I’ve been re-reading Keith Feldman‘s essay on ‘Empire’s verticality’ (Comparative American Studies 9  2011 325-41), which raises a series of incisive questions about what he calls ‘racialization from above’ in the Afghanistan-Pakistan borderlands. Keith was working on this while I was working on ‘From a view to a kill’ (see DOWNLOADS tab), and we exchanged ideas en route, but Keith’s essay provides a different and invaluable perspective. He begins with the famous Situation Room photograph by Pete Scott in which Obama and his senior advisors gaze at a live-feed from Abbotabad on 1 May 2011: since ‘the target of imperial retribution remains just outside the visual field’ – we see no images of the raid – Keith notes that ‘we are drawn to witness the witnessing of Bin Laden’s assassination.’ He focuses on the visual identification of a Muslim Other that is supposed to be precise and yet always remains blurred.
The scopic regime of late modern war is placed under even greater pressure when ‘signature strikes’ are conducted – when the target is not a named individual but a ‘person of interest’ whose ‘pattern of life’ has roused the suspicions of the distant watchers – and this has even more serious implications for civilian casualties.
There’s a short post from Kevin Jon Heller at Opinio Juris that addresses the issue by juxtaposing two quotations. The first is from a report in the New York Times on 29 May 2012 by Jo Becker and Scott Shane on ‘Obama’s Secret “Kill List”…’ and the CIA-controlled Predator strikes in Pakistan:
“… Mr. Obama embraced a disputed method for counting civilian casualties that did little to box him in. It in effect counts all military-age males in a strike zone as combatants, according to several administration officials, unless there is explicit intelligence posthumously proving them innocent. Counterterrorism officials insist this approach is one of simple logic: people in an area of known terrorist activity, or found with a top Qaeda operative, are probably up to no good.”
The second comes from Richard Falk‘s ‘Law and responsibility in warfare: the Vietnam experience’, where he quotes the man who ordered the My Lai massacre, Lt William Caley:
“If those people weren’t all VC [Viet Cong] then prove it to me. Show me that someone helped us and fought the VC. Show me that someone wanted us: one example only! I didn’t see any… Our task force commander’s staff said it’s a VC area and everyone there was a VC or a VC sympathizer. And that’s because he just isn’t young enough or old enough to do anything but sympathize.”
Heller doesn’t use the phrase, for obvious reasons, but this is another Catch-22…
But there’s another Vietnam parallel that I think is even more striking. In Lines of descent (DOWNLOADS tab) I described the creation of ‘free bomb zones’ or ‘free fire zones’ in South Vietnam.
In August 1965 [General] Westmoreland was authorized to order strikes in five free bomb zones that were ‘configured to exclude populated areas except those in accepted VC [Viet Cong] bases’. Within these zones the designation of target boxes dispensed with precise co-ordinates and detailed intelligence altogether, so that they became black boxes in every sense of the phrase, and approval was given in advance ‘for execution when appropriate’. Westmoreland was perfectly clear that ‘anybody who remained had to be considered an enemy combatant’ and so strikes could proceed ‘without fear of civilian casualties’.
With this in mind, here is a section that never made it in to the final version of ‘Lines of descent’, concerning the principle of distinction (the legal requirement to discriminate between combatants and non-combatants). My Lai makes an appearance here too, as a crucial moment after which the Pentagon agreed to provide military operations with a legal armature. And yet, as I tried to show in both my essays, incorporating lawyers into the kill-chain provides less protection for civilians than may at first appear: the balance between concrete military advantage and ‘collateral damage’ is still calibrated on the military’s own scales. I’m not saying that nothing has changed since Vietnam – the lines of descent are complex and tangled – but, as the final paragraph below shows, there are none the less disturbing parallels. ‘Blind bombing’ may well belong to the past, superseded by near real-time, high-resolution full-motion video feeds from Predators and Reapers, and yet – to return to Feldman – in scanning these images we continue to privilege the whites of our own eyes.
Distinction and the air war in Vietnam
The difficulty of distinguishing between ground troops, enemy forces and non-combatants was exacerbated by the use of air power in a non-linear battlespace, the ‘war without fronts’, because ‘the absence of clearly discernible bomb lines created a fluid environment in which it was not always possible to distinguish friendly from enemy forces.’ From the air, Schlight continued, ‘all soldiers looked alike and guerrillas were indistinguishable from non-combatants.’  He insists that there was an acute sensitivity to ‘accidental loss of life’. In Westmoreland’s (public) view, ‘one mishap, one innocent civilian killed, one civilian wounded or one dwelling needlessly destroyed, is one too many’, and this supposedly translated into ‘stringent’ rules of engagement. In particular, strikes on hamlets and villages required political clearance from Vietnamese authorities at least at a provincial level, they had to be directed by a Forward Air Controller or radar to minimize civilian casualties, and warnings had to be issued if the attacks were not in conjunction with ground forces; if this were impossible, the ground commander could designate the target, and in ‘specified strike zones’ (whose designation was held to ‘constitute prior political clearance’) pilots ‘could use their own judgement in hitting targets.’  In this, more or less official view, air strikes still killed civilians but every effort was made to minimize the loss of innocent lives.
Others see it differently. For some, it was a technical matter. When van Creveld writes of ‘the American airmen’s near-complete inability to distinguish between combatants and noncombatants’, he is simply echoing McNamara’s own post-war admission that it ‘proved difficult to distinguish combatants from noncombatants’ and that Westmoreland’s heavy reliance on bombing ‘produced more and more civilian casualties’: for both men this was an inherent limitation of air power in counterinsurgency.  It was inevitably compounded by the electronic battlefield, as Senator McGovern noted: ‘If ground troops sometimes will not, and usually cannot, distinguish between enemy and innocent in a guerrilla war, we know that aerial bombardment never can. The sensor which detects body heat, the aircraft thousands of feet in the air, the computer complex many miles distant, are completely neutral and indiscriminate.’  For others, as McGovern’s first clause implies, the lack of discrimination was too often a considered decision. The rules of engagement were elastic (in practice Vietnamese political clearance was readily obtained) and riddled with exceptions (there were many cases where clearance could be dispensed with altogether, including military necessity and specified strike zones). Clodfelter points out that this was in marked contrast to the bombing of North Vietnam where ‘detailed restrictions [were] placed on bombing targets’ because there the American political calculus included civilian casualties. This was not only true of the Johnson administration’s micro-management of Rolling Thunder; when President Nixon resumed the bombing of North Vietnam in 1972 he loosened the previous restrictions and returned operational control of these Linebacker campaigns to the military, but even his terror bombing of targets around the capital was circumscribed. ‘I want the people of Hanoi to hear the bombs,’ he instructed Strategic Air Command, ‘but minimize damage to the civilian population.’ In South Vietnam, however, where there were few restrictions or political restraints, Clodfelter concludes that ‘indiscriminate bombing contributed significantly to an estimated 1.16 million South Vietnamese civilian casualties during the war.’  The vital point is that many, perhaps even most of these injuries and deaths were not accidental, often not even incidental – the ‘collateral damage’ that international law accepts may result from attacking military targets – but the victims of deliberate and indiscriminate attack.
Discrimination has two meanings, one strategic and the other legal. For Kalyvas, violence against civilians is a central feature of insurgency and counterinsurgency, where historically both sides often targeted civilians to force them to comply, but it can be discriminate – directed against specific targets – or indiscriminate, based on collective attributes like place of residence.  Kocher, Pepinsky and Kalyvas argue that bombing in South Vietnam was indiscriminate because it was typically directed at areas, boxes or zones: ‘it could not target individual VC supporters while sparing government supporters or the uncommitted, even when intelligence was good’. They concede that this was, in part, a technical matter – target identification was often hit-or-miss and until Paveway laser-guided bombs were used in the Linebacker campaigns the delivery of ordnance was ‘inherently inaccurate’ – but in many cases they suggest that exposing civilian populations to aerial violence was a tactical choice. One leaflet drop warned people that ‘when the plane returns to sow death, you will have no more time to choose’, and many commanders welcomed the bombing of civilians: when he was asked if he was worried by the civilian casualties caused by bombing and shelling, Westmoreland himself airily replied, ‘Yes, but it does deprives the enemy of population, doesn’t it?’  This is perhaps unsurprising; bombing had been an established method of colonial ‘air control’ much earlier in the century. It turned out to be as counterproductive in Vietnam as it had been in Mesopotamia and the North West Frontier. Targeting collectives means that individuals ‘cannot avoid being victimized simply by refusing to participate in the insurgency’, and bombing the South clearly increased Viet Cong control in the affected areas. 
Discrimination also carries a legal charge, but it has a complicated history. After the Second World War there was an attempt to incorporate ‘protection of civilian persons in times of war’ into the Geneva Conventions, but these largely failed to address the vulnerability of civilian populations to military violence in general and to air strikes in particular.  In 1956 the International Committee of the Red Cross produced a series of Draft Rules that prohibited direct attacks on the civilian population and, in particular, attacks ‘without distinction’ on areas where military targets were close to the civilian population. This was an express attempt to outlaw area bombing, and it met with forceful opposition. In 1965 the ICRC reaffirmed the prohibition on direct attacks against the civilian population, and insisted on discrimination between those taking part in hostilities and civilians who should ‘be spared as much as possible’, and in December 1968 these basic principles were endorsed in UN Resolution 2444 on Respect for Human Rights in Armed Conflicts. In 1972 the Pentagon confirmed that it regarded these principles as declaratory of customary international law but added two riders. The United States insisted that it was permissible to attack military targets even if there were a risk of collateral damage, and in such cases the responsibility for distinguishing military objectives from civilian devolved upon ‘the party controlling the population.’  These were expedient qualifications in the (arc) light of South Vietnam, where insurgents swam in the sea of the population. In fact MACV’s legal advisor blamed the suffering of Vietnamese civilians on the law itself, which he claimed was ‘inadequate to protect victims in wars of insurgency and counterinsurgency’ because it drew on ‘examples from World War II which simply did not fit in Vietnam’ where ‘the hazy line between civilian and combatant became even vaguer’.  Another judge advocate said much the same: In Vietnam ‘the battlefield was anywhere and everywhere, with no identifiable front lines and no safe area. This meant that innocent civilians could not easily avoid the war or its suffering.’ He was silent about the responsibility of those conducting the war to avoid innocent civilians – justice, like much of the bombing, was blind – and limited his discussion to compensation payments where ‘loss or damage was caused by reckless or wanton conduct by U.S. forces.’  Not surprisingly, what is now called operational law remained strikingly undeveloped. Judge advocates at MACV were not consulted about air operations; one judge advocate attended meetings at Seventh Air Force headquarters, but these reviewed the previous week’s operations and ‘no one consulted him about future operations, the lawfulness of striking selected targets, or compliance with the rules of engagement’; tactical air control centers had no place for judge advocates who ‘had almost no contact with the people who planned or executed air operations’, and provided neither briefings nor advice on the laws of war or the rules of engagement. The single exception was a judge advocate based at the US Embassy in Thailand who scrutinized some target lists in North Vietnam. 
In fact, it was only after the publicity surrounding the My Lai massacre, in November 1974, that the Pentagon directed the armed services to implement a program to prevent violations of the Law of War; only then did the US military begin to incorporate legal oversight into its operations.  Most legal scrutiny of the air war in Vietnam was after the event – hence the essays by Hays Parks on Rolling Thunder and Linebacker that conclude that both were fully consistent with (in the case of Rolling Thunder even unduly sensitive to) international law – and, no less significantly, did not address the conduct of the air war in the South.  The crucial issue there is the distinction between civilians and combatants, and here Richard Falk, while granting that the law of armed conflict was inadequate and needed revision, none the less insisted that, in its promulgation of ‘free bomb zones’, in B-52 ‘pattern raids’, and much else, the US violated customary international law routinely and serially: ‘the overall American conduct of the war involve[d] a refusal to differentiate between combatants and noncombatants and between military and nonmilitary targets.’ 
 John Schlight, The war in South Vietnam: The years of the offensive, 1965-1968 (Office of Air Force History, 1969) War, p. 258. A bombline is ‘an imaginary line arranged, if possible, to follow well-defined geographical features, prescribed by the troop commander and coordinated with the Air Force commander, forward of which air forces are free to attack targets without danger or reference to the ground forces; behind this line all attacks must be coordinated with the appropriate troop commander’: John Pearse, ‘Air power in the kill-box: Fire support co-ordination and airspace deconfliction in the future non-linear battlespace’, Thesis, School of Advanced Air and Space Studies, Maxwell Air Force Base, 2003: p. 22.
 Schlight, War, pp. 258-9.
 Martin van Creveld, The age of airpower (New York: Public Affairs, 2011) p. 199; Robert McNamara, In retrospect: the tragedy and lessons of Vietnam (New York: Vintage, 1995) p. 243.
 McGovern’s speech was delivered on 14 December 1971 and is excerpted in ‘Automated warfare’ (January 1972) p.2, Folder 01, Box 02, Douglas Pike Collection: Unit 03 – Technology, The Vietnam Center and Archive, Texas Tech University.
 Mark Clodfelter, ‘A strategy based on faith: the enduring appeal of progressive American airpower’, Joint Forces Quarterly 49 (2008) 24-31, 150-160: 31. Clodfelter’s figure includes those wounded and killed 1965-1974, and is derived from estimates presented in Guenter Lewy, America in Vietnam (New York: Oxford University Press, 1978) p. 446. These estimates are probably conservative, and Lewy is much more reluctant to attribute these totals to ‘allied bombing’, but he does accept that the ‘lavish use of [US] firepower’ caused ‘a large number of civilian casualties’ in the South (p. 230). Despite the restrictions US bombing also caused casualties in the North: Lewy estimates around 65,000 civilians were killed, and other estimates run into the hundreds of thousands.
 Stathis Kalyvas, The logic of violence in civil wars (Cambridge: Cambridge University Press, 2006) p. 142 and passim.
 Matthew Kocher, Thomas Pepinsky and Stathis Kalyvas, ‘Aerial bombing and counterinsurgency in the Vietnam War’, American Journal of Political Science 55 (2011) 201-18: 205; Westmoreland’s remark was made in summer 1966 and is cited in David Halberstam, The best and the brightest (New York: Ballantine, 1969) p. 550, who adds: ‘The American command was aware of it was doing, and sanctioned it… MACV knew about it, it didn’t want to know too much, it would look the other way if possible, but it knew it was all going on out there.’
 Kocher, Pepinsky and Kalyvas, ‘Aerial bombing’, 203, 215. A 1968 RAND survey found that bombing increased support for the Viet Cong, but it was never released: Robert Smith, ‘Report compiled in 68 says excessive Allied bombing in South Vietnam stirred hostility to regime’, New York Times, 22 January 1970.
 ‘The most conspicuous sufferers from bombing, Germany and Japan, were unable to put their case, while the bombing specialists, the USA and the UK, had every reason for preventing the case being out’: Geoffrey Best, War and law since 1945 (Oxford: Clarendon Press, 1994) p. 115.
 Hays Parks, ‘Air war’, 65-71.
 MG George Prugh, Law at war, Vietnam 1964-1973 (Washington DC: Department of the Army, 1975) p. 89. He also conceded that there was no effective mechanism to enforce compliance.
 Frederic Borch, Judge Advocates in Vietnam: Army Lawyers in Southeast Asia, 1959-1975 (Combat Studies Institute, 2003) p. 92.
 LTC Terrie Gent, ‘The role of Judge Advocates in a Joint Air Operations Center’, Air Power Journal, Spring 1999
 My Lai was the scene of a massacre of hundreds of civilians by US troops on 16 March 1968; it was not widely reported until November 1969, and the subsequent courts-martial were not completed until March 1971. The problem was much wider and more pervasive than this focus suggests, however, and Greiner, War without fronts, p. 18, writes of an ‘endemic contempt’ for international law on the part of the US. Dunlap identifies a ‘revolution in military legal affairs’, after Vietnam, beginning in 1989 with the involvement of judge advocates in planning US military operations in Panama and becoming much more visible during the first Gulf War: Charles Dunlap. ‘The revolution in military legal affairs: Air Force legal professionals in 21st century conflicts’, Air Force Law Review 51 (2001) 293-309. Consistent with his later preoccupation with ‘lawfare’, he places particular emphasis not on advances in military technology, however, but on changes in communications technology that worked to enable media organizations to bring ‘the raw images of war’ to publics around the world ‘before leaders can censor or shape it’ (p. 294).
 Richard Falk, ‘Son My: war crimes and individual responsibility’, University of Toledo Law Review 21 (1971) 21-41:23.