The (Un)accountable? Why critics need to be scrutinized as much as the military

In the past month Rita Siemion of Human Rights First has penned three posts over on Just Security (here, here, and here) with a common feature: a call for more transparency from the U.S. government not just about drone strikes, but the use of force generally.  Broadly speaking, I agree with her that in a democracy the public should know – and should want to know – how its military is using force in its name.

Still, I do disagree with Ms. Siemion on some of her points, including how much transparency regarding military operations is appropriate, but in this post I’d like to discuss the New York Times Magazine article which she (and others) cite to support their critiques.  I would argue that it is a good example of why many in uniform may believe that good faith efforts at transparency are futile and even counter-productive, and why it is in the interests of the ‘community’ of detractors to scrutinize the military’s critics as energetically as they do the military itself.

The article in question is by Azamat Khan and Anand Gopal and is entitled “The Uncounted.”  Ms. Siemion calls it “a disturbing account of the monumental gap between the number of acknowledged civilian casualties and the number of casualties found by the Times’ reporters.”  For their part, Khan and Gopal say their investigation:

[F]ound that one in five of the coalition strikes [they] identified resulted in civilian death, a rate more than 31 times that acknowledged by the coalition.  It is at such a distance from official claims that, in terms of civilian deaths, this may be the least transparent war in recent American history.

Let’s unpack this, starting with this question: are they “Times’ reporters” as Ms. Siemion says?  Not in the sense of that either is on the staff of the Times.  Rather, they are fellows for the New America Foundation, an organization itself recently embroiled in controversy.  Khan doesn’t claim to be a Times reporter, but rather describes herself as an “investigative reporter working to fuse righteous journalism and innovative storytelling.”

Gopal’s resume is highlighted by the fact that the Taliban allowed him to “embed” with them, and that allowed him to write a popular book (“No Good Men Among the Living”) critical of U.S. military operations in Afghanistan.  Writing in the New York Times Book Review in 2014 Kim Barker gave the book some kudos but noted:

[Gopal] also portrays the Taliban with an almost rosy hue, maybe enamored of the access he must have worked so hard to win. The Taliban are largely depicted as a groundswell of oppressed ethnic Pashtuns pushing back against a corrupt Afghan government and an invading foreign force.  Few atrocities are their fault; rather, circumstances made them do it.  The sole description of a serious Taliban massacre comes nearly three-quarters of the way through, in an account of how Talibs slaughtered a busload of Afghans on their way to find work in Iran.

Barker also took issue with Gopal’s allocation of accountability to the U.S. for then “recent brutalities” saying the “depiction is not entirely fair.”  Barker acknowledges the “United States certainly made mistakes” but adds that the “American military as a whole didn’t target civilians methodically and deliberately — unlike the Taliban, which recently stormed a hotel restaurant, shooting innocent women and children at point-blank range.”

Neither Khan nor Gopal has any military service experience, or formal education in military matters.  Khan’s educational background consists of Masters of Studies degree in Women’s Studies from Oxford University, and a B.A. from University of Michigan in Political Science and Women’s Studies.  Gopal has a Ph.D in sociology.  Neither has any discernible expertise in the complex technical challenges of civilian casualty investigations.  Ask yourself this: do Khan or Gopal have the technical expertise, let alone the apolitical disposition, to produce the sort of impartial journalism this topic needs?

So how did they support their allegations?  Khan and Gopal say they visited the sites of “nearly 150 airstrikes across northern Iraq,” and from that they concluded that “the air war has been significantly less precise than the coalition claims.”  For its part, U.S. Central Command said in its most recent “Monthly Civilian Casualty Report” (Nov. 30, 2017) that:

“The Coalition conducted a total of 28,198 strikes that included 56,976 separate engagements between August 2014 and October 2017. During this period, the total number of reports of possible civilian casualties was 1,790.  The total number of credible reports of civilian casualties during this time period was 199.  The percent of engagements that resulted in a report of possible civilian casualties was 3.14%. The percent of engagements that resulted in a credible report of civilian casualties was .35%.”

Yes, that’s right, from a sample size of just 150, Khan and Gopal extrapolated to an entire air war that thus far has involved almost 57,000 separate engagements.  Even if you believe their claims, at best they examined only .003% of the engagements.  Again, even if you believe their data, was it really fair to suggest from their tiny sample that the entire “air war” was “significantly less precise” as they claimed?  That the campaign lacked transparency?  Isn’t it vastly more likely that their data set was so minuscule that they could not legitimately opine about the whole “air war” as they did?

Where, one might ask, were the Times’ editors?  No wonder polls still show that 45% of Americans have “hardly any” confidence in the media, and that Harvard’s Shorenstein Center and, more recently, the Colombia Journalism Review, were so critical of the Times.  Are some people so anxious to be disparaging of anything related to the President – and military success would certainly fit that bill – that they’ve lost their objectivity?

In any event, Kahn and Gopal also claim that Airwars – a Britain-based organization that is highly-critical of U.S. and Coalition air operations – “estimates that up to 3,000 Iraqi civilians have been killed in coalition airstrikes — six times as many as the coalition has stated in its public summaries.”  This is misleading if not outright wrong.  Here’s what Airwars actually says:

The Coalition has so far confirmed 186 of 2,341 claimed incidents as causing 706 civilian fatalities. bIn addition 80 further civilian deaths have been confirmed in unidentified incidents.  Airwars estimates that between 961 and 1,528 or more non-combatants in fact died overall in these confirmed incidents. (Emphasis in the original.)

In other words, the difference between the coalition’s confirmed fatalities and those of Airwars may be as little as 706 persons the coalition confirms versus 961 Airwars claims.  It appears that Khan and Gopal want to exploit the fact that the coalition uses only confirmed deaths; Airwars (and, evidently, Khan and Gopal) add what they consider to be “likely” deaths to get to the number 2,843 (Airwars never uses the “3,000” figure Khan and Gopal ascribe to them).

Importantly, Airwars does not conduct investigations itself.  Instead, it says it:

[M]onitors media and social media sites in both Iraq and Syria for claims of coalition-inflicted casualties. We also collate reports from regionally-focused groups, and follow up on allegations with the coalition where possible.

In a remarkable effort at transparency from a serving U.S. military officer, U.S. Army LTG Stephen J. Townsend took issue with Airwars in a September 2017 op-ed (“Reports of Civilian Casualties in the War Against ISIS Are Vastly Inflated”) in Foreign Policy.  Townsend echoes a concern that frustrates many in the military:

“Our critics are unable to conduct the detailed assessments the Coalition does.  They arguably often rely on scant information phoned-in or posted by questionable sources.  The Coalition would be pilloried if we tried to use similar supports for our assertions.  Still, their claims are often printed as fact and rarely questioned. (Emphasis added.)”

Did Khan and Gopal at least get the law right?  Not really.  Here’s what they said:

Under international humanitarian law, it is legal for states to kill civilians in war when they are not specifically targeted, so long as “indiscriminate attacks” are not used and the number of civilian deaths is not disproportionate to the military advantage gained.

That’s misleading.  The law as set out in Article 51(5)(b) of Additional Protocol I to the Geneva Conventions (and repeated in Article 57) prohibits:

(b) an attack which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated. (Emphasis added.)

By omitting “excessive” Khan and Gopal distort the law because in a particular tactical situation civilian casualties may be disproportionate in some arithmetic sense, but not necessarily “excessive.”  Furthermore, by referencing “military advantage gained” Khan and Gopal imply that the legal assessment is retroactive.  It is a prospective standard, hence in the law the words are “military advantage anticipated.” (Emphasis added.)   You don’t judge these cases from 20-20 hindsight.

In other words, even if an attack resulted in an excessive number of civilian casualties, it would not necessarily be unlawful on that basis so long as the pre-attack assessment did not indicate excessive civilian losses relative to the reasonably anticipated military advantage.  It is hard to figure why Khan and Gopal didn’t simply cite the law except to conclude that its language didn’t fit the “storytelling” narrative they wanted to propound.

What is significant about these discrepancies for the whole issue of transparency is that Khan and Gopal were given truly extraordinary access to the military.  By their own admission, they:

“[V]isited the American air base in Qatar where the coalition directs the air campaign. There, we were given access to the main operations floor and interviewed senior commanders, intelligence officials, legal advisers and civilian-casualty assessment experts.”

Does that kind of access to military facilities and personnel really line up with Khan’s and Gopal’s claim that “this may be the least transparent war in recent American history”?  Indeed, we need to ask ourselves this: why were Khan and Gopal so dismissive of the expertise to which they had so much access (and which they themselves so profoundly lacked)?

Be that as it may, the real tragedy here is that military officials may well conclude that efforts at transparency are futile, and that too many in the media are biased against them, no matter what facts are presented.  With this experience, imagine being a public affairs officer trying to arrange another, similar visit.  Consider as well that such events are no small disruption for an operations center in the midst of an ongoing combat campaign.

What is more is who, exactly, wants more transparency than what the military is already providing?  Certainly not the American public.  Over on Lawfare, the polling project run by Ben WittesMieke Eoyang, and Ben Freeman found this week that:

The military remains the most trusted institution to protect national security… The intelligence community and the military are the only institutions in which the public has net positive confidence to protect U.S. national security.  On a scale of 1 (“No confidence”) to 5 (“High confidence”), the average score for the intelligence community is 3.04 and for the military is a whopping 3.78. Support for the military is so strong that the public is more than five times as likely to report having high confidence in the military (37 percent) as to report having no confidence in the military (7 percent). (Emphasis added.)

Others?  I am not aware of any data that shows that greater transparency from the U.S. military than is already available would change any minds.  We also shouldn’t forget that it is easy to get so wound up in the issue of civilian casualties, that the purpose of the use of force in the first place can become obfuscated.  In that respect, real battlefield success has been achieved.  Fox News reported last week:

ISIS has been routed from Iraq and Syria with an ease and speed that’s surprised even the men and women who carried out the mission. Experts say it’s a prime example of a campaign promise kept. President Trump scrapped his predecessor’s rules of engagement, which critics say hamstrung the military, and let battlefield decisions be made by the generals in the theater, and not bureaucrats in Washington.

Fox quoted various military officers to support its conclusions, including Marine Brig. Gen. Robert Sofge, who also said that the allegation that loosening rules of engagement put civilians at risk is “absolutely not true.” According to Sofge:

“We used precision strikes, and completely in accordance with international standards,” he said. “We didn’t lower that standard, not one little bit.  But we were able to exercise that precision capability without distraction and I think the results speak for themselves.”

Of course, no one (and particularly this writer) is debating that civilians are at terrible risk in today’s conflicts, or that civilian casualty investigations are difficult, complex, and can produce results that are controversial.  But unless critics are themselves scrutinized as closely as the military, the point of transparency, that is, better informed leaders and publics, will continue to be frustrated.

As we like to say on Lawfire, get the facts, assess the law, and decide for yourself!

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