Red Cross-Fire

Posted on March 15, 2016 by Derek Gregory

Yet more on violations of medical neutrality in contemporary conflicts (see my posts here, here, here and here). Over at Afghan Analysts Network Kate Clark provides a grim review of (un)developments in Afghanistan, Clinics under fire? Health workers caught up in the Afghan conflict.

Those providing health care in contested areas in Afghanistan say they are feeling under increasing pressure from all sides in the war. There have been two egregious attacks on medical facilities in the last six months: the summary execution of two patients and a carer taken from a clinic in Wardak by Afghan special forces in mid-February – a clear war crime – and the United States bombing of the Médecins Sans Frontières (MSF) hospital in Kunduz in October 2015, which left dozens dead and injured – an alleged war crime. Health professionals have told AAN of other violations, by both pro and anti-government forces. Perhaps most worryingly, reports AAN Country Director Kate Clark, have been comments by government officials, backing or defending the attacks on the MSF hospital and Wardak clinic [see image below].

So, for example:

Afghan government reactions to the news of the Wardak killings [at Tangi Sedan during the night of 17/18 February 2016; see also here] came largely at the provincial level, from officials who saw no problem in those they believed were Taleban – wounded or otherwise – being taken from a clinic and summarily executed. Head of the provincial council, Akhtar Muhammad Tahiri, was widely quoted, saying: “The Afghan security forces raided the hospital as the members of the Taliban group were being treated there.” Spokesperson for the provincial governor, Toryalay Hemat, said, “They were not patients, but Taliban,” and “The main target of the special forces was the Taliban fighters, not the hospital.” Spokesman for Wardak’s police chief, Abdul Wali Noorzai, said “Those killed in the hospital were all terrorists,” adding he was “happy that they were killed.”

Yet, the killings were a clear war crime. The Laws of Armed Conflict, also known as International Humanitarian Law, give special protection to medical facilities, staff and patients during war time – indeed, this is the oldest part of the Geneva Conventions. The Afghan special forces’ actions in Wardak involved numerous breaches: forcibly entering a medical clinic, harming and detaining staff and killing patients. The two boys and the man who were summarily executed were, in any case, protected either as civilians (the caretaker clearly, the two patients possibly – they had claimed to have been injured in a motorbike accident) or as fighters who were hors d’combat (literally ‘out of the fight’) because they were wounded and also then detained. Anyone who is hors d’combat is a protected person under International Humanitarian Law and cannot be harmed, the rationale being that they can no longer defend themselves. It is worth noting that, for the staff at the clinic to have refused to treat wounded Taleban would also have been a breach of medical neutrality: International Humanitarian Law demands that medical staff treat everyone according to medical need only.

That the Wardak provincial officials endorsed a war crime is worrying enough, but their words echoed reactions from more senior government officials to the US military’s airstrikes on a hospital belonging to the NGO Médecins Sans Frontières on 3 October 2015. Then, ministers and other officials appeared to defend the attack by saying it had targeted Taleban whom they said were in the hospital (conveniently forgetting that, until the fall of Kunduz city became imminent when the government evacuated all of its wounded from the hospital except the critically ill, the hospital had largely treated government soldiers). The Ministry of Interior spokesman, for example, said, “10 to 15 terrorists were hiding in the hospital last night and it came under attack. Well, they are all killed. All of the terrorists were killed. But we also lost doctors. We will do everything we can to ensure doctors are safe and they can do their jobs.”

MSF denied there were any armed men in the hospital. However, even if there had been, International Humanitarian Law would still have protected patients and medical staff: they would still have had to have been evacuated and warnings given before the hospital could have been legally attacked.

Not surprisingly heads of various humanitarian agencies all reported that the situation was worsening:

“General abuses against medical staff and facilities are on the rise from all parties to the conflict,” said one head of agency, while another said, “We have a good reputation with all sides, but we have still had threats from police, army and insurgents.” The head of a medical NGO described the situation as “messy, really difficult”:

All health facilities are under pressure. We have had some unpleasant experiences, The ALP [Afghan Local Police] are not professional, not disciplined. If the ALP or Taleban take over a clinic, we rely on local elders [to try to sort out the situation]. We are between the two parties.

He described the behaviour of overstretched Afghan special forces as “quite desperate,” adding, “They are struggling, trying to be everywhere and get very excited when there’s fighting.” Most of them, he said, were northerners speaking little or no Pashto, which can make things “difficult for our clinics in the south.”

The head of another agency listed the problems his staff are facing:

“We have seen the presence of armed men in medical facilities, turning them into targets. We have seen violations by the ANSF [Afghan National Security Forces], damage done to health facilities that were taken over as bases to conceal themselves and fight [the insurgents] from. We have seen checkpoints located close to health centres. Why? So that in case of hostilities, forces can take shelter in the concrete building. We have seen looting. We have seen ANSF at checkpoints deliberately causing delays, especially in the south, including blocking patients desperately needing to get to a health facility. We can never be certain that [such a delay] was the cause of death, but we believe it has been.”

He said his medical staff had been threatened by “ANSF intervening in medical facilities at the triage stage, forcing doctors to stop the care of other patients and treat their own soldiers, in disregard of medical priorities.” Less commonly, but more dangerously for the doctors themselves, he said, was the threat of Taleban abduction. He described a gathering of surgeons in which all reported having been abducted from their homes at least once and brought to the field to attend wounded fighters “with all the dangers you can imagine along the road.” He said the surgeons were “forced to operate without proper equipment and forced to abandon their own patients in clinics because the abduction would last days.”

Locally, medical staff often try to mitigate threats from both government forces and insurgents by seeking protection first from the local community. One head of agency described their strategy:

“When we open a clinic, our first interlocutors are the elders. Everyone wants a clinic in their area, but we decide the location and make the elders responsible for the clinic… They have to give us a building – three to four rooms. All those who work in the clinic – the ambulance driver, the owner of the vehicle, everyone – come from the area. We also need the elders to deal with the parties… If the ALP or Taleban take over clinic, we always start with the elders [who negotiate with whoever has taken over the clinic].”

However, this tactic puts a burden on community elders who may not be able to negotiate if the ANSF, ALP or insurgents are also threatening them.

***

I’ve delayed following up my previous commentaries on the US airstrike on the MSF Trauma Center in Kunduz (here and here) because I had hoped the full report of the internal investigation carried out by the US military would be released: apparently it runs to 3,000-odd pages. I don’t for a minute believe that it would settle matters, but in any event nothing has emerged so far – though I’m sure it’s subject to multiple FOIA requests and, if and when it is released, will surely have been redacted.

All we have is an official statement by General John Campbell on 25 November 2015 (above), which described the airstrike as ‘a tragic, but avoidable accident caused primarily by human error’, and a brief Executive Summary of the findings of the Combined Civilian Casualty Assessment Team (made up of representatives from NATO and the Afghan government) which emphasised that those errors were ‘compounded by failures of process and procedure, and malfunctions of technical equipment.’

The parallel investigations identified a series of cumulative, cascading errors and malfunctions:

(1) The crew of the AC-130 gunship that carried out the attack set out without a proper mission brief or a list of ‘no-strike’ targets; the aircraft had been diverted from its original mission, to provide close air support to ‘troops in contact’, and was unprepared for this one (which was also represented as ‘troops in contact’, a standard designation meaning that troops are under hostile fire).

(2) Communications systems on the aircraft failed, including – crucially – the provision of video feeds to ground force commanders and the transmission of electronic messages (the AC-130 has a sophisticated sensor and communications suite – or ‘battle management center’ –on board, staffed by two sensor operators, a navigator, a fire control officer, and an electronic warfare officer, and many messages are sent via classified chat rooms).

The problem was apparently a jerry-rigged antenna that was supposed to link the AC-130 to the ground. Here is how General Bradley Heithold explained it to Defense One:

“Today, we pump full-motion video into the airplane and out of the airplane. So we have a Ku-band antenna on the airplane … the U-model…. On our current legacy airplanes, the solution we used was rather scabbed on: take the overhead escape hatch out, put an antenna on, stick it back up there, move the beams around. We’ve had some issues, but we’re working with our industry partners to resolve that issue.”

He added, “99.9 percent of the time we’ve had success with it. These things aren’t perfect; they’re machines.”

Heithold said that dedicated Ku-band data transfer is now standard on later models of the AC-130, which should make data transfer much more reliable.

(3) Afghan Special Forces in Kunduz had requested close air support for a clearing operation in the vicinity of the former National Directorate of Security compound, which they believed was now a Taliban ‘command and control node’. The commander of US Special Forces on the ground agreed and provided the AC-130 crew with the co-ordinates for the NDS building. He could see neither the target nor the MSF Trauma Center from his location but this is not a requirement for authorising a strike; he was also working from a map that apparently did not mark the MSF compound as a medical facility. According to AP, he had been given the coordinates of the hospital two days before but said he didn’t recall seeing them. The targeting system onboard the AC-130 was degraded and directed the aircraft to an empty field and so the crew relied on a visual identification of the target using a description provided by Afghan Special Forces – and they continued to rely on their visual fix even when the targeting system had been re-aligned (‘the crew remained fixated on the physical description of the facility’) and, as David Cloud points out, even though there was no visible sign of ‘troops in contact’ in the vicinity of the Trauma Center (‘An AC-130 is normally equipped with infrared surveillance cameras capable of detecting gunfire on the ground’):

Sundarsan Raghaven adds that ‘Not long before the attack on the hospital, a U.S. airstrike pummeled an empty warehouse across the street from the Afghan intelligence headquarters. How U.S. personnel could have confused its location only a few hours later is not clear…’ More disturbingly, two US Special Forces troops have claimed that their Afghan counterparts told their commander that it was the Trauma Center that was being used as the ‘command and control node’, and that the Taliban ‘had already removed and ransomed the foreign doctors, and they had fired on partnered personnel from there.’

(4) The aircrew cleared the strike with senior commanders at the Joint Operations Center at Bagram and provided them with the co-ordinates of the intended target. Those commanders failed to recognise that these were the co-ordinates of the MSF hospital which was indeed on the ‘no-strike’ list; ‘this confusion was exacerbated by the lack of video and electronic communications between the headquarters and the aircraft, caused by the earlier malfunction, and a belief at the headquarters that the force on the ground required air support as a matter of immediate force protection’;

(5) The strike continued even after MSF notified all the appropriate authorities that their clinic was under attack; no explanation was offered, though the US military claims the duration was shorter (29 minutes) than the 60-minutes reported by those on the ground.

Campbell announced that those ‘most closely associated’ with the incident had been suspended from duty for violations of the Rules of Engagement – those ‘who requested the strike and those who executed it from the air did not undertake the appropriate measures to verify that the facility was a legitimate military target’ – though he gave no indication how far up the chain of command responsibility would be extended; in January it was reported that US Central Command was weighing disciplinary action against unspecified individuals. In the meantime, solatia payments had been made to the families of the killed ($6,000) and injured ($3,000).

Not surprisingly, MSF reacted angrily to Campbell’s summary: according to Christopher Stokes,

‘The U.S. version of events presented today leaves MSF with more questions than answers. The frightening catalog of errors outlined today illustrates gross negligence on the part of U.S. forces and violations of the rules of war.’

Joanne Liu, MSF’s President, subsequently offered a wider reflection on war in today’s ‘barbarian times’, prompted by further attacks on other hospitals and clinics in Afghanistan, Syria, Yemen and elsewhere:

“The unspoken thing, the elephant in the room, is the war against terrorism, it’s tainting everything,” she said. “People have real difficulty, saying: ‘Oh, you were treating Taliban in your hospital in Kunduz?’ I said we have been treating everyone who is injured, and it will have been Afghan special forces, it will have been the Taliban, yes we are treating everybody.”

She added: “People have difficulty coming around to it. It’s the core, stripped-down-medical-ethics duty as a physician. If I’m at the frontline and refuse to treat a patient, it’s considered a crime. As a physician this is my oath, I’m going to treat everyone regardless.”

Kate Clark‘s forensic response to the US investigation of the Kunduz attack is here; she insists, I think convincingly, that

‘… rather than a simple string of human errors, this seems to have been a string of reckless decisions, within a larger system that failed to provide the legally proscribed safeguards when using such firepower. There were also equipment failures that compounded the problem but, again, if the forces on the ground and in the air had followed their own rules of engagement, the attack would have been averted.’

This is what just-in-time war looks like, but it’s not enough to blame all this on what General Campbell called a ‘high operational tempo’. As a minimum, we need to be able to read the transcripts of the ground/air communications – which are recorded as a matter of course, no matter what the tempo, and which are almost always crucial in any civilian casualty incident resulting from ‘troops in contact’ (see, for another vivid example, my discussion here) – to make sense of the insensible.

Watching the detectives

Posted on October 8, 2015 by Derek Gregory

I wrote about medical neutrality earlier this year (see here). As I noted then, Physicians for Human Rights stipulates that medical neutrality requires:

The protection of medical personnel, patients, facilities, and transport from attack or interference;
Unhindered access to medical care and treatment;
The humane treatment of all civilians; and
Nondiscriminatory treatment of the sick and injured.

In the wake of the US air strike on a hospital operated by Médecins Sans Frontières (MSF) in Kunduz on 3 October, that first requirement assumes even greater significance: the obligation is not merely to exempt medical personnel, patients and infrastructure from military and paramilitary violence but to protect them from attack.

MSF provides details and updates on the strike here. As I write, far and away the most substantial commentary on what happened – given what we know so far – is Kate Clark‘s detailed analysis at the Afghan Analysts Network here (though Matt Lee‘s angry comparison with an Israeli military attack on a hospital in Gaza is worth reading too). As Kate notes,

Expressing distrust in the US military, NATO or Afghan government to uncover the truth, [MSF] said it wants an investigation by the International Humanitarian Fact-Finding Commission (IHFFC), a body set up by the Additional Protocols of the Geneva Conventions and, says MSF, is the only permanent body set up specifically to investigate violations of international humanitarian law. It has never been used before and, as neither Afghanistan or the United States have formally recognized the Commission, any investigation would have to be voluntary.

The IHFFC issued this statement today:

The International Humanitarian Fact-Finding Commission (IHFFC) has been contacted by Médecins Sans Frontières (MSF, Doctors Without Borders) in relation to the events in Kunduz, Afghanistan, on 3 October 2015.

The IHFFC stands ready to undertake an investigation but can only do so based on the consent of the concerned State or States. The IHFFC has taken appropriate steps and is in contact with MSF. It cannot give any further information at this stage.

Alex Jeffrey has commented briefly on the geopolitics of any investigation by the IHFFC, but there has been little or no commentary on how the US military investigates civilian casualty incidents – and this merits discussion because the Obama administration has insisted that the inquiry already under way by the Pentagon will be ‘transparent’, ‘thorough’ and ‘objective’. And whatever may or may not transpire with respect to the IHFFC, it’s exceptionally unlikely that the US military investigation will be stopped.

I’ve worked through five investigations of so-called ‘CIVCAS’ in Afghanistan that have been released through Freedom of Information Act requests. Each branch of the US military is required to maintain its own digital FOIA Reading Room, so that any documentation supplied in response to these requests is released into the public domain. I should say that you need to be adept at using the search function, and to have a very good idea of what you are looking for before you start (though the Pentagon has been remarkably helpful in responding to my inquiries and questions).

It’s also fair to say that the release of investigation reports is uneven. In the immediate aftermath of an earlier, devastating air strike on two tankers hijacked by the Taliban near Kunduz, called in by the German Bundeswehr but carried out by two US aircraft (see my extended discussion here), the United States repeatedly promised to release the investigation report: but it never did, even to the German Bundestag’s committee of inquiry, and despite repeated requests it remains classified.

There is also considerable variation in the transparency and quality of the reports that have been released: some are so heavily redacted that it is extremely (and no doubt intentionally) difficult to construct a reasonably comprehensive narrative, while others are the product of inquiries that seem to have been, at best, perfunctory.

The report into the airstrike in Uruzgan that I have been using for my analysis of the US air strike in Uruzgan in February 2010 – see ‘Angry Eyes (1)‘ and ‘Angry Eyes (2)‘: more to come – is neither. It has been redacted, presumably for reasons of national, operational or personal security, but its 2,000 pages provide enough detail to reconstruct most of what happened. And the investigation team was remarkably thorough: by turns forensic, sympathetic, exasperated and eventually blisteringly angry at what they found. Whether this provides an indication of what we can expect from the present inquiry I don’t know, but it does provide a benchmark of sorts for what we (and, crucially, MSF) ought to expect. (There are also ongoing investigations by NATO and by the Afghan authorities, but no details have been released about them either).

The strike took place on 21 February 2010, and the very next day General Stanley McChrystal (Commander US Forces – Afghanistan and ISAF, Afghanistan) appointed Major-General Timothy McHale to conduct what the US Army calls ‘an informal investigation’ into the incident that ‘allegedly resulted in the deaths of 12-15 local Afghan nationals and caused injured to others’; McHale was assisted by a team of senior officers, including subject matter experts and legal advisers:

There are two points to note here.

First, this was an investigation conducted by the US Army because the airstrike had been called in by US Special Forces and had been carried out by two US Army helicopter crews. But the strike was orchestrated in large measure by a US Air Force Predator crew from Creech Air Force Base in Nevada; in addition to questioning the soldiers and helicopter crews involved, McHale’s team also questioned the Predator flight crew together with the screeners and video analysts at Air Force Special Operations Command at Hurlburt Field in Florida. McHale’s report triggered a second ‘Commander-Directed Investigation’ by US Air Force Brigadier-General Robert Otto into the actions and assessments of the Predator crew; that report was submitted on 30 June 2010. As I write, it’s not known who is leading the US investigation into the bombing of the hospital in Kunduz. Since (on the fourth telling) the strike appears to have been called in by US Special Forces (at the request of Afghan forces) and carried out by a US Air Force AC-130 gunship this will presumably be a joint investigation.

Second, the term ‘informal investigation’ is a technical one; certainly, on McHale’s watch the conduct of the inquiry was remarkably rigorous. US Army Regulation 15-6 sets out how the Army is to conduct an investigation:

‘The primary function of any investigation or board of officers is to ascertain facts and to report them to the appointing authority. It is the duty of the investigating officer or board to ascertain and consider the evidence on all sides of each issue, thoroughly and impartially, and to make findings and recommendations that are warranted by the facts and that comply with the instructions of the appointing authority.’

Here is the distinction between informal and formal investigations (I’ve taken this summary from a US Army Legal Guide here; the full version, specifying the conduct of an informal investigation, is here and here):

“Informal investigations may be used to investigate any matter, to include individual conduct. The fact that an individual may have an interest in the matter under investigation or that the information may reflect adversely on that individual does not require that the proceedings constitute a hearing for that individual. Even if the purpose of the investigation is to inquire into the conduct or performance of a particular individual, formal procedures are not mandatory unless required by other regulations or by higher authority. Informal investigations provide great flexibility. Generally, only one investigating officer is appointed (though multiple officers could be appointed); there is no formal hearing that is open to the public; statements are taken at informal sessions; and there is no named respondent with a right to counsel (unless required by Art 31(b), UCMJ); right to cross-examine witnesses; etc….

“Generally, formal boards are used to provide a hearing for a named respondent. The board offers extensive due process rights to respondents (notice and time to prepare, right to be present at all open sessions, representation by counsel, ability to challenge members for cause, to present evidence and object to evidence, to cross examine witnesses, and to make argument). Formal boards include a president, voting members, and a recorder who presents evidence on behalf of the government. A Judge Advocate (JA) is normally appointed as recorder but is not a voting member. If a recorder is not appointed, the junior member of the board acts as recorder and is a voting member. Additionally, a non-voting legal advisor may be appointed to the board. Formal AR 15-6 investigations are not normally used unless required by regulation.’

In setting all this out, I should add two riders. In treating MG McHale’s investigation in such detail, I don’t mean to imply that I fully concur with its analysis. This is a judgement call, of course: the redactions make it difficult to press on several key issues, all of which relate to who knew what when and where (more to come on this). And neither do I mean to suggest that any US military investigation into what happened in Kunduz, however probing, would be adequate. As MSF’s Chris Stokes has said, ‘relying only on an internal investigation by a party to the conflict would be wholly insufficient.’ But if the report is conducted with the same careful attention to detail – and if it is released with minimal redactions – it would provide a necessary resource for all those involved in and affected by this truly appalling incident.

More to come – I hope.

UPDATE (1): The US investigation is headed by Brigadier-General Richard Kim. Nancy Youssef reports that his arrival in Kunduz was delayed ‘because of instability in the northern Afghan city.’ As with the Uruzgan air strike in 2010, the video recording from the AC-130 gunship that carried out the attack, together with audio recordings of conversations between the air crew and ground troops, will be of great importance. According to Youssef, these show that ‘rules of engagement—the guidelines for the use of force—were misapplied.’ (In the Uruzgan case, the radio conversations between the air crew(s) and the Joint Terminal Attack Controller on the ground were released in redacted form in response to a FOIA request; apart from a single image of the strike, however, the video remains classified.)

I’ve previously noted the debate surrounding the Pentagon’s new Law of War manual which was issued in June 2015; since the US has admitted that the strike on the hospital was carried out within the US chain of command, section 7.17 on ‘Civilian hospitals and their personnel’ is particularly relevant (see also the Guardian report here):

During international armed conflict, civilian hospitals organized to give care to the wounded and sick, the infirm, and maternity cases, may in no circumstances be the object of attack, but shall at all times be respected and protected by the parties to the conflict.

7.17.1 Loss of Protection for Civilian Hospitals Used to Commit Acts Harmful to the Enemy. The protection to which civilian hospitals are entitled shall not cease unless they are used to commit, outside their humanitarian duties, acts harmful to the enemy.

7.17.1.1 Acts Harmful to the Enemy. Civilian hospitals must avoid any interference, direct or indirect, in military operations, such as the use of a hospital as a shelter for able-bodied combatants or fugitives, as an arms or ammunition store, as a military observation post, or as a center for liaison with combat forces. However, the fact that sick or wounded members of the armed forces are nursed in these hospitals, or the presence of small arms and ammunition taken from such combatants and not yet handed to the proper service, shall not be considered acts harmful to the enemy.

7.17.1.2 Due Warning Before Cessation of Protection. In addition, protection for civilian hospitals may cease only after due warning has been given, naming, in all appropriate cases, a reasonable time limit, and after such warning has remained unheeded.

The obligation to refrain from use of force against a civilian medical facility acting in violation of its mission and protected status without due warning does not prohibit the exercise of the right of self-defense. There may be cases in which, in the exercise of the right of self- defense, a warning is not “due” or a reasonable time limit is not appropriate. For example, forces receiving heavy fire from a hospital may exercise their right of self-defense and return fire. Such use of force in self-defense against medical units or facilities must be proportionate. For example, a single enemy rifleman firing from a hospital window would warrant a response against the rifleman only, rather than the destruction of the hospital.

MSF has consistently denied that anyone was firing from the hospital; it has also insisted that it received no advance warning of the attack – on the contrary, MSF ensured that all US and Afghan forces had the co-ordinates of the hospital, and made frantic phone calls to try to stop the bombing once it started.

UPDATE (2): A team from the Washington Post has produced a remarkably detailed report, ‘based on multiple interviews in Afghanistan and the United States with U.S. and Afghan military officials, Doctors Without Borders personnel and local Kunduz residents’; it includes maps and a graphic showing exactly what an AC-130 is capable of.

As you can see, the illustration makes much of the aircraft’s concentrated firepower, unleashed as it circles counter-clockwise around the target in a five-mile orbit, but the AC-130 also has an extensive sensor suite on board (see ‘Angry Eyes (1)‘: an AC-130 was involved in the early stages of the Uruzgan incident). The reporters do note that the aircraft is equipped with ‘low-light and thermal sensors that give it a “God’s eye [view]” of the battlefield in almost all weather conditions’ – but, as I’ve tried to show in my posts on Uruzgan (and as we know from other sources!), there’s no such thing as a God’s eye view. Even so, the aircrew can surely have been in no doubt that they were bombing a hospital.

Killing the SIMs

Posted on February 10, 2014 by Derek Gregory

Hard on the heels of yesterday’s post about Metadata+ – and my earlier, necessarily impressionistic discussion of the National Security Agency, drone strikes in Pakistan and what I called ‘the everyware war’ – comes a report from Jeremy Scahill and Glenn Greenwald at The Intercept that details the NSA’s role in the US’s targeted killing programme.

The programme is carried out by multiple means and multiple agencies (including the US military), but the main source for their report is a former drone operator from Joint Special Operations Command (JSOC) – and readers of Jeremy’s Dirty Wars will know that it is JSOC rather than the CIA that is his main critical target. We’ve known about the NSA’s Geolocation Cell (‘GeoCell’) for some time now. Last summer Dana Priest outlined the history of collaboration between the National Geospatial Intelligence Agency and the NSA, which she traced back to the months following 9/11, and the determination to use cell phones as ‘targeting beacons’:

The cell opened up chat rooms with military and CIA officers in Afghanistan — and, eventually, Iraq — who were directing operations there. Together they aimed the NSA’s many sensors toward individual targets while tactical units aimed their weaponry against them.

A motto quickly caught on at Geo Cell: “We Track ’Em, You Whack ’Em.”

But, as Scahill and Greenwald show, the process remains far from reliable. Their informant confirms that strikes are often carried out on the basis of metadata analysis and cellphone tracking (‘SIGINT’) rather than human intelligence (agents on the ground), and he admits that it is a hit or miss affair, and literally so: ‘high value targets’ have been killed, but so too have innocent people.

[T]he geolocation cells at the NSA that run the tracking program – known as Geo Cell – sometimes facilitate strikes without knowing whether the individual in possession of a tracked cell phone or SIM card is in fact the intended target of the strike.

“Once the bomb lands or a night raid happens, you know that phone is there,” he says. “But we don’t know who’s behind it, who’s holding it. It’s of course assumed that the phone belongs to a human being who is nefarious and considered an ‘unlawful enemy combatant.’ This is where it gets very shady.”

There are several lists of so-called High Value Targets, but the operational problem is, as he concedes, ‘We’re not going after people – we’re going after their phones.’

[T]racking people by metadata and then killing them by SIM card is inherently flawed. The NSA “will develop a pattern,” he says, “where they understand that this is what this person’s voice sounds like, this is who his friends are, this is who his commander is, this is who his subordinates are. And they put them into a matrix. But it’s not always correct. There’s a lot of human error in that.”

The programme relies on more than what we have come to think of as standard (though still shocking) NSA intercepts of communications. For more on the NSA’s global tracking of cellphones, see Barton Gellman and Ashkan Soltani here, from which I’ve taken the image below.

As the graphic shows, the standard method of ‘co-location analytics’ tracks not only targets but also their associates (‘co-travellers’) using cell towers (which have in turn become key targets for insurgent attack in Afghanistan partly for this reason).

For clandestine operations in Afghanistan, Pakistan, Yemen, Somalia and elsewhere the NSA’s geolocation system codenamed ‘GILGAMESH’ (king of the city-state of Uruk in Mesopotamia: where do they get these names from?) equips Predators assigned to JSOC with ‘virtual base-tower transceivers’ that can track and locate a SIM card to within 30 feet; the information is then used in near-real time to activate an air strike or a night raid through a network that has ‘cued and compressed numerous kill chains’.

The CIA uses another system, codenamed SHENANIGANS (no mystery about that one), which collects data ‘from any wireless routers, computers, smart phones or other electronic devices that are within range.’ Last fall Greg Miller, Julie Tate and Barton Gellman described how the system was used in the targeted killing of Hassan Ghul in Mir Ali in Waziristan in October 2012:

In the search for targets, the NSA has draped a surveillance blanket over dozens of square miles of northwest Pakistan. In Ghul’s case, the agency deployed an arsenal of cyber-espionage tools, secretly seizing control of laptops, siphoning audio files and other messages, and tracking radio transmissions to determine where Ghul might “bed down.”

The e-mail from Ghul’s wife “about her current living conditions” contained enough detail to confirm the coordinates of that household, according to a document summarizing the mission. “This information enabled a capture/kill operation against an individual believed to be Hassan Ghul on October 1,” it said.

The file is part of a collection of records in the Snowden trove that make clear that the drone campaign — often depicted as the CIA’s exclusive domain — relies heavily on the NSA’s ability to vacuum up enormous quantities of e-mail, phone calls and other fragments of signals intelligence, or SIGINT.

To handle the expanding workload, the NSA created a secret unit known as the Counter-Terrorism Mission Aligned Cell, or CT MAC, to concentrate the agency’s vast resources on hard-to-find terrorism targets. The unit spent a year tracking Ghul and his courier network, tunneling into an array of systems and devices, before he was killed. Without those penetrations, the document concluded, “this opportunity would not have been possible.”

The two systems are agency-specific but they often work in concert: Scahill and Greenwald note one joint operation in 2012, ‘VICTORYDANCE’, that ‘mapped the WiFi fingerprint of nearly every town in Yemen.’

The documents that they draw upon are from various dates, extending back to 2005, so that these are a series of snapshots of an uneven and developing set of systems. Still, the concerns about accuracy are persistent, and although they don’t cite her report Kate Clark‘s forensic examination of the attempted killing of the Taliban shadow governor of Takhar province in Afghanistan in September 2010 provides an exceptionally detailed account of the dangers of relying on metadata and cellphone tracking. Here is what I said about this in my discussion of Targeted Killing and Signature Strikes:

On 2 September 2010 ISAF announced that a ‘precision air strike’ earlier that morning had killed [Muhammad Amin] and ‘nine other militants’. The target had been under persistent surveillance from remote platforms – what Petraeus later called ‘days and days of the unblinking eye’ – until two strike aircraft repeatedly bombed the convoy in which he was travelling. Two attack helicopters were then ‘authorized to re-engage’ the survivors. The victim was not the designated target, however, but Zabet Amanullah, the election agent for a parliamentary candidate; nine other campaign workers died with him. Clark’s painstaking analysis clearly shows that one man had been mistaken for the other, which she attributed to an over-reliance on ‘technical data’ – on remote signatures. Special Forces had concentrated on tracking cell phone usage and constructing social networks. ‘We were not tracking the names,’ she was told, ‘we were targeting the telephones.’

The Takhar case has been on my mind again because, as Kate revealed in a new report last week, the agencies involved in targeted killing reach beyond the NSA – and beyond the USA.

The involvement of Britain’s GCHQ and other ‘Five Eyes’ sites in global surveillance has become well-known in recent months – and see Nikolas Kozloff for a short reflection on its ‘geopolitics of racism‘ (though he ignores the willingness to spy on other European states and allies) – but Kate’s new report is significant for what it reveals about the complicity of civilian police agencies. In August 2013 Habib Rahman, who lost two brothers, two uncles and his father-in-law in the Takhar attack, petitioned for a judicial review of the involvement of Britain’s Ministry of Defence and the (civilian) Serious Organised Crime Agency (SOCA) – whose brief includes the drug trade from Afghanistan – in the compilation of the Joint Prioritised Effects List (one of the lists of priority targets used by the Pentagon).

SOCA is part of the Joint Inter-Agency Afghanistan Task Force (JIATF), a military-police task force based at Kandahar AFB that also includes the US Drug Enforcement Agency, the US military and the British military. In a US Senate report on the nexus between drug trafficking and insurgency, ‘Afghanistan’s Narco War‘, a SOCA investigator described the proposed collaboration as ‘a critical opportunity to blend military and law enforcement expertise’ (p.15). At the time (August 2009) the JIATF was awaiting formal approval from Washington and London, but informal collaboration was already under way, and the SOCA officer was enthusiastic about its consolidation:

‘In the past, the military would have hit and evidence would not have been collected,’ he explained. ‘Now, with law enforcement present, we are seizing the ledgers and other information to develop an intelligence profile of the networks and the drug kingpins.’ An American military officer with the project was blunter, telling the committee staff, ‘Our long-term approach is to identify the regional drug figures and corrupt government officials and persuade them to choose legitimacy or remove them from the battlefield.’

Rahman’s lawyers argued:

As a civilian policing organisation SOCA has no legitimate or lawful role to play in the compilation or administration of this Kill List – it has no authority to be involved in military operations and the killing of individuals. The courts must urgently review whether the SOCA’s and indeed the UK’s role in the compilation, review and execution of this list if unlawful. Incidents like that affecting our client must be properly investigated.

In response, SOCA acknowledged making its intelligence available to the military, but added these provisos:

SOCA places restrictions on the dissemination of intelligence to the ISAF. Intelligence which is disseminated by SOCA is required to include handling conditions which require the express approval of the originator if it is proposed to use the material for military targeting purposes. If the mission is to arrest, with a view to criminal investigation and potential prosecution, SOCA would ordinarily be prepared to provide and/or allow the use of its intelligence. On the other hand, if the primary option for a mission is to use lethal force, SOCA would not provide intelligence or allow the use of its intelligence in support of such a mission, save potentially where the individual who is the target of the operation poses a significant and immediate threat to he lives of others (and so such disclosure would be for the purpose of preventing a criminal offence).

The judge dismissed Rahman’s claim. But read that last sentence again. These missions are almost always designated as ‘kill or capture’, and while in practice ‘kill’ is often preferred over ‘capture’, how likely is it that the ‘primary option for a mission’ would be advertised as a targeted killing before the intelligence were made available? An undated US Justice Department memo setting out conditions for targeted killing included the stipulation that where ‘capture is infeasible’ the US would continue ‘to monitor whether capture becomes feasible’, which turns the mission (and SOCA’s proviso) into a moving target in more ways than one. Once intelligence has been incorporated into the matrix it can hardly be withdrawn or embargoed.

And that final clause about pre-emptive action opens up a discretionary space that the Obama administration has already sought to enlarge with its demands for an ‘elongated’ concept of imminence in which the ‘immediacy’ of the threat is subject to prolongation to the point of contortion.

Rahman is not the first victim to have been rebuffed by British courts. Last month the Court of Appeal dismissed Noor Khan‘s case against the British Government over the role of GCHQ in providing ‘locational intelligence’ for a CIA-directed drone strike in March 2010 in Miranshah in North Waziristan that killed his father. The ruling accepted that the case put forward by Noor Khan’s barrister – that the provision of such intelligence risked contravening the Serious Crimes Act (2007) – was ‘attractive’ and ‘persuasive’, but concluded that the review could not proceed because the claims

‘involve serious criticisms of the acts of a foreign state. It is only in certain established circumstances that our courts will exceptionally sit in judgment of such acts. There are no such exceptional circumstances here.’

The state of exception, it turns out, is not so exceptional… To be continued.