Targeting war lawyers: notes from visiting scholar Craig Jones

Drone%20Protest%20at%20RAF%20Waddington%20in%20Lincolnshire

After a five-year absence, I’m back studying in the U.K. It might not feel like home anymore but its sure great to be back, and to be part of the RHUL Geography community. I’m here at RHUL for the semester and want to thank Peter Adey and the Department of Geography for hosting me as a visiting scholar while I try to wrap up the last part of my PhD research. I hope to be meeting and seeing many of you over the next few months and invite you all – whoever you are – to the talk I am giving to the department on November 19th. I’ve called it ‘The War Lawyers & The Targeting Machine’, but let me now pre-empt myself and tell you a little about the research project and the other reason why I am back in London.

I’m here (today ‘here’ is at the British Library, tomorrow ‘here’ will be in Brookwood for an interview and next week, hopefully a Royal Air Force base) to conduct the final component of my research: to try to figure out how the RAF approaches and executes its targeting missions in Afghanistan and Iraq. I have a blog – warlawspace.com – where I try to keep track of my research but for those not familiar with the project it is a multi-site investigation of the role that legal advisors and operational law play in the conduct of lethal targeting operations in the U.S Air Force, Israeli Air Force and RAF). So far my focus has been on Israel and the U.S. and for the last year or so I have been interviewing former and current legal advisors on their practical and often nail-biting role in what is a tremendously complicated and variegated targeting process. It is impossible to condense the lawyers role into a few sentences, not least because it changes from one state/air force to another and is a highly contextual practice which also varies from one operation to the next. I have written very some preliminary notes on the U.S. and Israeli cases here and here and I promise to fill in the U.K. blanks shortly.

Steven Keeva called the First Gulf War the first ‘lawyers war’, though in fact this isn’t quite correct because lawyers were involved in Panama a couple of years earlier and – albeit in a very different way – in Vietnam too, but I digress. While the last two decades have witnessed an unprecedented rise in the provision of legal advice in operational decision-making, crucial questions still remain about what military lawyers do and how they contribute to the targeting process, and I’ll get to these questions in a moment. Before asking the more theoretical questions that interest me, I have found it more useful to begin with seemingly straightforward and pragmatic questions. I use ‘seemingly’ advisedly: targeting is a very technical process and to understand the role that the lawyer plays, one first has to understand how targeting works. There is a lot of jargon; there are many different types of targeting; many different ‘phases’ and ‘rhythms’; many different rules; endless information feeds; numerous intelligence (re)sources and analyses; countless technicalities and calibrations; and, I could go on. It looks messy even on T.V. My point is that, just as the military lawyer must learn the technical specifics of military operations (and I mean everything from Rules of Engagement and ‘place-based’ knowledge to munitions and weaponeering – the science of selecting ‘appropriate’ weapons), we, as scholars and publics, too must understand how the thing gets done if we want write and think responsibly and – I hope – critically and authoritatively about the role of the lawyer in targeting and (more broadly) of the role that law plays in war. Of course, such proximity to technicality requires extra vigilance, else understanding quickly turns on empathizing and with it comes an apology for pragmatism – what Costas Douzinas once called ‘the ideology of Empire’.

Fortunately, the air forces in my study are more open and frank than is frequently assumed, and I am only repeating what my supervisor Derek Gregory first told me years ago when I say that the U.S. armed forces are prolific publishers on these matters (for the tip of the ice-berg see here). CIA and secret and classified operations are, of course, something else entirely and often so too are the RAF and Israeli Air Force. Anyhow, I am slowly reconstructing and understanding the targeting process and will be sharing any new material on my blog over the coming months. In the meantime, Derek Gregory remains our best source for a critical understanding of the kill-chain (at the very least see his ‘drones’ tab here). I should also say that targeting/military language is not the only lexicon I have had to learn – or at least have tried to learn – in this project; I am also trying my best to become conversational in law and legalese. Needless to say, one wouldn’t get very far with a military lawyer who has 30 years service under his/her belt without at least some knowledge of the relevant law. As one former military lawyer for the IDF told me, “you’d have no chance; they’d eat you for breakfast”. But as it was, one or two of the lawyers invited me to breakfast not to eat (me) but to talk, and it is through such discussions that I have been realising that – surprise surprise – the text is not the practice and that what happens in the manual is one thing; the real world of military operations and legal advice, quite another.

Having nearly completed the Israeli and U.S. components of my study I am now better placed to understand what the pertinent questions are. Now that I am in the U.K., I’ll be asking questions, which will help me to compare the different approaches taken by the U.S., Israel and the U.K. toward legal advice and targeting. The following are some tensions that have arisen thus far:

a) What is the formal and non-formal (by which I mean unspoken, implicit and de facto) role of the legal advisor?  Does s/he merely (sic) advise and leave it for the commander to decide, or has the legal advisor gained an effective veto power as to whether a strike goes ahead? Many lawyers have been reticent to admit the latter, though others have assured me that it frequently takes place and that they have been personally responsible for giving the effective final word on life and death operations.

b) Where should the lawyer be located?  Should s/he accompany troops on potentially life-threatening missions (as is common in the U.S. Army) or should s/he stay at the military base or the Air Operations Centre (AOC) (as is common in the U.S. Air Forces)? It may be surprising to some – it certainly was to me – that U.S. legal advisors die on the battlefield while on active duty. Not so in Israel, because they are not forward deployed. Yet in the halls of the military legal training school in Virginia lay memorials to fallen lawyers-cum-soldiers. One U.S. lawyer spoke of going out on multiple improvised explosion device (IED) de-activation missions as a way of gaining respect from soldiers whose daily life (and death) was marked and scarred by ‘tours’ outside of the green zone in Baghdad. There are many commentators who think lawyers have no place at what the military call the ‘tip of the spear’, but the commanders who rely on their legal advice beg to differ; to them the lawyer has been likened to a priest bringing redemption. Not quite ‘forgive me Lord that I have sinned’, but ‘advise me Lawyer so that I may not’, perhaps.

c) When should the lawyer be involved? Few in the respective military establishments now doubt that military lawyers perform an important role in operations; they provide a clear legal analysis as to whether this or that action is legal and thus serve as a safety valve for the commander who is not so sure. This may or may not be a good thing and many question whether the power to decide has not been delegated away from the commander, only to be taken-up by a lawyer who may have little experience in military operations. But the crux of the issue here is whether legal advisors should be involved only in the planning part of the targeting process, or whether they should also be involved in time-sensitive decision making where legal calls are required in seconds, not hours and days. The cartoon parable of this, which I can’t find now, is of the military lawyer, rule book in hand, running after the soldier onto the battlefield and the soldier screams back to the lawyer “can I…”

I am putting all of this (and much more) together to ask a different kind of question at once practical yet also political and philosophical: what effects do the military lawyer and operational law have on the targeting process? This Foucauldian inspired question seeks to understand the functioning of a legal practice and of certain legal experts in the production of a discourse, which we might broadly characterize as the ‘judicialization of war’. As legal questions have come, more and more, to dominate discussions about war, I think it is worth pausing to reflect on the consequences and to ask at what cost have legal questions come to the fore? The problem with law (though clearly not everyone sees it as a problem) is that it confers legitimacy and at the political level, this legal-legitimate amalgam has come to stand in for the other questions we might be asking about war; not ‘is it legal?’ but rather ‘is it right?’, or more simply, ‘why?’. Lawyers are not stupid people and modern militaries are not the buffoons they may once have been; both are attuned to and tune into how publics perceive what they do, hence why the Israeli military have become social media fanatics.  To paraphrase Foucault, and to borrow from Derek Gregory, modern militaries have become obsessed with the ‘conduct of their conduct’. This means that they are surprisingly reflective and reflexive about what they do and how it is represented. Representing war – or targeted killing – as legal provides lethal action with a skein of legitimacy, but what difference does the law make, and on what difference is international law founded? For, and at my most provocative, this is how I like to think about it: what difference does it make to the victim of a drone strike whether or not the strike was legal? The answer for a legalistic discourse of war is that many never stop to consider that there is something beyond the law.

But, as you can see, I’m still a while away from answering these questions and the U.K. case-study will surely prove to be difficult. As I begin my research here the following quote from the Legal Opinion on UK Drone use from the Public Interest Lawyers is surely sobering:

Only a little is currently known about the UK’s use of drones. The number of ‘weapons releases’ per annum has been disclosed through FOIA responses  (27 in 2008; 44 in 2009; 70 in 2010; 102 in 2011; and 120 in 2012). The percentage of weapons releases by British drones in Afghanistan is high: research suggests that 38% of drones releases in Afghanistan in 2011 were by British drones. This is extraordinary when it is considered that the UK has only a small number (c. 5) armed drones in Afghanistan, compared to over 100 US armed drones. David Cameron reportedly stated in December 2010 that UK drones had killed “more than 124 insurgents”. However, where the strikes are taking place, how they are taking place, and what deaths and injuries have resulted (whether to persons deemed ‘combatants’ or civilians) is all unknown. For example, there has been no public acknowledgement of whether drones are used solely in a combat-support role or whether they are also carrying out ‘targeted killings’: strikes on specifically targeted individuals carried out away from the battlefield. The evidence suggests that targeted killings are taking place. However, attempts to obtain this information through Freedom of Information Act (FOIA) requests and Parliamentary questions have been blocked.

Fortunately, though, I am not alone: dronewarsukReprive and The Bureau of Investigative Journalism are all tremendous resources and I’ll be drawing from them for my preparation for my interviews with the RAF.

Please do contact me with any questions or comments, or if you’d like to meet and chat about this and related issues. I’d be pleased to hear from you!

craig.jones@rhul.ac.uk

crgjones@geog.ubc.ca

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