Jeremy Scahill / The Intercept

The handling of the Kabul strike is an ominous sign that,
while Biden has pledged to review the drone program,
a long-standing mechanism for self-exoneration remains entrenched

(December 16, 2021) — Over the past year, the number of reported U.S. drone strikes has plummeted. President Joe Biden did not authorize a single known strike for the first six months of his presidency before breaking his streak with a series of drone attacks against al-Shabab in Somalia in July. Despite the notable reduction, at least two of the strikes conducted under Biden have killed civilians, including the now-infamous August 29 attack in Kabul, Afghanistan, that killed 10 civilians, seven of them children. While Biden’s drone strike dataset is tiny, the outcome of his known strikes presents a ghastly civilian death rate. In the case of the Afghanistan hit, 100 percent of the victims were civilians.

So what is happening? Why has Biden apparently decided to pump the brakes on a tool of war that he and President Barack Obama embraced so enthusiastically? For nearly a year, the Biden administration has been engaged in a comprehensive review of the use of drone strikes as part of a broader evaluation of “counterterrorism” policy that is expected to be completed later this year or at some point in early 2022.

“I think the White House is appropriately wary about drone strikes,” said Rosa Brooks, a former Obama administration official who worked for the Pentagon as counselor to the undersecretary of defense for policy from 2009 to 2011. “My sense is that they’re serious about the review and are trying to minimize drone strikes at least until there is complete clarity on internal policies.”

Biden’s predecessor, Donald Trump, did away with most of the “rules” the Obama administration had crafted in what Obama characterized as an effort to increase transparency, reduce civilian deaths, and establish guidelines that could give some sense of legitimacy to what was, in reality, an assassination program. Biden could have stopped at rescinding Trump’s reversals and then resumed a course of regular drone strikes according to the rules developed primarily in Obama’s second term.

But he didn’t. Instead, on the day of Biden’s inauguration, his national security adviser, Jake Sullivan, “quietly” issued an order to roll back Trump’s loosening of rulessurrounding drone strikes, specifically one that bestowed on military commanders the power to authorize such strikes in undeclared war zones, like Somalia and Yemen, without direct permission from the White House. The Biden administration has not yet indicated whether it will revert to the Obama-era guidance for strikes or craft a new policy with more robust rules, particularly surrounding the issue of civilian deaths.

“Across almost all active U.S. conflicts, we’ve seen a sharp fall in declared U.S. military actions under Joe Biden, including by drone — in Iraq, Syria, Somalia, Yemen, and Libya,” said Chris Woods, director of the British nongovernmental organization Airwars, which tracks U.S. airstrikes and civilian deaths in many nations where the U.S. is engaged militarily. Woods notes that strikes were already declining in the latter half of Trump’s presidency and that Biden’s early moratorium on strikes and his decision thus far to limit their use have greatly reduced civilian deaths at the hands of U.S. forces in several countries.

“What we don’t yet know is if these trends will sustain. Publicly, the administration has yet to articulate its strategy,” he said. “Privately, we’re hearing of the emergence of a hybrid Trump-Obama approach, which, if true, could mean less protections in place for civilians than during the latter part of Obama. That’s a worry.” A spokesperson for the National Security Council did not respond to requests for comment.

For years, a core group of mostly progressive members of Congress have steadily sought to find legislative solutions to the excessive secrecy surrounding drone strikes and to make laws requiring more transparency from the Pentagon on civilian “casualties.” These efforts, which began during Obama’s tenure, intensified under Trump, who made clear that he did not care about civilian deaths and, on the campaign trail in 2016, actively encouraged the killing of families of suspected terrorists.

They were also a response to a renewed surge, beginning in 2018, in civilian deaths in Afghanistan. “In 2019, as the Trump administration tried to force the Taliban to the negotiating table, we saw the all-time high of civilian deaths” — some 700 as a result of U.S. strikes — “and more bombs were dropped that year than in any year prior,” said Marc Garlasco, the former chief of high-value targeting at the Pentagon and now the military adviser for PAX, a Dutch civilian protection organization.

In 2019, the National Defense Authorization Act established a requirement that a senior civilian within the Department of Defense be empowered “to develop, coordinate, and oversee compliance with the policy of the Department relating to civilian casualties resulting from United States military operations.”

Among the duties of this officer would be to develop and disseminate “best practices” for reducing civilian deaths; to establish a public, internet-based mechanism for people to submit allegations of civilian harm; to ensure that standardized policies were in place for the Pentagon to acknowledge responsibility for deaths caused by U.S. military operations; and to decide whether to give “ex gratia” payments to the families of civilians killed as well as to those injured by U.S. operations. The Trump administration slow-rolled the system’s creation and never effectively implemented it.

Even before taking office, the Biden campaign had pledged to review the use of drone strikes as part of its counterterrorism approach. “During the last year, a consortium of NGOs (including PAX) advised the DoD on what steps they needed to take to improve the targeting system, create a DoD office on civilian harm, again conduct investigations, and provide amends to those harmed,” Garlasco told The Intercept via email. He and others in the human rights and civilian protection community expected an announcement to come last summer from the undersecretary of defense for policy, Colin Kahl, but it was delayed when the horrifying results of the August 29 drone strike in Kabul were brought to public light. “It has now languished on his desk as the community waits,” Garlasco said.

The defense spending bill passed by the Senate on Wednesday does contain a provision to continue the practice of making paltry payments to civilian victims and victims’ families. Garlasco cautions that while he does not expect such a framework for addressing civilian deaths and injuries “to solve all of the problems in the targeting system, I see it as a needed first step in addressing the issue of civilian harm.” But he and others in the civilian protection NGO community “are concerned it will not go far enough,” he told The Intercept, “considering the recent spate of civilian casualty incidents.”

While Garlasco and others in the legal and NGO community agitate to bring more accountability to drone operations, longtime anti-war and anti-drone activists do not hold out hope that tinkering with the system, as happened under Obama, will fundamentally change anything. “Drones in particular are an inherently indiscriminate weapon. They have no place in our world,” said Medea Benjamin, co-founder of the activist group Code Pink, who has regularly traveled to countries targeted in drone strikes.

“The U.S. should discontinue the use of armed drones and work through the U.N. for a multilateral treaty to banish them from the face of the Earth, in full recognition of U.S. responsibility for unleashing this terror on humanity. There is a campaign to abolish autonomous weapons, but this doesn’t go far enough. All drone warfare should be banned.”

At a minimum, Benjamin said, “the Biden administration should immediately restart publishing the monthly Airpower Summaries discontinued by Trump and in fact expand them from Afghanistan, Iraq, and Syria to include all U.S. ‘weapons releases’ in all countries. They should also be more comprehensive, to include all types of aircraft, including helicopters, all branches of the U.S. military, and the CIA and other agencies.”

While Benjamin and other activists have consistently focused on drones, they also recognize that drone strikes represent a small number of total U.S. airstrikes. She points to the latest statistics from Airwars, which indicate that since Biden took office, there have been 25 U.S. airstrikes in Iraq and 14 in Syria, most of them conducted by conventional aircraft, not drones.

In Somalia, according to Airwars, Biden’s 16 strikes to date have already outpaced Obama’s average of 7.5 per year, though they lag far behind Trump’s annual average of 69. “So Biden already seems to be conducting twice as many strikes as Obama did in that country, a pattern that very likely holds in other parts of Africa too,” Benjamin asserted.

Woods points out that despite the continuation of strikes, “civilian casualties are also majorly down under Biden, with none likely so far in … Libya, Yemen, or Somalia since he took office.” The exception, he says, has been Afghanistan. Woods charges that U.S. Central Command and the Air Force “continue to hide the actual numbers” of civilian deaths from U.S. strikes in Afghanistan under Biden.

“There was a well-reported surge in U.S. strikes in 2021 as the Taliban made lightning advances across the country,” he said. “Many of those were close-air support actions trying to bolster [Afghan National Army] allies on the ground — which always carry higher risks to civilians. The notorious Kabul strike in August may sadly have been part of a broader recent trend.”

That August 29 drone attack was a terrifying flashback to Obama-era cases of weddings and funerals being struck. Some analysts believe that the withdrawal of U.S. ground forces in Afghanistan may have played a role. “Drone operators did not have the benefit of intel from ground forces they had had before,” said Hugh Gusterson, a professor of anthropology and drone expert at the University of British Columbia. “U.S. drones were forced to fly longer distances from distant air bases, which reduced the amount of fuel and time they had to engage in aerial reconnaissance before striking.

” Gusterson says that this will be a factor to monitor in light of Biden’s pledge to continue such “over-the-horizon” operations in Afghanistan. “One obvious reason why there are fewer drone strikes now, I would guess, is that the U.S. has withdrawn from Afghanistan. At one point under Obama, a half of all U.S. drone strikes were in Afghanistan,” he added. “One can only think the withdrawal of U.S. ground forces in Afghanistan and the ceding of the country to the Taliban would reduce the number greatly now — even granted the U.S. interest in hitting ISIS in Afghanistan.”

Garlasco, the former Pentagon high-value targeting specialist, says that it is important to understand differences between the two main types of U.S. airstrikes: deliberate and dynamic. “Deliberate strikes are planned long in advance, have numerous checks such as a deep and structured collateral damage analysis, use a pattern of life analysis to determine if civilians are present, and have a relatively low incidence of civilian casualties,” he said. “Dynamic strikes, such as time sensitive targeting, are conducted when the attacker has a small window of opportunity to engage a mobile target of high value.”

Garlasco says that the highest-casualty strikes have resulted from “dynamic” operations that rely not on confirmed intelligence but on speculation about the movements and relationships of potential targets or, in some cases, the make and model of a car. “In a dynamic strike there is rarely time for a pattern of life analysis, structured collateral damage analysis, and all the checks that normally occur.

Additionally, dynamic strikes often suffer from confirmation bias as seen in the Kabul strike. They were looking for a white Toyota and found one and so all the actions taken by the driver fit their desired outcome. When you are looking for a target, you tend to find one.”

On Monday, the Pentagon announced that no military personnel would face disciplinary action for the Kabul drone strike. “What we saw here was a breakdown in process and execution in procedural events, not the result of negligence, not the result of misconduct, not the result of poor leadership,” said retired Rear Adm. John Kirby, the Pentagon spokesperson. “I do not anticipate there being issues of personal accountability to be had with respect to the August 29 airstrike.”

The handling of the Kabul drone strike is an ominous sign that while Biden has pledged to review the efficacy and impact of drone strikes, a long-standing mechanism for self-exoneration remains entrenched, Garlasco noted. “There is no accountability for U.S. actions,” he said.

“The sheer number of dead civilians from U.S. attacks without anything beyond a slap on the wrist reinforces the perception of impunity. … How can we see a family destroyed by a drone strike in Kabul and keep saying there was no negligence?” Garlasco said. “It is negligent to keep killing civilians after 20 years without any reforms. The long list of dead families is a damning indictment of America’s commitment to protect civilians. Without sanctions for actions that lead to civilian deaths it is difficult to see how things will get better.”

Kathy Kelly, founder of the anti-war group Voices for Creative Nonviolence, said that she welcomes the reduction in drone strikes in the broader Middle East, but she fears that it may be an artificial lull induced by other emerging Pentagon priorities. “With Pentagon officials, military contractors, and war profiteers increasingly interested in U.S. capacity to compete with China, U.S. drone attacks in Afghanistan, Yemen, Syria, and other war zones may seem like an unwelcome distraction, particularly if the international media covers the slaughter of innocents, including children,” she told The Intercept.

Kelly, who has been traveling to U.S. war zones since the 1991 Gulf War in solidarity with victims of American bombings, is also a co-coordinator of the group, Ban Killer Drones. She is calling on the administration to head off the potential spread of asymmetric warfare through diplomacy.

“I think the Biden administration should seek cooperation and collaboration with China to tackle the greatest threats we all face: the terrors of climate catastrophe and pandemics,” she said. “The U.S. should take the lead in pursuing an international treaty to prohibit weaponized drones. It should acknowledge accountability for every U.S. drone attack which has killed civilians, disclosing all details about circumstances and victims of each attack.”

Another co-coordinator at Ban Killer Drones, Nick Mottern, dismissed the notion that the drop in drone strikes is linked to any questions about morality or concern about the proliferation of armed drones. “I see no evidence that there is a pause or any fundamental appraisal of whether this program should be continued, which, of course, it should not.

This talk of pause seems to be window dressing, period,” Mottern told The Intercept. He said he is concerned that during a period of relatively few drone strikes, the administration is moving forward with long-standing plans to increase the use of artificial intelligence to facilitate drone strike targeting based on patterns of life and other automated threat determinations.

“It appears that Biden is carrying forward with development of a variety of drone aircraft that will be more and more guided by AI until we cross the threshold into full AI-controlled attacks. This process has to be stopped, and the only way to stop it is to ban weaponized drones,” he said. “The military and the politicians will never acknowledge the degree to which the control of drones has been turned over to” artificial intelligence. “China appears to be the only nation with the human and dollar resources to compete with the U.S. in this sphere,” Mottern added, “which makes these weapons even more threatening, given the U.S. compulsion to challenge China militarily.”

Independent journalist Spencer Ackerman, author of “Reign of Terror: How the 9/11 Era Destabilized America and Produced Trump,” has argued that the recent reduction in drone strikes contradicts the long-standing U.S. claim that such strikes make Americans safer. “Doesn’t the quasi-pause demonstrate the hollowness of any U.S. claim that national security requires drone strikes?

It turns out bombing random people halfway around the world doesn’t actually prevent mass American deaths,” Ackerman wrote. “[T]he Biden counterterrorism review will either take a monumental step toward actually ending the Forever Wars, or it will squander the opportunity. For all his reductions in drone strikes, Biden, particularly during the Afghanistan withdrawal, committed the typical liberal mistake of portraying drone strikes as a hedge against — that is, an alternative to — a wider war.”

Brooks, the former Obama-era Pentagon official, maintains that the Biden administration should establish an independent entity outside the executive branch to review drone strikes in countries with which the U.S. is not officially at war. “The review should be after the fact,” Brooks said, adding that such a body should take a more comprehensive “ex ante” approach to assessing potential civilian consequences of such strikes in the future.

“The reviewing body, whether judicial, congressional, or some sort of congressionally appointed body, should issue public reports,” she said. “Right now, there is still little transparency and less accountability when things go wrong, and from my perspective, that’s unacceptable.”

Garlasco agrees that an independent body needs to be established to oversee the use of drones, particularly on the question of civilian deaths. If “civilian harm” were a priority of the Biden administration, the U.S. “would conduct meaningful investigations that do not rely solely on U.S. intelligence that validates its own strikes; it would welcome reports and information from NGOs and the United Nations instead of casting aspersions on them,” he said.

“It would transparently report on airstrikes and other military actions that lead to harm; it would work to learn from its past mistakes and the clear patterns of prior strikes that have led to civilian harm and implement systemic changes to the targeting process.” Garlasco added, “Unfortunately, the U.S. is not prioritizing civilian harm.”

Kelly and Mottern say that establishing an independent body to review strikes would not go far enough and may offer a flimsy veneer of accountability. “Congress should undertake an investigation into the numbers and identities of those killed by U.S. drones since 2001 and make adequate reparations,” said Mottern. He argued that the starting point for financial compensation for victims of strikes should be the $3 million paid to the family of an Italian aid worker accidentally killed in a January 2015 U.S. drone strike.

In recent years, such payments to victims of American strikes in Iraq and Afghanistan have been minimal — in 2019, they ranged from $131 to $35,000 per incident. “The U.S. Congress earmarks $3 million annually for ex gratia payments for war victims,” said Garlasco. “In 2020 not a single dollar went to civilians harmed by the U.S. When you don’t even dole out any of a paltry $3 million set aside for victims to a single victim, that speaks volumes.

The actions of the Department of Defense tell victims your life doesn’t matter to us.” Kelly says that the process for accountability must extend beyond condolence payments to victims and their families. “The U.S. should make reparations not only through financial compensation but also in the form of dismantling the military systems causing so much suffering, displacement, and havoc,” she said.

Gusterson, author of “Drone: Remote Control Warfare,” draws a distinction between “pure” and “mixed” drone warfare. “Mixed drone warfare occurs when U.S. troops are on the ground in a declared war and drones are in the mix as one of many war-fighting technologies,” he said. “Pure drone warfare — what we see in Somalia — is when the U.S. has not declared hostilities against a country but its drones attack targets in that country out of the blue in over-the-horizon strikes.” He points out that legal experts seem to agree that “mixed” drone warfare is more defensible under international law.

“I’m an anthropologist, not a lawyer, but to me it looks very much like terrorism when you blow people up on the ground in a country you claim not to be at war with,” he told The Intercept. “I would like the Biden administration to affirm that it has decided pure drone warfare — strikes out of the blue against countries one is not at war with — is illegal under international law, and the U.S. will no longer engage in such strikes. Well, one can always dream, right?”

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