Death sentences

Posted on April 12, 2016 by Derek Gregory

Living under drones is both a chilling report and a nightmare reality. In November 2014, in a New Yorker essay called ‘The unblinking stare‘, Steve Coll reported a conversation with Malik Jalal from North Waziristan:

‘Drones may kill relatively few, but they terrify many more… They turned the people into psychiatric patients. The F-16s might be less accurate, but they come and go.’

Now Reprieve has put a compelling face to the name – to a man who believes, evidently with good reason, that he has been included in the CIA’s disposition matrix that lists those authorised for targeted killing.

‘Malik’ is an honorific reserved for community leaders, and Jalal is one of the leaders of the North Waziristan Peace Committee (NWPC). Its main role is to try to keep the peace between the Taliban and local authorities, and it was in that capacity that he attended a Jirga in March 2011. He says this was on 27 March, but I think it must have been the strike that killed 40 civilians at Datta Khel on 17 March (see the summary from the Bureau of Investigative Journalism here and my post here).

Here are the relevant passages from my ‘Dirty dancing’ essay, following from a discussion of Pashtunwali and customary law in the Federally Administered Tribal Areas (I’ve omitted the footnotes and references):

***

‘In short, if many of the Pashtun people in the borderlands are deeply suspicious of and even resentful towards Islamabad (often with good reason) they are ‘neither lawless nor defenceless.’

‘Yet the trope of ‘lawlessness’ persists, and it does important work. ‘By alleging a scarcity of legal regulation within the tribal regions,’ Sabrina Gilani argues, ‘the Pakistani state has been able to mask its use of more stringent sets of controls over and surveillance within the area.’ The trope does equally important work for the United States, for whom it is not the absence of sovereign power from the borderlands that provides the moral warrant for unleashing what Manan Ahmad calls its ‘righteous violence’. While Washington has repeatedly urged Islamabad to do much more, and to be less selective in dealing with the different factions of the Taliban, it knows very well that Pakistan has spasmodically exercised spectacular military violence there. But if the FATA are seen as ‘lawless’ in a strictly modern sense – ‘administered’ but not admitted, unincorporated into the body politic – then US drone strikes become a prosthetic, pre-emptive process not only of law enforcement but also of law imposition. They bring from the outside an ‘order’ that is supposedly lacking on the inside, and are reconstituted as instruments of an aggressively modern reason that cloaks violence in the velvet glove of the law.

And yet the CIA’s own willingness to submit to the principles and procedures of modern law is selective and conditional; we know this from the revelations about torture and global rendition, but in the borderlands the agency’s disregard for the very system it purports to defend also exposes any group of men sitting in a circle with guns to death: even if they are gathered as a Jirga. On 27 January 2011 CIA contractor Raymond Davis was arrested for shooting two young men in Lahore. The targeted killing program was suspended while the United States negotiated his release from custody, agreeing to pay compensation to the victims’ families under Sharia law so that he could be released from the jurisdiction of the court. On 16 March, the day after Davis’s release, a Jirga was convened in Dhatta Khel in North Waziristan. A tribal elder had bought the rights to log an area of oak trees only to discover that the land also contained chromite reserves; the landowner was from a different tribe and held that their agreement covered the rights to the timber but not the minerals, and the Jirga was called to resolve what had become an inter-tribal dispute between the Kharhtangi and the Datakhel. Maliks, government officials, local police and others involved in the affair gathered at the Nomada bus depot – a tract of open ground in the middle of the small town – where they debated in two large circles. Agreement was not reached and the Jirga reconvened the next morning. Although four men from a local Taliban group were present, the meeting had been authorised by the local military commander ten days earlier and was attended by a counsellor appointed by the government to act as liaison between the state, the military and the maliks. It was also targeted by at least one and perhaps two Predators. At 11 a.m. multiple Hellfire missiles roared into the circles. More than forty people were killed, their bodies ripped apart by the blast and by shattered rocks, and another 14 were seriously injured.

There is no doubt that four Taliban were present: they were routinely involved in disputes between tribes with competing claims and levied taxes on chromite exports and the mine operators. But the civilian toll from the strike was wholly disproportionate to any conceivable military advantage, to say nothing of the diplomatic storm it set off, and several American sources told reporters that the attack was in retaliation for the arrest of Davis: ‘The CIA was angry.’ If true, this was no example of the dispassionate exercise of reason but instead a matter of disrespecting the resolution offered by Sharia law and disordering a customary judicial tribunal. Even more revealing, after the strike an anonymous American official who was supposedly ‘familiar with the details of the attack’ told the media that the meeting was a legitimate military target and insisted that there were no civilian casualties. Serially: ‘This action was directed against a number of brutal terrorists, not a county fair’; ‘These people weren’t gathering for a bake sale’; ‘These guys were … not the local men’s glee club’; ‘This was a group of terrorists, not a charity car wash in the Pakistani hinterlands.’ The official – I assume it was the same one, given the difference-in-repetition of the statements – provided increasingly bizarre and offensively absurd descriptions of what the assembly in Datta Khel was not: he was clearly incapable of recognising what it was. Admitting the assembly had been a properly constituted Jirga would have given the lie to the ‘lawlessness’ of the region and stripped the strike of any conceivable legitimacy. The area was no stranger to drone attacks, which had been concentrated in a target box that extended along the Tochi valley from Datta Khel through Miran Shah to Mir Ali, but those responsible for this attack were clearly strangers to the area.

***

‘Like others that day,’ Jalal concedes, ‘I said some things I regret. I was angry, and I said we would get our revenge. But, in truth, how would we ever do such a thing? Our true frustration was that we – the elders of our villages – are now powerless to protect our people.’

This was the fourth in a series of strikes that Jalal believes targeted him:

‘I have been warned that Americans and their allies had me and others from the Peace Committee on their Kill List. I cannot name my sources [in the security services], as they would find themselves targeted for trying to save my life. But it leaves me in no doubt that I am one of the hunted.’

He says he is an opponent of the drone wars – but if that were sufficient grounds to be included on the kill list it would stretch into the far distance.

He also says that the Americans ‘think the Peace Committee is a front’ working to create ‘a safe space for the Pakistan Taliban.’

‘To this I say: you are wrong. You have never been to Waziristan, so how would you know?’

And he describes the dreadful impact of being hunted on him and his family:

‘I soon began to park any vehicle far from my destination, to avoid making it a target. My friends began to decline my invitations, afraid that dinner might be interrupted by a missile.

‘I took to the habit of sleeping under the trees, well above my home, to avoid acting as a magnet of death for my whole family. But one night my youngest son, Hilal (then aged six), followed me out to the mountainside. He said that he, too, feared the droning engines at night. I tried to comfort him. I said that drones wouldn’t target children, but Hilal refused to believe me. He said that missiles had often killed children. It was then that I knew that I could not let them go on living like this.’

And so he has travelled to Britain to plead his case:

‘I came to Britain because I feel like Britain is like a younger brother to America. I am telling Britain that America doesn’t listen to us, so you tell them not to kill Waziristanis.’

You can hear an interview with him on BBC’s Today programme here.

In you think Britain is distanced from all this, read Reprieve‘s latest report on ‘Britain’s Kill List‘ here (which focuses on the Joint Prioritised Effects List in Afghanistan and its spillover into Pakistan) and Vice‘s investigation into the UK’s role in finding and fixing targets in Yemen here.

Thatcher’s Gift: law and ordering

Posted on March 19, 2014 by Derek Gregory

Following on from my last post… The failure of the anonymous US official to recognise what I called the operative presence of customary law is symptomatic of a structural condition: Pakistan’s borderlands, the Federally Administered Tribal Areas, must be construed as ‘lawless’ in order for law (which is to say ‘order’) to be imposed from the outside, through military and paramilitary violence shrouded, as it so often is, in the cloak of law itself.

Talking with Michael Smith yesterday – who is busy co-editing a special issue of Society & Space on legal geographies with Craig Jones – I suggested that this effectively repeated the canonical double gesture of Orientalism, in which the space of the Other is summoned as a space of the bizarre, the exotic and at the limit the monstrous (‘a living tableau of queerness’, Edward Said called it), that must be imperatively normalised – straightened out, if you prefer – through the imposition of the order it has been deemed to lack. In this case, the ordering is imposed through a deadly dance choreographed in Washington and Islamabad.

Michael then provided me with this remarkable quotation from Peter Fitzpatrick‘s ‘Racism and the innocence of law’ from the Journal of Law and Society 14 (1) (1987) 119-132 (p. 129):

“It is hardly surprising, then, that the resort to law as a symbol of race and nation should be so facile, so common and so effective. Thus, to return to the stratagem of the telling instance and to Thatcher’s contribution, she precisely echoes the imperialist claim to law as a gift we gave them, gave those “people with a different culture”, people who did not have law, who did not give it to the world and who in remaining essentially alien have failed to assimilate the gift adequately.”

The reference is to a speech given by Margaret Thatcher in January 1978, in which she praised Britain’s contribution to law (‘throughout the world’) and sympathised with those who feared that immigration would see this ‘swamped’ – submerged, drowned – ‘by people with a different culture’.

So, in the telling instance of Datta Khel [the image above is from an official Pakistani transcript published by the Bureau of Investigative Journalism; there is also a detailed report here – scroll down to 17 March) colonial and imperial power redux: Midnight’s Children being ‘ordered’ by Thatcher’s….. It would have been better if the Jirga targeted by the drone had been a ‘charity car-wash’ – but that distant prospect was evidently (and I think necessarily) construed as even less likely than its being a properly constituted legal assembly.

In case this is misunderstood, to insist on the operative presence of customary law is emphatically not to deny that people in these areas are subject to extraordinary violence from the air and from the ground, by the CIA, the Pakistan military, and the Taliban and other groups – but it is to acknowledge how what Michael called ‘liberal legality’s denigration of its others (tradition, custom, customary law)’ is a vital, constitutive moment in the imposition of those violent exactions.

The scene of the crime: customary law and forensic architecture

Posted on March 15, 2014 by Derek Gregory

I returned from a wonderful visit to Glasgow last week – thanks so much to Jo Sharp, who ensured I had a criminally good time – and I’ve spent this week trying to catch up. It rained most of the time I was there, and in fact my first impression of the University was of a quadrangle turned into a quagmire: a case of mire in the flood, you might say. But nothing could dampen my spirits, and in the gaps between marvellous restaurants, coffee shops that would make anyone in Vancouver (or Seattle) green with envy, the best lunch ever, and truly excellent conversation, I gave two talks: one on my skeletal ideas about my new project on Medical-military machines and casualties of war, 1914-2014, and the other a more formal affair on ‘Dirty dancing: drone strikes, spaces of exception and the everywhere war.’ The purpose of the first talk was to explore, largely for graduate students, how I work; it generated a lively discussion, so I thought I would try to do the same in this post but in relation to the second presentation. And in doing so, I’ll also have more to say about the scene of a real crime.

I’d prepared my formal presentation before I left Vancouver, and as I’ve explained before I now never read from a written text: I design the slides carefully (see my ‘Rules’ here) and talk to them, so that I retain as much flexibility as possible. It’s a sort of semi-scripted improv, I suppose, and it also means that the argument can develop from one presentation to the next.

On the train up from London I started to think some more about the air strikes on the Federally Administered Tribal Areas (see also here, here and here). Part of my purpose was to trace a narrative of air attack that, for those now ‘living under drones’, stretched back (at least in memory) to British air control and counterinsurgency on the North West Frontier in the 1920s and the 1930s.

I’d made this point before, and sharpened it during an earlier version of the presentation in Beirut, but I’d since realised that the narrative was resumed by the Soviet and Afghan Air Forces striking mujaheddin bases in Pakistan during the Soviet occupation of Afghanistan. I hadn’t paid much attention to this in The colonial present, where my focus was on the aid provided by the CIA to mujaheddin striking across the border in the opposite direction, but these air raids were described by the Washington Post on 13 March 1988 as part of the USSR’s “war of terror” (really). They are an important moment in the genealogy of air strikes and counterinsurgency in the FATA, and I’d managed to unearth some estimates of the number of cross-border violations of Pakistani air space and the number skilled and injured in the strikes:

Then, in one of the ironic twists of our post 9/11 world, the (il)logic of air war was revived and ramped up by the CIA-directed drone strikes that have convulsed the borderlands since 2004.

I wanted to show, as I’ve argued in previous posts, that this narrative was more than a cross-border affair and that the Pakistan Air Force has been also actively involved in a series of domestic air campaigns: since 2008 it has carried out thousands of air strikes against what it describes as militants, insurgents and terrorists in the FATA. In fact, the offensive was resumed earlier this year, when F-16 aircraft and helicopter gunships attacked targets in North Waziristan, driving thousands of people from their homes.

In some measure, all of these air campaigns raise the spectre of colonial power, but so too does the legal status of the FATA and its exceptional relation to the rest of Pakistan. This is usually traced back to Lord Curzon’s Frontier Crimes Regulations (1901), which were retained by Pakistan after independence in 1947. They were minimally revised in 2011, but the FATA are still under the direct executive control of the President through his appointed Political Agents who have absolute authority to decide civil and criminal matters. The exceptional status of the FATA was confirmed by the Actions (in Aid of Civil Power) Regulations in 2011 which exclude the high court from jurisdiction on fundamental rights issues in any area where the Pakistan armed forces have been deployed ‘in aid of the civil power’.

All of this indicates that the FATA constitute a ‘space of exception’ in something like Giorgio Agamben‘s sense of the term: a space in which particular people are knowingly exposed to death through the juridical or quasi-juridical removal of legal protections from them. This was, in part, my argument, but I was also concerned to show that this was not a matter of a legal void: rather, military and paramilitary violence was orchestrated, as it almost always is, through the law.

But there is quite another sense in which the FATA is not a legal void, despite all the rhetoric about them being ‘lawless’ lands. So I started to think through the intersections between these formal legal geographies (and the state violence they sanction) and the system of customary law known as Pashtunwali (loosely, “the way of the Pashtuns”). The system is far from static, but it still governs many areas of life among Pashtuns on both sides of the Afghanistan-Pakistan border whose cultures and communities were bisected when the Durand Line was drawn in 1893. I’d been reading as much as I could by anthropologists and others to help me understand its contemporary relevance: for recent surveys, see Tom Ginsburg‘s ‘An economic interpretation of the Pashtunwali’ from the University of Chicago Legal Forum (2011) here, Lutz Rzehak‘s ‘Doing Pashto’ here, and Thomas Ruttig‘s qualifications in relation to the Taliban here. For a sense of how the US military understands Pashtunwali, as part of its ‘cultural turn’, see Robert Ross‘s thesis here.

Pashtunwali is more than a legal system, of course, but I was particularly interested in its legal force and how this is put into practice. Many commentators have shown that Pashtunwali is precisely the sort of ‘mobile’ legal system that you would expect to find among (originally) nomadic peoples, for whom the fixed statutes of a centralised state had neither appeal nor purchase. It includes obligations of hospitality and protection, asylum and refuge, and revenge and restitution, and provides for a system of resolution through a council (or Jirga). Within its patriarchal and masculinist framework, the system is resolutely non-hierarchical: the men who compose the Jirga sit in a circle and each, as a symbol of authority and equality, carries a gun.

Sitting in a circle, the Jirga has no speaker, no president, no secretary or convener. There are no hierarchical positions and required status of the participants. All are equal and everyone has the right to speak and argue, although, regard for the elders is always there without any authoritarianism or privileged rights attached to it. The Jirga system ensures maximum participation of the people in administering justice and makes sure that justice is manifestly done.

On my way over to the UK I’d read an extremely interesting essay in the International Review of Law and Economics 37 (2014) 108-20 – stored on Good Reader on my iPad – in which Bruce Benson and Zafar Siddiqui argued that the system works not only to provide a decentralised, local and regional system of order and regulation – so Hobbes was wrong: without the state people do not automatically revert to a ‘state of nature’ (Tom Ginsburg is very good on this) – but also to defend the Pashtun from the incursions of the central state. Indeed, the Frontier Crimes Regulations specifically recognised the validity and autonomy of the Jirga: much more here. The message from all this was clear: ‘The Pashtun tribes who inhabit the rugged mountains between Afghanistan and Pakistan are neither lawless nor defenceless.’

The Pakistan Taliban know this very well, not surprisingly, and in many instances work with Pashtunwali to mediate disputes in the FATA. In fact, as the train curved around the Lake District I remembered reading about a Jirga being convened in Datta Khel in March 2011 to resolve a dispute over a chromite mine. It’s odd how some things stick in your mind, like burrs on your jeans, but this incident had stayed with me because the Jirga had been targeted by the CIA and two Hellfire missiles were launched from a drone, killing more than 40 people. In itself, that probably wouldn’t have been enough for me to remember it in any detail since it was all too common – but the usual faceless and anonymous US official, speaking off the record because he was not authorised to comment in his official capacity, had offered a series of ever more bizarre justifications for the strike: and I remembered those (as you’ll see in a moment, you could hardly forget them).

So I started to dig some more – WiFi on the train – and discovered that Eyal Weizman and his brilliant colleagues at Goldsmith’s Forensic Architecture had reconstructed this very strike (the image above is from their work):

‘In the absence of on-the-ground photographic or video documentation, and with no visible impact on buildings, this investigation unfolded by cross-referencing witness testimonies with satellite imagery. An examination of before and after satellite imagery indicated two areas with surface disturbance consistent with the reported missile strikes, thus allowing us to confirm the location of the strike. From the testimonies of survivors and eye-witnesses, we harvested spatial information that helped us to generate a 3D model of the site of the drone strike on the Jirga.’

Then all (!) I had to do was go back in to my e-files (each morning I work my way through the press, copying and pasting reports and commentaries into a series of files so that I have my own searchable archive), recover the glosses provided by that anonymous official, and put them together with the reconstruction. Here’s the result:

You can read more about these reconstructions here (‘The forensics of a lethal drone attack’). This strike is one of several investigated by the UN’s Special Rapporteur Ben Emmerson, and you can find much more information at the interactive website produced in collaboration with Forensic Architecture and SITU Research that accompanies his written report to the United Nations (28 February 2014) (the Datta Khel incident is summarised in paragraph 50, but the website provides a far richer understanding). You can also download hi-res versions of Forensic Architecture’s stills and videos here.

What I find so significant is that the anonymous official provided a series of different and, as I’ve said, bizarre (even offensive) descriptions of what the assembly in Datta Khel was not: but he was clearly incapable of recognising what it was. This was certainly another performance of the space of exception, but it was plainly not a legal ‘black hole’, as some commentators gloss Agamben. The only ‘black holes’ were the craters in the ground and the conspicuous failure to recognise the operative presence of customary law.