, while food today enters without manipulated prices, unlike in the past….

The report describes Eastern Ghouta as riven by checkpoints; an emphasis on demolition rather than reconstruction; and continuing arrests and detentions.

In early August [2018], al-Assad forces launched a campaign of arrests, which has been considered as one of the largest security operations since the regime took over Ghouta, for it has targeted the regime dissidents and activists in the Syrian revolution. The campaign was carried out in the cities and towns of Saqba, Hamuriyah, Duma, Mesraba, and Ein Tarma.

The regime also subjected local activists, civil society workers, and former media professionals, as well as members of local councils and relief agencies, to investigations into the aids they received when the area was held by the opposition.

Security branches launched arrest campaigns targeting members of the former “local council” and other members of Rif-Dimashq Provincial Council in the city of Kafr Batna in central Ghouta, according to Enab Baladi referring to local sources.

Sources affiliated to the council told Enab Baladi that Syrian security forces raided the houses and workplaces of the detainees before taking them to an unknown destination. Other local council members, who preferred to stay in Ghouta rather than go to northern Syria, are detained for the same reasons.

In the face of all that, it’s not easy to find grounds for optimism, but there is a glimmer of hope in a report from Maryam Saleh at The Intercept:

Syrian activists and lawyers are testing the bounds of international law, making two new attempts to bring the government of Bashar al-Assad before the International Criminal Court.

Syrian refugees in Jordan, through London-based lawyers, sent communications to the office of the ICC prosecutor, asking her to exercise jurisdiction over Syria based on a precedent set last year in a case involving Myanmar’s persecution of Rohingya Muslims. The communications are the latest push by Syrian civilians to hold accountable the government whose brutality upended their lives. In recent years, Syrian lawyers and human rights activists have experimented with rarely utilized aspects of international law, succeeding in getting European and American courts to weigh in on atrocities committed in Syria.

“Because of how politicized the war in Syria became, lawyers and those fighting for accountability really had to be creative,” said Mai El-Sadany, the legal and judicial director at the Washington-based Tahrir Institute for Middle East Policy. “The most recent ICC Article 15 submissions” — a reference to communications with the ICC on information about alleged international crimes — “are evidence of this, that there is space for creativity in the accountability space.”

She continues:

Even when the evidence of potential crimes exists, investigations into crimes committed in states that have not ratified the Rome Statute are near impossible because of jurisdictional issues, and U.N. Security Council members are quick to use their veto power to block investigations into crimes potentially committed by their allies.

That’s what makes the various avenues Syrians are pursuing so significant. As of last March, more than two dozen cases had been filed in European courts regarding atrocities committed by the Syrian regime, rebel fighters, and the Islamic State and other fundamentalist militant groups. The family of Marie Colvin, an American journalist killed in 2012 while reporting from the city of Homs, sued the Syrian government in a U.S. district court; in January, the court found Syria responsible for killing Colvin.

Many of the cases in Europe were brought under a legal doctrine known as universal jurisdiction; application of the doctrine varies from country to country, but it essentially allows for courts to prosecute cases regardless of where the crime was committed or whether the accused party has any links to the prosecuting state.

The biggest success so far has been in Germany, where authorities last month arrested a former high-ranking Syrian intelligence officer and two others who are accused of crimes against humanity for torturing detainees in Syrian prisons. Other cases remain pending in France, Sweden, and Spain….

These attempts are possible in part due to an unprecedented level of documentation of crimes in Syria. The victims in some of the cases were identified from a trove of 28,000 photos of people killed in Syrian detention centers, smuggled out of the country by a military defector codenamed Caesar. The U.N. General Assembly, in December 2016, took the step of creating the International, Impartial, and Independent Mechanism to investigate crimes in Syria since 2011. The IIIM, as the body is known, does not have independent prosecutorial authority, but it exists to collect information that could later be provided to courts or tribunals with jurisdiction over the crimes. Last year, 28 Syrian nongovernmental organizations committed to collaborating with the IIIM on its work.

This is heartening in its way, but whenever I’ve been asked about attempts to enforce accountability in relation to the systematic attacks on hospitals, I’ve had to say that the hideous intimacy between torturer and tortured allows for an identification and assignment of culpability that is much more difficult in the case of the extended ‘kill-chain’ involved in bombing.

But that doesn’t mean it’s impossible: we know, from the courageous work of activists cited in Maryam’s report, that Assad’s security apparatus fetishized record-keeping, and that many of those records have been smuggled out of Syria so that they can now serve as testimony and evidence  (For other testimonies, see the work of Forensic Architecture on Saydnaya Prison that I described here: scroll down).  To sharpen the point, hare some of the slides from a presentation I once gave around precisely these questions:

If my work on bombing in other theatres of war is anything to go by, there will also be extensive trails (paper or digital) that animated the air strikes: though how they can ever be exposed is another question.

Islands of Sovereignty

When so many eyes are on the plight of refugees and asylum-seekers making the ever dangerous crossing of the Mediterranean, it’s important to attend to the wider geographies of marine migration and its policing.  So I really welcome news from Jeff Kahn of an intriguing and important new book, his Islands of Sovereignty: Haitian Migration and the Borders of Empire (forthcoming from Chicago later this year).

In Islands of Sovereignty, anthropologist and legal scholar Jeffrey S. Kahn offers a new interpretation of the transformation of US borders during the late twentieth century and its implications for our understanding of the nation-state as a legal and political form. Kahn takes us on a voyage into the immigration tribunals of South Florida, the Coast Guard vessels patrolling the northern Caribbean, and the camps of Guantánamo Bay—once the world’s largest US-operated migrant detention facility—to explore how litigation concerning the fate of Haitian asylum seekers gave birth to a novel paradigm of offshore oceanic migration policing. Combining ethnography—in Haiti, at Guantánamo, and alongside US migration patrols in the Caribbean—with in-depth archival research, Kahn expounds a nuanced theory of liberal empire’s dynamic tensions and its racialized geographies of securitization. An innovative historical anthropology of the modern legal imagination, Islands of Sovereignty forces us to reconsider the significance of the rise of the current US immigration border and its relation to broader shifts in the legal infrastructure of contemporary nation-states across the globe.

My own early work on Guantanamo [in ‘The Black Flag’: DOWNLOADS tab] nibbled at the remote edges of some of these issues, but Jeff makes them front and centre (as they should be), and the wider resonance of his argument in the face of  Trump’s wretched views on  immigration needs no gloss from me [though what Trump will do when someone tells him the US has maritime borders too is anyone’s guess].

Here is Jeff’s elaboration (taken from the book):

One of the overarching arguments of the book is that one must understand the valorization of law’s reign and the simultaneous desire for its evasion as two forces that have produced a potential dynamism within liberal sovereignty. That dynamism, having been activated through the historical conjuncture of Haitian migration, has reconfigured the spatiality of one of modernity’s core political forms–the nation-state itself. The goal is not to identify and typologize illiberal accretions on liberal political forms (R. Smith 1997) or to reveal the centrality of empire to American republicanism (Rana 2010) but to examine how the dialectics of the liberal rule of law continue to produce new geographies into the present. In this sense, the book is not just a dissection of liberal cosmology but a revelation of a liberal cosmogony of a kind by which state forms have been partially recreated as valued entities, both aesthetic and instrumental.

[Haitian] Interdiction [operations] emerged initially as a search for spaces of flexible bureaucratic intervention unburdened by the dense layers of proceduralism iconic of law’s rule. But what accounted for this urgent turn to the relative freedom of the seas? When Haitians began arriving in South Florida in the early 1970s, they encountered what was then an embryonic asylum-processing regime that granted the INS frontline screeners and district directors nearly unreviewable discretion to dispose of Haitian claims, which were, in almost every instance, denied as being merely “economic” in nature. The litigation and political organizing that emerged out of these early cases developed into a coalition of Haitian exiles, leftist activists, mainstream religious networks, and tenacious civil rights attorneys who would, through an unprecedented process of what I call “siege litigation” (chapter 2), effectively shut down the INS’s capacity to expel Haitians from South Florida for the better part of a decade. A space-producing dynamic would soon emerge around an energetic polarity of opposing litigation camps, each focused in different ways on the dilemma of what in government circles had already by that time become known as “the Haitian problem.” This book examines the ways new geographies were fashioned in these contests and what such space-making processes can reveal about existing cosmologies of law’s rule, including their shifting aesthetic and moral geographies.

You can get a taste of Jeff’s arguments about those legal geographies in his brilliant essay,  ‘Geographies of discretion and the jurisdictional imagination. PoLAR: Political and Legal Anthropology Review 40 (1)  (2017) 5-27.

The modernist ideal of liberal constitutionalism affords jurisdiction a special place as the organizing principle behind the distribution of official state power. Nonetheless, little attention has been paid to the intricate spatial infrastructures that give jurisdiction its form.  In this article, I argue that the complex architectures that undergird various jurisdictional registers combine to segment material and virtual landscapes into historically specific, multilayered geographies of discretion, dictating where, when, and to whom various institutions are permitted to speak the law. Looking to politicized litigation and advocacy over the rights of Haitian asylum seekers in the United States, I demonstrate how battles over jurisdictional cartographies can both instantiate and remake the spatiality of nation-states and the cosmologies of liberal sovereignty on which they rest.

 

Here’s the main Contents list for the book:

1 • The Political and the Economic
2 • Border Laboratories
3 • Contagion and the Sovereign Body
4 • Screening’s Architecture
5 • The Jurisdictional Imagination
6 • Interdiction Adrift

And, as I’ve noted before, since this comes from an American scholarly press the price of the paperback and e-book is eminently reasonable.  Commercial behemoths (oh, please let them soon become mammoths) take note!

Another Grey Zone

New from Bloomsbury – though, desperately sadly, at a ruinous price, a collection of essays edited by Mark Lattimer and Philippe Sands, The Grey Zone: The Grey Zone
Civilian Protection Between Human Rights and the Laws of War:

The high civilian death toll in modern, protracted conflicts such as those in Syria or Iraq indicate the limits of international law in offering protections to civilians at risk. A recent conference of states convened by the International Committee of the Red Cross referred to ‘an institutional vacuum in the area of international humanitarian law implementation’. Yet both international humanitarian law and the law of human rights establish a series of rights intended to protect civilians. But which law or laws apply in a particular situation, and what are the obstacles to their implementation? How can the law offer greater protections to civilians caught up in new methods of warfare, such as drone strikes, or targeted by new forms of military organisation, such as transnational armed groups? Can the implementation gap be filled by the growing use of human rights courts to remedy violations of the laws of armed conflict, or are new instruments or mechanisms of civilian legal protection needed?

This volume brings together contributions from leading academic authorities and legal practitioners on the situation of civilians in the grey zone between human rights and the laws of war. The chapters in Part 1 address key contested or boundary issues in defining the rights of civilians or non-combatants in today’s conflicts. Those in Part 2 examine remedies and current mechanisms for redress both at the international and national level, and those in Part 3 assess prospects for the development of new mechanisms for addressing violations. As military intervention to protect civilians remains contested, this volume looks at the potential for developing alternative approaches to the protection of civilians and their rights.

 

I’ve written about attempts to ‘eliminate the grey zone’ before, but this is a different one, as the Contents make clear:

 

Part I: Rights
1. Who Is a Civilian? Membership of Opposition Groups and Direct Participation in Hostilities
Emily Crawford
2. The Duty in International Law to Investigate Civilian Deaths in Armed Conflict
Mark Lattimer
3. Protection by Process: Implementing the Principle of Proportionality in Contemporary Armed Conflicts
Amichai Cohen
4. Regulating Armed Drones and Other Emerging Weapons Technologies
Stuart Casey-Maslen
5. The Globalisation of Non-International Armed Conflicts
Pavle Kilibarda and Gloria Gaggioli
6. Administrative Detention in Non-International Armed Conflicts
Françoise J Hampson
7. The Crime of Rape in Military and Civilian Jurisdictions
Lois Moore and Christine Chinkin

Part II: Remedies
8. The Right to Reparation for Victims of Armed Conflict
Carla Ferstman
9. Arguing International Humanitarian Law Standards in National Courts-A Spectrum of Expectations
Sharon Weill
10. The Death of Lex Specialis? Regional Human Rights Mechanisms and the Protection of Civilians in Armed Conflict
Bill Bowring
11. Extraterritorial Obligations under Human Rights Law
Cedric Ryngaert
12. What Duties Do Peacekeepers Owe Civilians? Lessons from the NuhanovicCase
Liesbeth Zegveld
13. Civilian Protection and the Arms Trade Treaty
Blinne Ní Ghrálaigh

Part III: Developments
14. A Path Towards Greater Respect for International Humanitarian Law
Valentin Zellweger and François Voeffray
15. The Responsibility to Protect and Non-State Armed Groups
Jennifer M Welsh
16. Protecting Civilians by Criminalising the Most Serious Forms of the Illegal Use of Force: Activating the International Criminal Court’s Jurisdiction over the Crime of Aggression
Carrie McDougall
17. Elements and Innovations in a New Global Treaty on Crimes Against Humanity
Leila Nadya Sadat

Mark introduces the project (and en passant makes clear its relevance to my continuing work on Syria) over at Justice in Conflict here:

As armed conflicts continue to metastasize in many world regions, is the existing international law protecting civilians fit for purpose, or are there gaps in protection? The answer of most lawyers of armed conflict to this question has long been that the gap lies not in the substantive law but in its implementation.

While the need for implementation is plain, it is also clear that the contemporary face of conflict presents aspects which the framers of the Geneva Conventions and their 1977 Protocols – as well as the major human rights treaties – could hardly have envisaged. The growth of transnational armed groups such as Al-Qaeda and ISIS means that a ‘non-international armed conflict’ can now be fought in many states simultaneously or even, according to some proponents, globally. New technologies in warfare, from armed drones to autonomous weapons systems, radically alter the circumstances under which information is made available to commanders and with it the scope and accountability of decision-making….

Just looking at the fundamental conflict activities of killing and detaining, the grey areas appear to be wide. With conflict conducted in areas of high population density, there are a number of practical problems in distinguishing civilians from combatants or fighters, but also legal ones. Civilians lose their immunity from attack when directly participating in hostilities, but how is direct participation defined and how long does it last? In Iraq and Syria individuals have been targeted on account of their membership of ISIS or Jabhat al Nusra. But what of members of armed groups who do not engage in combat? What of the driver, the cook, or the recruiter? The treatment of ISIS members and their families is a sensitive subject in Iraq, but it appears to encompass the targeting and/or punishment of those who had no combat function.

The growth in armed conflict jurisprudence from human rights and monitoring bodies has in many cases recast the headline question: rather than identifying gaps in the law, the challenge is to determine which set of laws or legal regimes apply. Should it be human rights law or the international humanitarian law (IHL) applicable in armed conflict? Or indeed both?

Deathscapes: mapping race and violence in settler states

A preview of a remarkable website from the Deathscapes Project directed by Suvendrini Pererand Joseph Pugliese:

With the ultimate aim of ending deaths in custody, the Deathscapes project maps the sites and distributions of custodial deaths in locations such as police cells, prisons and immigration detention centres, working across the settler states of Australia, the US and Canada, as well as the UK/EU as historical sites of origin for these settler colonial states.

It presents new understandings of the practices and technologies, both global and domestic, that enable state violence against racialized groups in settler states. Within the violent frame of the settler colonial state, centred on Indigenous deaths as a form of ongoing clearing of the land, the deaths of other racialized bodies within the nation and at its borders–including Black, migrant and refugee deaths–reaffirm the assertion of settler sovereignty.

To focus on Indigenous deaths and other racialized deaths is not to collapse the differences between racialized groups, or to ignore the presence of other racialized populations in these states, but to address some of the shared strategies, policies, practices and rationales of state violence deployed in the management of these separate categories.

We situate deaths in custody within the shared contexts and interrelated practices of the settler state as they are embedded within contemporary global structures. By working across the major Anglophone settler states, as well as the United Kingdom and European Union, the project seeks to move away from the nation as the primary analytical unit to consider forms of governance and social relations that are transnationally linked.

The project adopts a transnational and cross-disciplinary approach to racialized state violence, mapping racialized deaths in custody in all their visual, analytical and geographical dimensions.

Deathscapes seeks to ‘humanise what has been dehumanised’ by incorporating the aesthetic as part of the infrastructure of the site. The artworks on the site offer testimony of what otherwise would remain unsaid and unrepresented; they offer graphic examples of acts of protest and resistance; they instantiate agency in contexts in which it is often so brutally denied; they amplify, through their visual languages, the key analytical and political concerns articulated in the various case studies of racialised deaths. More on the aesthetics of the site can be accessed here. Notes on teaching with the Deathscapes site can be accessed here.

And you can follow the project on twitter here.

Gender, war and technology

Christiane Wilke writes with news of a fascinating special issue of the Australian Feminist Law Journal (441, 1) on Gender, War, and Technology: Peace and Armed Conflict in the Twenty-First Century.

Gender, War, and Technology: Peace and Armed Conflict in the Twenty-First Century:  Emily Jones, Sara Kendall & Yoriko Otomo

Targeting, Gender, and International Posthumanitarian Law and Practice: Framing The Question of the Human in International Humanitarian Law: Matilda Arvidsson

How International Law Learned to Love the Bomb: Civilians and the Regulation of Aerial Warfare in the 1920s: Christiane Wilke

Technology, Dead Male Bodies, and Feminist Recognition: Gendering ICT Harm Theo:  Kristin Bergtora Sandvik

War’s Perpetuity: Disabled Bodies of War and the Exoskeleton of Equality: Gina Heathcote

A Posthuman-Xenofeminist Analysis of the Discourse on Autonomous Weapons Systems and Other Killing Machines: Emily Jones

The Architecture of Slow, Structural, and Spectacular Violence and the Poetic Testimony of War: Helene Kazan

The editors explain in their Introduction:

As the following articles illustrate, triangulating gender, war, and technology as a field of inquiry produces a wide domain of analysis, with topics ranging from human enhancement technologies to autonomous weapons systems, surveillance and aerial bombardment, artificial intelligence, and big data. The three terms themselves invite interpretation and debate.

The first term, ‘gender’, has been used in the context of international humanitarian law to signify vulnerability; women are treated as a group that may require further protection, where gender operates as a qualified identity that supplements the category of civilian (or indeed, comes to define the category of civilian). Yet some of the articles considered here adopt a more reflexive approach informed by feminist scholarship, considering issues of agency, difference, and intersectionality, and contesting gendered constructions that presuppose femininity, ethnicity, and passivity. The gendered subjects of law and war are at the same time subjects embedded within political economies of race, class, ability, age, and other factors. While gender serves as the primary focus of many articles within this special issue, gender theory’s commitment to intersectionality can be seen throughout, with articles considering issues of race, colonialism, ability, masculi- nity, and capitalism (and thus, implicitly, class). Beyond this special issue, the field would benefit from analysis of the broader range of intersectional concerns that emerge from recent technological developments in warfare.

The second term, ‘war’, is understood through drawing on existing feminist and gender critiques of war and armed conflict. Our point of departure is Cockburn’s well-known ‘continuum of violence’, whereby war and peace are noted to be part of a shared continuum as opposed to distinct (legal) categories. Such an outlook dis- rupts legal categorisations of conflicts by acknowledging that when a conflict ends as a matter of law, it has not necessarily ended for people living through it.  Not only do the place and time of ‘armed’ conflict then become questions, but presumptions about who produces, participates in, and is affected by conflict are also revisited and critiqued.

The final term, ‘technology’, has been defined within the context of conflict in the twenty-first century, following the post-war ideological movement described above. We are aware of the vast amount of literature which seeks to define technology broadly, with Heidegger defining technology to include things such as art and law, roughly defining technology as a tool and theorising how it is technology which helps humans become human. This special issue focuses on technology specifically within the context of twenty-first-century armed conflict, such as military technologies and/or algorithmic decision-making and data collection. In light of the multiple ways in which technology is changing conflict, we argue that the focus on these technologies reflects the ways in which technology is impacting on and changing the global order and conflict. This special issue seeks to draw attention to the urgent need for gendered perspectives on the interrelationships between war and technology.

The Airspace Tribunal

News of a project dear to my research (and my heart):

Towards a new human right to protect the freedom to exist without a physical or psychological threat from above

by The Wapping Project

Doughty Street Chambers, 54 Doughty Street, London WC1N 2LS

21st September 2018, 10.00 AM – 4.30 PM

Over the last century, humans have radically transformed airspace: chemically, territorially, militarily and psychologically. Technological developments mean that this transformation is accelerating and growing in complexity. There is widening disparity in the global landscape of power, with civilians increasingly subject to expanding commercial and military exploitation of technology in airspace and outer space and to the consequences of environmental change. The associated threats are not adequately addressed by the contemporary legal framework. There is an urgent need for new thinking.[1]

The Airspace Tribunal invites representations from experts across a broad range of disciplines and lived experience, such as human rights, contemporary warfare, new media ecologies, environmental change, neuropsychology, conflict and forced migration, to discuss the challenges and consider the case for and against the recognition of a new human right to protect the freedom to exist without physical or psychological threat from above.

Speakers include:

  • Nick Grief –  member of the legal team that represented the Marshall Islands and took the UK, India and Pakistan to the International Court of Justice for violating their nuclear disarmament obligations;
  • Conor Gearty – professor of human rights law who has published extensively on terrorism, civil liberties and human rights;
  • Andrew Hoskins – media sociologist known for his work on media, memory and conflict;
  • Martin A. Conway – cognitive neuropsychologist and expert on human memory and the law;
  • Shona Illingworth –  artist whose video and sound installations investigate memory, cultural erasure and structures of power in situations of social tension and conflict;
  • Maya Mamish – psychologist researching integration and well-being of Syrian youth affected by armed conflict and displacement;
  • Melanie Klinkner – transitional justice scholar majoring in international criminal justice with a background in philosophy, anthropology and biology;
  • William Merrin, a specialist in digital media and author of ‘Digital War’.

Conceived and developed by Nick Grief and Shona Illingworth, the Airspace Tribunal’s judges will include members of the public, challenging the traditional state-centric view of how international law is created. The hearings will be recorded and transcribed to document the drafting history of this proposed new human right.

The Airspace Tribunal is part of Topologies of Air, a major new artwork by Shona Illingworth, extract above, commissioned by The Wapping Project, that will be exhibited at The Power Plant, Toronto, in 2020 (more here: scroll down).

The London hearing of the Airspace Tribunal is supported by the University of Kent, The Wapping Project and Doughty Street Chambers.

[1] See Nick Grief, Shona Illingworth, Andrew Hoskins and Martin A. Conway, Opinion, ‘The Airspace Tribunal: Towards a New Human Right to Protect the Freedom to Exist Without Physical or Psychological Threat from Above’, European Human Rights Law Review, Issue 3 (2018) , pp 201.  You can download the brief via the War & Media Network (to whom I owe all this info) here.

Space is limited and booking is essential here.

Scenes of crimes

I’m still on the road, but my series of essays on siege warfare in Syria has not ground to a complete halt: far form it.  Expect more soon, but in the meantime, two reports from the New York Times of considerable importance.

First, the United Nations Independent Commission of Inquiry on Syria confirmed that the siege of eastern Ghouta was marked by war crimes and crimes against humanity:

Dramatically escalating their military campaign to recapture the besieged enclave between February and April, pro-Government forces carried out aerial and ground bombardments which claimed the lives of hundreds of Syrian men, women, and children. By April, numerous homes, markets, and hospitals had been all but razed to the ground, amounting to the war crimes of launching indiscriminate attacks, and deliberately attacking protected objects.

In an effort to avoid the bombardments, terrified civilians relocated to makeshift basement shelters in February, where they subsisted for months underground in dire circumstances.

“It is completely abhorrent that besieged civilians were indiscriminately attacked, and systematically denied food and medicine,” said Commission Chair Paulo Pinheiro. “What is clear from the terminal phase of this siege is that no warring party acted to protect the civilian population”, he continued.

Through the widespread and systematic bombardments of civilian inhabited areas and objects in eastern Ghouta, and the continued denial of food and medicine to besieged civilians during the period under review, pro-Government forces perpetrated the crime against humanity of inhumane acts causing serious mental and physical suffering, the report finds.

Between February and April, besieged armed groups and terrorist organisations also relentlessly fired unguided mortars into neighbouring Damascus city and nearby areas, killing and maiming hundreds of Syrian civilians.

“Even if pro-Government forces are bombing and starving the civilian population of eastern Ghouta into submission, there can be no justification for the indiscriminate shelling of civilian inhabited areas in Damascus”, said Commissioner Hanny Megally. “Such actions by armed groups and members of terrorist organisations also amount to war crimes.”

The report notes that, by the time Government forces declared eastern Ghouta successfully recaptured on 14 April, some 140,000 individuals were displaced from their homes, tens of thousands of whom are being unlawfully interned by Government forces in managed sites throughout Rif Damascus.

“The blanket internment of all civilians who fled eastern Ghouta through humanitarian corridors, including women and children, is reprehensible,” said Commissioner Karen Koning AbuZayd. “In many instances, the on-going internment of these individuals amounts to arbitrary deprivation of liberty, and the unlawful confinement of tens of thousands of individuals,” she continued.

Pursuant to local truces and “evacuation agreements”, up to 50,000 civilians from eastern Ghouta were displaced to Idlib and Aleppo governorates, none of whom were provided aid by the Syrian Government.

The report also states that the cumulative physical and psychological harm wrought by the five-year siege continues to impact negatively hundreds of thousands of Syrian men, women, and children countrywide.

I’ve taken that summary from a press release on 20 June; the full report will be presented today, and you can download it here. (scroll down).

I’ll have more to say about this report when my series resumes, but what is important for now is that – according to a report by Maggie Haberman and Rick Gladstone for the New York Times – details of two chemical attacks were drastically reduced:

At least twice this year, the Syrian military fired Iranian-made artillery shells filled with a chlorine-like substance that oozed poison slowly, giving victims just a few minutes to escape.

In another attack, Syrian forces dropped a chemical bomb on the top-floor balcony of an apartment building, killing 49 people, including 11 children. Their skin turned blue.

These details and others blaming Syria for atrocities in eastern Ghouta, a suburb of Damascus, were uncovered by a United Nations commission investigating and documenting possible war crimes in the seven-year-old conflict. But when the commission issued a report on Wednesday, the details were omitted.

Seven pages that had been in an earlier draft, provided to The New York Times, were summarized in two paragraphs in the final document…

The materials in the leaked draft paint a far more frightening picture of chemical weapons use in eastern Ghouta than had been previously reported. And they assert without qualification that Syrian forces and their allies were responsible, rebutting repeated denials by Mr. Assad’s government and his backers in Russia and Iran.

One of those attacks was the assault on Douma on 7 April that I discussed in detail in Gas Masques.  The NYT report explains:

On April 7, the draft said, an improvised explosive delivered from the air hit a multistory residential building roughly 200 yards from the Rif Damascus Hospital, the last functioning hospital in Douma.

The draft described the explosive as a “single industrial gas cylinder” with fins that struck the top-floor balcony and appeared to have “rapidly released large amounts of a substance into the interior space of the residential apartment building.”

“Positions and physical symptoms displayed by victims of the attack support witness claims that the agent acted rapidly,” the draft stated, “and likely indicate that a high concentration of the chemical sank downwards.”

Based on witness statements and “material evidence received and analyzed by the Commission,” the draft stated, the dead showed “an array of symptoms consistent with exposure to a choking agent, including signs of foaming at the mouth and nose, blue skin indicating impaired blood circulation, meiosis (constriction of the pupils), as well as some cases of dilated (wide open) pupils.”

“Statements and material evidence received and analysed by the Commission in relation to the deceased within the apartment building revealed an array of symptoms consistent with exposure to a choking agent, including signs of foaming at the mouth and nose, blue skin indicating impaired blood circulation, meiosis (constriction of the pupils), as well as some cases of dilated (wide open) pupils. Numerous victims unable to flee the building collapsed shortly after exposure.”

You can download those missing pages here.

All of this is a vital preface to a second report from the New York Times: a reconstruction of the attack on that apartment building presented in Augmented Reality here.

The still above will probably look familiar to regular readers, because the reconstruction relies in large measure on the work of Eyal Weizman‘s Forensic Architecture agency and contributions from Eliot Higgins‘s Bellingcat (the image at the head of this post is taken from one of its tweets. ) The NYT again:

We were unable to visit Douma. But to get to the truth of what happened, we forensically analyzed the visual evidence unwittingly provided by the Russian reports. Combining those pictures with other videos filmed by Syrian activists, we reconstructed a 3-D model of the building, the balcony and the bomb, in partnership with Goldsmiths, University of London research agency, Forensic Architecture.

The reconstruction brought a virtual crime scene to us. We could inspect how the bomb related to the trove of visual evidence around it, the debris strewn across the balcony, the bomb’s design, the architecture of the rooftop, the damage inscribed on the bomb’s casing, the hole punctured in the roof, and how the bomb penetrated into the room beneath.

Key pieces of evidence indicate that this bomb was not planted, as officials claimed, but dropped from a Syrian military helicopter. The evidence supports chlorine was involved. And it affirmed when it happened — on the evening of April 7, a time frame that is consistent with witness reports and interviews of that day.

The analysis confirms the narrative I set out in Gas Masques, but adduces several other evidentiary or inferential details.  In particular, it reveals that the apartment building (lower left in the diagram below) was located on a street that was regularly used by ambulances ferrying casualties to reach an underground tunnel that gave access to the only functioning hospital in Douma (upper right) – and may have been attacked for that very reason.

The reconstruction that follows included: geo-locating the building and plotting the locations of 34 victims on two floors and the stairwell (below) –

– analysing imagery of the bomb and its residues and fragments from cellphones and from video broadcast by Russian and Syrian agencies to show that the bomb had been rigged to fall from a helicopter (a standard tactic), a finding that reinforces the observed flightpaths from Dumayr Air Base that evening –

– and, finally, devastating film of the victims whose bodies, so experts confirmed, exhibit signature symptoms of exposure to chlorine gas at highly concentrated levels.  They do not rule out the use of other chemical agents, but they also conclude that the casualties did not die from a conventional weapons attack (see my discussion of Robert Fisk‘s reporting in Gas Masques) and neither were they somehow staged (I also discuss this in detail in that same essay).

Many of the victims had been sheltering the in the basement from the bombardment; smelling chlorine, the report concludes, they ran up the stairs towards the top floors of the building – the usual response, since chlorine is heavier than air – not knowing that the gas had been released from a bomb on the roof….

It’s an appropriately corrosive report, and you can watch the full 12-minute video here.  Please do.