Nadeem Malik

Tuesday, September 25, 2012

Living Under Drones

Living Under Drones

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Nadeem Malik

Death, Injury, and Trauma to Civilians From US Drone Practices in Pakistan

September 2012



EXECUTIVE SUMMARY AND RECOMMENDATIONS

In the United States, the dominant narrative about the use of drones in Pakistan is of a

surgically precise and effective tool that makes the US safer by enabling "targeted

killing" of terrorists, with minimal downsides or collateral impacts.

1

This narrative is false.

Following nine months of intensive research—including two investigations in Pakistan,

more than 130 interviews with victims, witnesses, and experts, and review of thousands

of pages of documentation and media reporting—this report presents evidence of the

damaging and counterproductive effects of current US drone strike policies. Based on

extensive interviews with Pakistanis living in the regions directly affected, as well as

humanitarian and medical workers, this report provides new and firsthand testimony

about the negative impacts US policies are having on the civilians living under drones.

Real threats to US security and to Pakistani civilians exist in the Pakistani border areas

now targeted by drones. It is crucial that the US be able to protect itself from terrorist

threats, and that the great harm caused by terrorists to Pakistani civilians be addressed.

However, in light of significant evidence of harmful impacts to Pakistani civilians and to

US interests, current policies to address terrorism through targeted killings and drone

strikes must be carefully re-evaluated.

It is essential that public debate about US policies take the negative effects of current

policies into account.

1

The US publicly describes its drone program in terms of its unprecedented ability to "distinguish ...

effectively between an al Qaeda terrorist and innocent civilians," and touts its missile-armed drones as

capable of conducting strikes with "astonishing" and "surgical" precision.

See, e.g., John O. Brennan,

Assistant to the President for Homeland Security and Counterterrorism, The Efficacy and Ethics of U.S.

Counterterrorism Strategy, Remarks at the Woodrow Wilson International Center for Scholars (Apr. 30,

2012),

available at http://www.wilsoncenter.org/event/the-efficacy-and-ethics-us-counterterrorismstrategy.

vi

First, while civilian casualties are rarely acknowledged by the US

government, there is significant evidence that US drone strikes have

injured and killed civilians.

In public statements, the US states that there have been

"no" or "single digit" civilian casualties."

2 It is difficult to obtain data on strike casualties

because of US efforts to shield the drone

program from democratic accountability,

compounded by the obstacles to

independent investigation of strikes in

North Waziristan. The best currently

available public aggregate data on drone

strikes are provided by

The Bureau of

Investigative Journalism

(TBIJ), an

independent journalist organization.

TBIJ

reports that from June 2004 through mid-

September 2012, available data indicate

that drone strikes killed 2,562-3,325 people

in Pakistan, of whom 474-881 were

civilians, including 176 children.

3 TBIJ

reports that these strikes also injured an additional 1,228-1,362 individuals. Where

media accounts do report civilian casualties, rarely is any information provided about

the victims or the communities they leave behind. This report includes the harrowing

narratives of many survivors, witnesses, and family members who provided evidence of

civilian injuries and deaths in drone strikes to our research team. It also presents

detailed accounts of three separate strikes, for which there is evidence of civilian deaths

and injuries, including a March 2011 strike on a meeting of tribal elders that killed some

40 individuals.

2

See Obama Administration Counterterrorism Strategy (C-Span television broadcast June 29, 2011),

http://www.c-spanvideo.org/program/AdministrationCo;

see also Strategic Considerations, infra

Chapter 5: Strategic Considerations; Contradictions Chart,

infra Appendix C.

3

Covert War on Terror, THE BUREAU OF INVESTIGATIVE JOURNALISM,

http://www.thebureauinvestigates.com/category/projects/drones/ (last visited Sept. 12, 2012).

From June 2004 through mid-September 2012, available data indicate that drone strikes

killed 2,562-3,325 people in Pakistan, of whom 474-881 were civilians, including 176

children.

- The Bureau of Investigative Journalism

vii

Second, US drone strike policies cause considerable and under-accountedfor

harm to the daily lives of ordinary civilians, beyond death and physical

injury.

Drones hover twenty-four hours a day over communities in northwest Pakistan,

striking homes, vehicles, and public

spaces without warning. Their

presence terrorizes men, women, and

children, giving rise to anxiety and

psychological trauma among civilian

communities. Those living under

drones have to face the constant worry

that a deadly strike may be fired at any

moment, and the knowledge that they

are powerless to protect themselves.

These fears have affected behavior.

The US practice of striking one area

multiple times, and evidence that it

has killed rescuers, makes both

community members and humanitarian workers afraid or unwilling to assist injured

victims. Some community members shy away from gathering in groups, including

important tribal dispute-resolution bodies, out of fear that they may attract the

attention of drone operators. Some parents choose to keep their children home, and

children injured or traumatized by strikes have dropped out of school. Waziris told our

researchers that the strikes have undermined cultural and religious practices related to

burial, and made family members afraid to attend funerals. In addition, families who

lost loved ones or their homes in drone strikes now struggle to support themselves.

Third, publicly available evidence that the strikes have made the US safer

overall is ambiguous at best.

The strikes have certainly killed alleged combatants

and disrupted armed actor networks. However, serious concerns about the efficacy and

counter-productive nature of drone strikes have been raised. The number of "high-level"

targets killed as a percentage of total casualties is extremely low—estimated at just 2%.

4

Furthermore, evidence suggests that US strikes have facilitated recruitment to violent

non-state armed groups, and motivated further violent attacks. As the

New York Times

has reported, "drones have replaced Guantánamo as the recruiting tool of choice for

4

Peter Bergen & Megan Braun, Drone is Obama's Weapon of Choice, CNN (Sept. 6, 2012),

http://www.cnn.com/2012/09/05/opinion/bergen-obama-drone/index.html.

Drones hover twenty-four hours a

day over communities in northwest

Pakistan, striking homes, vehicles,

and public spaces without warning.

Their presence terrorizes men,

women, and children, giving rise to

anxiety and psychological trauma

among civilian communities.

viii

militants."

5 Drone strikes have also soured many Pakistanis on cooperation with the US

and undermined US-Pakistani relations. One major study shows that 74% of Pakistanis

now consider the US an enemy.

6

Fourth, current US targeted

killings and drone strike

practices undermine respect

for the rule of law and

international legal

protections and may set

dangerous precedents.

This

report casts doubt on the legality

of strikes on individuals or

groups not linked to the terrorist attacks of September 11, 2011, and who do not pose

imminent threats to the US. The US government's failure to ensure basic transparency

and accountability in its targeted killing policies, to provide necessary details about its

targeted killing program, or adequately to set out the legal factors involved in decisions

to strike hinders necessary democratic debate about a key aspect of US foreign and

national security policy. US practices may also facilitate recourse to lethal force around

the globe by establishing dangerous precedents for other governments. As drone

manufacturers and officials successfully reduce export control barriers, and as more

countries develop lethal drone technologies, these risks increase.

In light of these concerns, this report recommends that the US conduct a

fundamental re-evaluation of current targeted killing practices, taking into

account all available evidence, the concerns of various stakeholders, and

the short and long-term costs and benefits.

A significant rethinking of current US

targeted killing and drone strike policies is long overdue. US policy-makers, and the

American public, cannot continue to ignore evidence of the civilian harm and counterproductive

impacts of US targeted killings and drone strikes in Pakistan.

5

Jo Becker & Scott Shane, Secret 'Kill List' Proves a Test of Obama's Principles and Will, N.Y. TIMES (May

29, 2012), http://www.nytimes.com/2012/05/29/world/obamas-leadership-in-war-on-alqaeda.

html?pagewanted=all.

6

PEW RESEARCH CENTER, PAKISTANI PUBLIC OPINION EVER MORE CRITICAL OF U.S.: 74% CALL AMERICA AN

E

NEMY (2012), available at http://www.pewglobal.org/files/2012/06/Pew-Global-Attitudes-Project-

Pakistan-Report-FINAL-Wednesday-June-27-2012.pdf.

The number of "high-level" targets

killed as a percentage of total

casualties is extremely low—estimated

at just 2%.

-

Peter Bergen & Megan Braun, CNN

ix

This report also supports and reiterates the calls consistently made by rights groups and

others for legality, accountability, and transparency in US drone strike policies:

O

The US should fulfill its international obligations with respect to

accountability and transparency, and ensure proper democratic debate

about key policies. The US should:

Release the US Department of Justice memoranda outlining the legal

basis for US targeted killing

in Pakistan;

Make public critical

information concerning

US drone strike policies,

including as previously

and repeatedly requested

by various groups

and officials:

7 the targeting

criteria for so-called "signature" strikes; the mechanisms in

place to ensure that targeting complies with international law; which

laws are being applied; the nature of investigations into civilian death

and injury; and mechanisms in place to track, analyze and publicly

recognize civilian casualties;

8

Ensure independent investigations into drone strike deaths, consistent with

the call made by Ben Emmerson, UN Special Rapporteur on the promotion and

protection of human rights and fundamental freedoms while countering

terrorism in August 2012;

9

7

See, e.g., Special Rapporteur on extrajudicial, summary or arbitrary executions, Study on Targeted

Killings

, Human Rights Council, UN Doc. A/HRC/14/24/Add.6 (May 28, 2010) (by Philip Alston),

available at

http://www2.ohchr.org/english/bodies/hrcouncil/docs/14session/A.HRC.14.24.Add6.pdf;

US: Transfer CIA Drone Strikes to Military

, HUMAN RIGHTS WATCH (Apr. 20, 2012),

http://www.hrw.org/news/2012/04/20/us-transfer-cia-drone-strikes-military; Letter from Amnesty

International et al. to Barack Obama, President of the United States (May 31, 2012),

available at

http://www.justforeignpolicy.org/node/1242.

8

Letter from Amnesty International et al., supra note 7.

9

Terri Judd, UN 'Should Hand Over Footage of Drone Strikes or Face UN Inquiry', INDEPENDENT (Aug.

20, 2012), http://www.independent.co.uk/news/world/asia/us-should-hand-over-footage-of-dronestrikes-

or-face-un-inquiry-8061504.html.

"We call on US policy makers to

rethink current targeted killing

practices."

- report authors

x

In conjunction with robust investigations and, where appropriate,

prosecutions, establish compensation programs

for civilians harmed by

US strikes in Pakistan.

O

The US should fulfill its international humanitarian and human rights

law obligations with respect to the use of force,

including by not using lethal

force against individuals who are not members of armed groups with whom the US is

in an armed conflict, or otherwise against individuals not posing an imminent threat

to life. This includes not double-striking targets as first responders arrive.

Journalists and media outlets should cease the common practice of

referring simply to "militant" deaths, without further explanation.

All

reporting of government accounts of "militant" deaths should include

acknowledgment that the US government counts all adult males killed by strikes

as "militants," absent exonerating evidence. Media accounts relying on

anonymous government sources should also highlight the fact of their singlesource

information and of the past record of false government reports.

1

I

NTRODUCTION

The report is divided into five chapters: Background and Context, Numbers, Living

Under Drones, Legal Analysis, and Strategic Considerations. Immediately following is a

brief account of the methodology of this study, including challenges faced by our

research team. The report then turns to the five main chapters:

'Background and Context,' Chapter 1,

provides brief background and context on:

the nature of unmanned aerial vehicles; drones and targeted killings as a response to

9/11; Obama's escalation of the drone program; the decision-making process behind

drone strikes; the Pakistani government's divided role; conflict, non-state groups, and

military forces in northwest Pakistan; the Federally Administered Tribal Areas (FATA);

and the limits on access to FATA.

'Numbers,' Chapter 2

, assesses the debate on drone casualties, outlining the factors

that produce conflicting and often unreliable reporting by government and media

sources. Examining the methods and content of three well-known and widely cited

drone data aggregators, this chapter explains what information can be gleaned from

these sources, and challenges the oversimplified civilian/"militant" binary reproduced in

many accounts.

'Living under Drones,' Chapter 3

sets forth the core findings of this report. The

Chapter begins with firsthand narrative accounts of three specific drone strikes. For

each of these strikes, there is significant evidence of civilian casualties. It further

examines the broader impacts of drone surveillance and strikes in North Waziristan,

including on the families of those killed, education and economic opportunities,

emotional trauma, widespread fear, and the undermining of community institutions.

'Legal Analysis,' Chapter 4

provides an overview of the terms of debate on the

legality of the US targeted killing program and drone campaign in Pakistan under both

international and US domestic law. It describes the law related to key issues: whether

US drone practices violate Pakistan's sovereignty; when and which individuals may

lawfully be targeted; and the extent to which the US has met, or failed to meet, its

international legal obligations related to transparency and accountability.

'Strategic Considerations,' Chapter 5

examines the strategic implications of US

drone strike policies in Pakistan. In particular, it considers available evidence about

their effectiveness in hampering attacks by armed non-state actors, their impact on

attitudes in Pakistan and the surrounding region toward the US, their geopolitical

implications, and their effect on decision-making related to war and the use of force in

the US.

2

The report includes several appendices. The first appendix provides additional

narratives from victims and witnesses to drone strikes, as well as others directly affected

by drones. The second appendix charts the timing and intensity of drone attacks

between January 2010 and June 2012 in light of parallel political events and key

moments in Pakistani-US relations. The third appendix compares statements of US

officials on drone strikes with strike data reported by a leading strike data aggregator.

M

ETHODOLOGY

This report is based on over 130 detailed interviews with victims and witnesses of drone

activity, their family members, current and former Pakistani government officials,

representatives from five major Pakistani political parties, subject matter experts,

lawyers, medical professionals, development and humanitarian workers, members of

civil society, academics, and journalists. Our research team also engaged in extensive

review of documentary sources, including: news reports; legal, historical, political,

medical, and other relevant scholarship; civil society and analysts' reports; court filings

and other legal documents; government documents; and physical evidence.

Our research team conducted two separate investigations in Pakistan (including in

Islamabad, Peshawar, Lahore, and Rawalpindi) in February-March 2012 and May

2012.

10 Investigations included interviews with 69 individuals ('experiential victims')

who were witnesses to drone strikes or surveillance, victims of strikes, or family

members of victims from North Waziristan.

11 These interviewees provided first-hand

accounts of drone strikes, and provided testimony about a range of issues, including the

missile strikes themselves, the strike sites, the victims' bodies, or a family member or

members killed or injured in the strike.

12 They also provided testimony about the

impacts of drone surveillance and attacks on their daily lives, and their views of US

policy.

10

Our researchers did not conduct in situ investigations in the drone-affected areas of FATA because of

security risks at the time of our investigations, and because the Pakistani military prevents foreigners and

non-FATA residents from accessing the region.

11

A majority of the interviewees brought school-or government-issued photo identification cards to the

interview indicating their residence in North Waziristan.

12

We have defined "close family member" as a member of the interviewee's household. In Waziri culture,

households can include grandparents, parents, siblings, and children, as well as uncles, aunts, or cousins.

3

Interviews were arranged through local contacts in Pakistan, including journalists,

lawyers, tribal leaders, experts, and civil society members. The majority of the

experiential victims interviewed were arranged with the assistance of the Foundation for

Fundamental Rights, a legal nonprofit based in Islamabad that has become the most

prominent legal advocate for drone victims in Pakistan. Those interviewees, who

undertook an extremely unsafe, time-consuming, and difficult trip in order to be

interviewed, were all male, as poor security conditions, together with cultural norms of

purda

(separation of men and women), restricted women's ability to travel. One of the

experiential victims interviewed is a female Waziri now residing outside Federally

Administered Tribal Areas (FATA). Nine of the 69 experiential victims are clients of the

Foundation for Fundamental Rights. None of the interviewees were provided

compensation for participating in investigations for this report.

13

The interviews were conducted by teams that included at least one Stanford or NYU

researcher, as well as a translator. Some interviews also included a researcher from

either Reprieve or the Foundation for Fundamental Rights. The interviews with

individual Waziris were semi-structured, and lasted from approximately thirty minutes

to two hours.

Security, confidentiality, and privacy for those interviewed were key concerns. Our

research team applied informed consent guidelines to all interviews, and interviewees

chose if or how they wished to be identified in this report. We do not include the names

and other identifying information of interviewed individuals in this report when so

requested by the person concerned, or when the research team determined that doing so

might place the individual at risk. Thus, many of the experiential victims have been

given pseudonyms in this report. All of the medical and humanitarian professionals, and

most of the journalists with whom we met, also expressed concerns for their safety, and

requested anonymity.

In addition to our interviews with medical professionals in Pakistan, medical experts at

Stanford reviewed this report's sections concerning the psychological and physiological

impacts of drones. These experts also met with our research team to discuss our findings

and assist in our analysis of the classification of symptoms.

13

The Foundation for Fundamental Rights and Reprieve organized and financed the transportation to

Islamabad and Peshawar for the majority of experiential victims. The Stanford Clinic paid for the

translation services and rental of the space used for interviewing in both Peshawar and Islamabad.

4

As part of our effort to speak with relevant stakeholders, our research team requested

the input of the US government, and sought to share our findings in advance of this

report's release. Via letter sent July 18, 2012, we requested a meeting with the National

Security Council (NSC), "the President's principal arm for coordinating [national

security and foreign] policies among various government agencies."

14 At this writing, we

had not received a response to our request.

C

HALLENGES

The foremost challenge the research team faced was the pervasive lack of US

government transparency about its targeted killing and drone policies and practices in

Pakistan. This secrecy forced us to conduct challenging primary research into the effects

of drones in Pakistan. Primary research in FATA is difficult for many reasons.

First, it is very difficult for foreigners physically to access FATA, partly due to the

Pakistani government's efforts to block access through heavily guarded checkpoints, and

partly due to serious security risks.

Second, it is very difficult for residents of Waziristan to travel out of the region. Those

we interviewed had to travel hundreds of kilometers by road to reach Islamabad or

Peshawar, in journeys that could take anywhere from eight hours to several days, and

which required passing through dozens of military and police checkpoint stops, as well

as, in some cases, traveling through active fighting between armed non-state groups and

Pakistani forces.

Third, mistrust, often justifiable, from many in FATA toward outsiders (particularly

Westerners) inhibits ready access to individuals and communities.

Fourth, many residents of FATA fear retribution from all sides–Pakistani military,

intelligence services, non-state armed groups–for speaking with outsiders about the

issues raised in this report.

14

WHITE HOUSE, NATIONAL SECURITY COUNCIL, http://www.whitehouse.gov/administration/eop/nsc (last

visited Sept. 12, 2012). We requested a meeting with US Deputy National Security Advisor Denis

McDonough.

5

Fifth, practices of

purda in FATA make it extremely difficult for women to travel, for

outsiders to speak directly to Waziri females, or to obtain information about females

through male family members. It is often considered inappropriate, for example, for

men to provide the names of female victims of drone strikes. In addition, strict

segregation can mean that neighbors or extended family members may not know how

many women and children were killed or injured in a strike.

15 Because of these obstacles

to speaking directly with women, most of the information the research team obtained

about the impacts of drones on the daily lives of women came second-hand through

husbands, sons, fathers, and in-laws, as well as by health care providers and members of

civil society working in the area. Following interactions and the building of trust

between our researchers and interviewees, a number of those interviewed expressed an

interest in facilitating interviews with female witnesses and victims in future

investigations.

Sixth, and as documented in the 'Background and Context' Chapter, FATA has very low

literacy rates. This, in conjunction with the fact that much information about incidents

in Waziristan is not recorded in written form, made it difficult for some interviewees to

pinpoint the exact dates of certain strikes or to identify in terms that could be related to

outsiders the precise geographical locations of small villages. The research team has

made extensive efforts to check information provided by interviewees against that

provided in other interviews, known general background information, other reports and

investigations, media reports, and physical evidence wherever possible. Many of the

interviewees provided victims' identification cards and some shared photographs of

victims and strike sites, or medical records documenting their injuries. We also

reviewed pieces of missile shrapnel.

15

Extended family households can be quite large; one interviewee, for instance, told us he lives in a large

extended family compound of 50-60 relatives. Interview with Ibrahim Shah, in Islamabad, Pakistan (May

9, 2012).

7

C

HAPTER 1: BACKGROUND AND CONTEXT

This section provides background and contextual information relevant to understanding

U.S drone policies in Pakistan. It provides a basic overview of what unmanned aerial

vehicles are, how the US has been using this technology as part of a broader effort to

engage in "targeted killing" of alleged enemies, and how the use of drones has

undergone a dramatic escalation under President Obama. The section also provides

some background on Pakistan's Federally Administered Tribal Areas (FATA), the area in

which most drone strikes take place, on the residents of North Waziristan who live

under drones, and on armed non-state actors and military forces in northwest Pakistan.

The US government has been using armed unmanned aerial vehicles, or drones, to carry

out hundreds of covert missile strikes in northwest Pakistan since at least June 2004.

Drone strikes now form a key part of the US government's approach to counterterrorism

and enable the US to kill from afar without immediate risk to American lives. For years,

the government would neither confirm nor deny the existence of the strikes, and only

began to outline the practices and legal justifications following significant pressure from

domestic and international civil society.

16 To date, the government has refused to

provide necessary details on how the program works, how targets are chosen, or how

legality and accountability are ensured, leading civil society groups repeatedly to request

this information.

17 Instead, the government insists that the killings are lawful, and that

16

Covert War on Terror—The Data, THE BUREAU OF INVESTIGATIVE JOURNALISM,

http://www.thebureauinvestigates.com/2011/08/10/the-bush-years-2004-2009/ (last visited Aug. 8,

2012). Obama acknowledged that the US was using drones to target suspected terrorists in FATA in an

online video chat on January 31, 2012.

See President Obama's Google+ Hangout, WHITEHOUSE.GOV (Jan.

30, 2012), http://www.whitehouse.gov/photos-and-video/video/2012/01/30/president-obama-s-googlehangout.

More recently, his top counterterrorism advisor, John Brennan, discussed drone strikes, as well

as counterterrorism policies in Pakistan, in a speech at the Woodrow Wilson International Center.

See

John O. Brennan, Assistant to the President for Homeland Security and Counterterrorism, The Efficacy

and Ethics of US Counterterrorism Strategy, Remarks at the Woodrow Wilson International Center for

Scholars (Apr. 30, 2012),

available at http://www.wilsoncenter.org/event/the-efficacy-and-ethics-uscounterterrorism-

strategy.

17

See supra note 16 and accompanying text; Letter from Amnesty International et al. to Barack Obama,

President of the United States (May 31, 2012),

available at http://www.justforeignpolicy.org/node/1242.

Letter from Amnesty International et al. to Barack Obama, President of the United States (May 31, 2012),

available at

http://www.justforeignpolicy.org/node/1242 (requesting that information be released to

Congress concerning "US drone use, including targeting criteria for signature strikes; mechanisms used

by the CIA and JSOC to ensure that such targeting is within the confines of international law, including

which laws are being applied to these cases and definitions of a civilian; the procedure in place for

investigations when civilians are known to have suffered losses of life, limb or property as a result of

strikes; and mechanisms in place to track, analyze and public recognize civilian casualties.").

8

virtually all of those targeted are linked to Al Qaeda and associated forces and pose a

threat to US national security.

18 Recently, anonymous government officials have

revealed that, for the purpose of tracking civilian casualties, the government presumes

that all military-age males killed in drone strikes are combatants.

19

D

RONES: AN OVERVIEW

According to the US Department of Defense, a drone, or unmanned aircraft, is an

"aircraft or balloon that does not carry a human operator and is capable of flight under

remote control or autonomous programming."

20 Although drones have only recently

become the subject of significant public debate, they are not new, and their origins can

be traced at least to World War I.

21 Throughout the twentieth century, however, they

were used primarily for surveillance, most notably during the Gulf War and the conflict

in the Balkans in the 1990s.

22 The first armed drones were flown in Afghanistan in early

October 2001.

23 Since then, the US has increased its arsenal of Predator drones from 167

in 2002 to more than 7,000 today.

24

18

See, e.g., Brennan, supra note 16; President Obama's Google+ Hangout, supra note 16; see also Ken

Dilanian,

US Put New Restrictions on CIA Drone Strikes in Pakistan, L.A. TIMES (Nov. 7, 2011),

http://articles.latimes.com/2011/nov/07/world/la-fg-cia-drones-20111108; Justin Elliott,

Obama

Administration's Drone Death Figures Don't Add Up

, PROPUBLICA (June 18, 2012),

http://www.propublica.org/article/obama-drone-death-figures-dont-add-up.

19

Jo Becker & Scott Shane, Secret 'Kill List' Proves a Test of Obama's Principles and Will, N.Y. TIMES

(May 29, 2012), http://www.nytimes.com/2012/05/29/world/obamas-leadership-in-war-on-alqaeda.

html?pagewanted=all.

20

DEP'T OF DEFENSE, 331 JOINT PUBLICATION 1-02, DICTIONARY OF MILITARY AND ASSOCIATED TERMS (2010)

(amended July 15, 2012).

21

Time Line of UAVs, PBS, http://www.pbs.org/wgbh/nova/spiesfly/uavs.html (last visited Aug. 8, 2012).

22

See Mary Ellen O'Connell, Unlawful Killing with Combat Drones: A Case Study of Pakistan, 2004-

2009

3 (Notre Dame Law School Legal Studies Research Paper No. 09-43, 2010).

23

Eric Schmitt, Threats and Responses: The Battlefield: US Would Use Drones to Attack Targets, N.Y.

T

IMES (Nov. 6, 2002), http://www.nytimes.com/2002/11/06/world/threats-responses-battlefield-uswould-

use-drones-attack-iraqi-targets.html?pagewanted=all&src=pm.

24

Anna Mulrine, Unmanned Drone Attacks and Shape-Shifting Robots: War's Remote Control Future,

C

HRISTIAN SCIENCE MONITOR (Oct. 22, 2011),

http://www.csmonitor.com/USA/Military/2011/1022/Unmanned-drone-attacks-and-shape-shiftingrobots-

War-s-remote-control-future.

9

There are two types of lethal drones primarily now used by the US: the MQ-1B Predator

and the MQ-9 Reaper.

25 The Predator MQ-1B, first flown in 1994,26 was designed "to

provide persistent intelligence, surveillance and reconnaissance information combined

with a kill capability."

27 Equipped with AGM-114 Hellfire missiles, the Predator MQ-1B

was the world's first-ever weaponized unmanned aircraft system.

28 As P.W. Singer

writes in

Wired for War, "[a]t twenty-seven feet in length, [the Predator] is just a bit

smaller than a Cessna. . . . made of composite materials instead of metals, the Predator

weighs just 1,130 pounds. Perhaps its best quality is that it can spend some twenty-four

hours in the air, flying at heights of up to twenty-six thousand feet."

29 The MQ-9 Reaper

"is larger and more powerful than the MQ-1 Predator and is designed to prosecute timesensitive

targets with persistence and precision, and destroy or disable those targets."

30

The technical precision of these weapons has been disputed, including by companies

that developed software used in targeting.

31 One factor that reduces targeting precision

is 'latency,' the delay between movement on the ground and the arrival of the video

image via satellite to the drone pilot. As the

New York Times reported in July 2012,

"Last year senior operatives with Al Qaeda in the Arabian Peninsula told a Yemeni

reporter that if they hear an American drone overhead, they move around as much as

25

See also Spencer Ackerman, Air Force is Through With Predator Drones, WIRED (Dec. 14, 2010),

http://www.wired.com/dangerroom/2010/12/air-force-is-through-with-predator-drones/; Noah

Shachtman,

US Military Joins CIA's Drone War in Pakistan, WIRED (Dec. 10, 2009),

http://www.wired.com/dangerroom/2009/12/us-military-joins-cias-drone-war-in-pakistan/. Both the

Predator and the Reaper are manufactured by General Atomics Aeronautical Systems, Inc. For more

information, see

Aircraft Platforms, GENERAL ATOMICS AERONAUTICAL, http://www.gaasi.

com/products/aircraft/index.php (last visited Aug. 8, 2012). General Atomics refers to the original

Predator platform as the "Predator UAS," and to the Reaper platform as the "Predator B UAS."

Id.

26

Predator UAS, GENERAL ATOMICS AERONAUTICAL, http://www.gaasi.

com/products/aircraft/predator.php (last visited Aug. 8, 2012).

27

MQ-1B Predator Factsheet, UNITED STATES AIR FORCE,

http://www.af.mil/information/factsheets/factsheet.asp?fsID=122 (last visited Aug. 8, 2012).

28

Id.; see Predator UAS, supra note 26.

29

P.W. SINGER, WIRED FOR WAR 32-33 (2009).

30

MQ-9 Reaper Factsheet, UNITED STATES AIR FORCE,

http://www.af.mil/information/factsheets/factsheet.asp?id=6405 (last visited July 16, 2012).

31

Christopher Williams, CIA Used 'Illegal, Inaccurate Code to Target Kill Drones, REGISTER (Sept. 24,

2010), http://www.theregister.co.uk/2010/09/24/cia_netezza/. Intelligent Integration Systems (IIsi), the

software firm that developed the location analysis software package used in drones known as

"Geospatial", claimed in court that Netezza, the data warehousing firm that eventually sold the product to

the CIA, "illegally and hastily reverse-engineered IISi's code to deliver a version that produced locations

inaccurate by up to 13 meters. Despite knowing about the miscalculations, the CIA accepted the software,

court submissions indicate."

Id. Richard Zimmerman, IISi's CTO, stated that "my reaction was one of

stun, amazement that they want to kill people with my software that doesn't work."

Id.

10

possible."

32 Even when they are precise, however, casualties and damage are not

necessarily confined to the specific individual, vehicle, or structure targeted. The blast

radius from a Hellfire missile can extend anywhere from 15-20 meters;

33 shrapnel may

also be projected significant distances from the blast.

D

RONES AND TARGETED KILLING AS A RESPONSE TO 9/11

In the aftermath of the September 11, 2011 attacks, the Bush administration began a

campaign of 'targeted killing' against suspected members of Al Qaeda and other armed

groups.

34 The CIA allegedly carried out its first targeted drone killing in February 2002

in Afghanistan, where a strike killed three men near a former

mujahedeen base called

Zhawar Kili.

35 Some reports suggest the CIA thought one of the three men might have

been bin Laden in part due to his height.

36 When questioned in the aftermath of the

strike, however, authorities confirmed that it was not bin Laden and, instead, appeared

not to know who they had killed. A Pentagon spokeswoman stated, "[w]e're convinced

that it was an appropriate target,"

37 but added, "[w]e do not know yet exactly who it

was."

38 Another spokesman later added that there were "no initial indications that these

were innocent locals."

39 Reports since have suggested that the three individuals were

local civilians collecting scrap metal.

40

32

Mark Mazzetti, The Drone Zone, N.Y. TIMES (July 6, 2012), available at

http://www.nytimes.com/2012/07/08/magazine/the-drone-zone.html?pagewanted=all.

33

Thomas Gillespie, Katrina Laygo, Noel Rayo & Erin Garcia, Drone Bombings in the Federally

Administered Tribal Areas: Public Remote Sensing Applications for Security Monitoring

, 4 J. OF

G

EOGRAPHIC INFORMATION SYSTEM 136, 139 (2012), available at

http://www.scirp.org/journal/PaperInformation.aspx?paperID=18766.

34

Q&A: US Targeted Killings and International Law, HUMAN RIGHTS WATCH (Dec. 19, 2011),

http://www.hrw.org/news/2011/12/19/q-us-targeted-killings-and-international-law.

35

John Sifton, A Brief History of Drones, NATION (Feb. 7, 2012),

http://www.thenation.com/article/166124/brief-history-drones#.

36

Id. ("CIA observers thought they'd seen bin Laden: a tall man with long robes near Tarnek Farm, bin

Laden's erstwhile home near Kandahar. This sighting by an unarmed drone was what led to the first

arguments among the White House and CIA about arming drones with missiles.").

37

Id.

38

Id.

39

Id.

40

Id.; see Jane Mayer, The Predator War, NEW YORKER (Oct. 26, 2009), available at

http://www.newyorker.com/reporting/2009/10/26/091026fa_fact_mayer; Seymour M. Hersh,

Annals

of National Security: Manhunt

, NEW YORKER (Dec. 23, 2002), available at

http://www.newyorker.com/archive/2002/12/23/021223fa_fact.

11

Six months later, on November 3, 2002, the US took the targeted killing program to

Yemen. US officials, reportedly operating a drone from a base in Djibouti, hit and killed

six men travelling in a vehicle in an under-populated area of Yemen.

41 One of the men

was Qaed Sinan Harithi, believed to have been one of the planners of the attack on the

USS Cole in 2000.

42 In January 2003, the United Nations Special Rapporteur on

extrajudicial, summary, or arbitrary executions, concluded that the strike "constitute[d]

a clear case of extrajudicial killing."

43

Nonetheless, the strike in Yemen set the precedent for what would later become a full

scale program of targeted killing by drone in Pakistan. After the US invasion of

Afghanistan, a number of Taliban fighters fled across the border into Pakistan and in

particular FATA, which borders Afghanistan.

44 From 2002 to 2004, the US used

Predator drones to monitor this area. Then, in June 2004, the US launched a strike

against Nek Muhammad, a Pakistani Taliban commander who two months prior had

announced his support for Al Qaeda.

45 Witnesses initially reported that the missile was

fired from a drone circling overhead, but the Pakistani military denied any US

involvement, instead taking credit for the operation itself.

46 Today, this is widely

believed to have been the first US drone strike in Pakistan.

47

41

Doyle McManus, A US License to Kill, L.A. TIMES (Jan. 11, 2003),

http://articles.latimes.com/2003/jan/11/world/fg-predator11.

42

Id.

43

Special Rapporteur for extrajudicial, summary or arbitrary executions, Civil and Political Rights,

Including the Questions of Disappearances and Summary Executions

, ¶ 39, Commission on Human

Rights, UN Doc. E/CN.4/2003/3 (Jan. 13, 2003) (by Asma Jahangir),

available at

http://www.extrajudicialexecutions.org/application/media/59%20Comm%20HR%20SR%20Report%20

%28E-Cn.4-2003-3%29.pdf.

44

See Brian Glyn Williams, The CIA's Covert Predator Drone War in Pakistan, 2004-2010: The History

of an Assassination Campaign

, 33 STUDIES IN CONFLICT & TERRORISM 871, 873-74 (2010).

45

Id. at 874; see also Pir Zubair Shah, My Drone War, FOREIGN POL'Y (Mar./Apr. 2012),

http://www.foreignpolicy.com/articles/2012/02/27/my_drone_war?page=0,1.

46

David Rohde & Mohammed Khan, Ex-Fighter for Taliban Dies in Strike in Pakistan, N.Y. TIMES (June

19, 2004), http://www.nytimes.com/2004/06/19/international/asia/19STAN.html.

47

Peter Bergen & Jennifer Rowland, Drones Decimating Taliban in Pakistan, CNN (July 3, 2012),

http://www.cnn.com/2012/07/03/opinion/bergen-drones-taliban-pakistan/index.html;

see Shah, supra

note 45;

see also 2004-2007—The Year of the Drone, NEW AMERICA FOUNDATION,

http://counterterrorism.newamerica.net/drones/2007 (last visited Aug. 8, 2012);

The Bush Years:

Pakistan Strikes 2004-2009

, BUREAU OF INVESTIGATIVE JOURNALISM,

http://www.thebureauinvestigates.com/2011/08/10/the-bush-years-2004-2009/ (last visited Aug. 8,

2012).

12

P

RESIDENT OBAMA'S ESCALATION OF THE DRONE PROGRAM

When President Bush left office in January 2009, the US had carried out at least 45

drone strikes according to the New America Foundation, or 52 according to

The Bureau

of Investigative Journalism

(TBIJ), inside Pakistan.48 Since then, President Obama has

reportedly carried out more than five times that number: 292 strikes in just over three

and a half years.

49 This dramatic escalation in the US use of drones to carry out targeted

killings has brought with it escalating tensions between the US and Pakistan, as well as

continued questions about the efficacy and accuracy of such strikes.

50

"P

ERSONALITY STRIKES" AND SO-CALLED "SIGNATURE STRIKES"

A key feature of the Obama administration's use of drones has been a reported

expansion in the use of "signature" strikes. Between 2002 and 2007, the Bush

administration reportedly focused targeted killings on "personality" strikes targeting

named, allegedly high-value leaders of armed, non-state groups like Salim Sinan al

Harethi and Nek Mohammad.

51 Under Obama, the program expanded to include far

more "profile" or so-called "signature" strikes based on a "pattern of life" analysis.

52

According to US authorities, these strikes target "groups of men who bear certain

signatures, or defining characteristics associated with terrorist activity, but whose

48

Peter Bergen & Katherine Tiedemann, The Year of the Drone: An Analysis of US Drone Strikes in

Pakistan, 2004-2010,

NEW AMERICA FOUNDATION, 1 (2010), available at

http://www.newamerica.net/publications/policy/the_year_of_the_drone;

The Bush Years: Pakistan

Strikes 2004-2009

, THE BUREAU OF INVESTIGATIVE JOURNALISM, supra note 47.

49

See Covert War on Terror—The Data, supra note 16.

50

See infra Chapter 5: Strategic Considerations.

51

Leila Hudson, Colin S. Owens & Matt Flannes, Drone Warfare: Blowback from the New American

Way of War

, MIDDLE EAST POLICY (Fall 2011) (noting in the last two years of the Bush administration, "an

acceleration of attack frequency," and a much lower percentage of high-value targets killed in relation to

overall fatalities),

available at http://www.mepc.org/journal/middle-east-policy-archives/drone-warfareblowback-

new-american-way-war;

see David S. Cloud, CIA Drones Have Broader List of Targets, L.A.

T

IMES (May 5, 2010), http://articles.latimes.com/2010/may/05/world/la-fg-drone-targets-20100506.

52

Cloud, supra note 51; see Daniel Klaidman, Drones: How Obama Learned to Kill, DAILY BEAST (May

28, 2012, 1:00 AM) (excerpt from Klaidman's book K

ILL OR CAPTURE: THE WAR ON TERROR AND THE SOUL

OF THE

OBAMA PRESIDENCY, infra note 53),

http://www.thedailybeast.com/newsweek/2012/05/27/drones-the-silent-killers.html. According to

recent news reports, the CIA may have given these strikes a new name: terrorist-attack-disruption strikes

(TADS).

Id.

13

identities aren't known."

53 Just what those "defining characteristics" are has never been

made public. In 2012, the

New York Times paraphrased a view shared by several

officials that "people in an area of known terrorist activity, or found with a top Qaeda

operative, are probably up to no good."

54 The Times also reported that some in the

Obama administration joke that when the CIA sees "three guys doing jumping jacks,"

they think it is a terrorist training camp.

55

W

HO MAKES THE CALL?

On June 15, 2012, the Obama administration, in a letter to Congress, publicly

acknowledged the existence of military actions in Yemen and Somalia against

individuals alleged to be linked to Al Qaeda.

56 However, the administration has not

provided similar statements about CIA activities (including drone programs) in Pakistan

and Yemen.

57 As a result, what little public information exists about government

53

DANIEL KLAIDMAN, KILL OR CAPTURE: THE WAR ON TERROR AND THE SOUL OF THE OBAMA PRESIDENCY 41

(2012);

see also Becker & Shane, supra note 19 ("In Pakistan, Mr. Obama had approved not only

'personality' strikes aimed at named, high-value terrorists, but 'signature' strikes that targeted training

camps and suspicious compounds in areas controlled by militants.").

54

Becker & Shane, supra note 19.

55

Id.

56

Letter from Barack Obama, President of the US, to John Boehner, Speaker of the US House of

Representatives (June 15, 2012),

available at http://www.whitehouse.gov/the-pressoffice/

2012/06/15/presidential-letter-2012-war-powers-resolution-6-month-report ("In Somalia, the US

military has worked to counter the terrorist threat posed by al-Qa'ida and al-Qa'ida-associated elements

of al-Shabaab. In a limited number of cases, the US military has taken direct action in Somalia against

members of al-Qa'ida, including those who are also members of al-Shabaab, who are engaged in efforts to

carry out terrorist attacks against the US and our interests. . . . The US military has also been working

closely with the Yemeni government to operationally dismantle and ultimately eliminate the terrorist

threat posed by al-Qa'ida in the Arabian Peninsula (AQAP), the most active and dangerous affiliate of al-

Qa'ida today. Our joint efforts have resulted in direct action against a limited number of AQAP operatives

and senior leaders in that country who posed a terrorist threat to the United States and our interests.");

see also

Adam Entous, US Acknowledges Its Drone Strikes, WALL ST. J. (June 15, 2012),

http://online.wsj.com/article/SB10001424052702303410404577468981916011456.html.

57

See Entous, supra note 56. ("The Central Intelligence Agency's covert drone campaigns in Yemen and

Pakistan haven't been similarly declassified, officials said.") The language in President Obama's June 15,

2012 letter does not expressly refer to drones or UAVs in Yemen and Somalia.

See Letter from Barack

Obama,

supra note 56. However, as Entous writes, "The move effectively declassifies the existence of the

military's targeted-killing campaigns against Al Qaeda in the Arabian Peninsula in Yemen and certain Al

Qaeda and al Shabaab militants in Somalia, though without providing any details about the operations

themselves." Entous,

supra note 56; see also US Air Strike Kills Top al-Qaida Leader in Yemen,

G

UARDIAN (May 7, 2012), http://www.guardian.co.uk/world/2012/may/07/us-airstrike-kills-al-qaidaleader-

yemen ("CIA drone strike hits Fahd al-Quso.").

14

perspectives, programs, and policies has come largely through anonymous sources and

leaks in major news outlets. In May 2012, three such stories—one by the

New York

Times

,58 one by the Associated Press,59 and one by Newsweek reporter and author

Daniel Klaidman

60—revealed the most information to date about how the decision to kill

a particular target is made.

According to the

Associated Press and the New York Times, the President acts as the

final decision maker, at least with respect to the decision to carry out "personality

strikes" targeting named individuals. According to the

New York Times, early in his

presidency, "the president tightened standards, aides say: If the agency did not have a

'near certainty' that a strike would result in zero civilian deaths, Mr. Obama wanted to

decide personally whether to go ahead."

61 Newsweek reporter Daniel Klaidman noted

that, "Obama followed the CIA operations closely"

62 and that he would frequently pull

aside CIA director Leon Panetta "and ask for details about particular strikes."

63

Both the CIA and the US Special Operations Command,

64 the latter through its Joint

Special Operations Command (JSOC)—have their own target lists. Those lists are drawn

up through independent processes, but significant overlap often exists.

65 The

administration claims to have a thorough vetting process by which names are chosen. It

is unclear what, if any, process is in place for decisions regarding the so-called

"signature strikes," which are particularly problematic and open to abuse and mistake.

66

58

Becker & Shane, supra note 19.

59

Kimberly Dozier, Who Will Drones Target? Who in the US Will Decide?, ASSOCIATED PRESS (May 21,

2012), http://bigstory.ap.org/content/who-will-drones-target-who-us-will-decide.

60

Klaidman, Drones: How Obama Learned to Kill, supra note 52.

61

Becker & Shane, supra note 19.

62

Klaidman, Drones: How Obama Learned to Kill, supra note 52.

63

Id.

64

The US Special Operations Command is comprised of the Special Operations Commands of the Army,

Air Force, Navy, and Marine Corps of the US Armed Forces.

About USSOCOM, UNITED STATES SPECIAL

O

PERATIONS COMMAND, http://www.socom.mil/Pages/AboutUSSOCOM.aspx (last visited on Sept. 15,

2012).

65

Dozier, supra note 59.

66

According to anonymous officials interviewed by the New York Times, prior to May 2012, the

Department of Defense went through a vetting process for personality strikes that "paralleled" a similar

process at the CIA. Becker & Shane,

supra note 19. This vetting process involved a video conference run

by the Pentagon that included more than 100 members of the government's national security apparatus.

Id.

(The CIA's process is reported to have been "more cloistered" and focused largely on Pakistan. Id.)

Participants would examine Powerpoint slides of suspected Al Qaeda affiliates and debate their inclusion

on the target list.

Id. It could take five or six times for a name to be added, and, even then, the name would

be removed if it was decided the suspect no longer posed an "imminent threat."

Id. Any names nominated

15

These strikes target individuals or groups "who bear characteristics associated with

terrorism but whose identities aren't known."

67

P

AKISTAN'S DIVIDED ROLE 68

Pakistan-US relations are complex and complicated by continuing drone strikes.

Pakistan initially appeared to support US strikes covertly. From 2004 through at least

2007, the Pakistani government claimed responsibility for attacks that had, in fact, been

conducted by the US, thus allowing the US to deny any involvement.

69 In 2008,

according to cables released by

Wikileaks, Pakistan's Prime Minister reportedly told US

Embassy officials, "I don't care if they [conduct strikes] as long as they get the right

people. We'll protest in the National Assembly and then ignore it."

70 In 2009, both

Pakistan's Prime Minister and its Foreign Minister publicly celebrated the drone strike

that killed Baitullah Mehsud, the alleged leader of Tehreek-e-Taliban, Pakistan (TTP),

an armed group that launches terrorist attacks within Pakistan.

71

As strikes have increased, however, so too has the Pakistani public's opposition to them.

In 2011, rising opposition to the US within Pakistan was further exacerbated by three

separate events: the public shooting of two men by CIA agent Raymond Davis in

January, the May raid of Osama bin Laden's compound and his killing,

72 and the killing

of 24 Pakistani soldiers in an errant NATO airstrike in November.

73

for inclusion in the list would then be sent to President Obama for approval to be killed.

Id. On May 21,

2012, citing anonymous officials, the

Associated Press reported that this process has now changed. See

Dozier,

supra note 59. John Brennan, Obama's top counterterrorism advisor, has reportedly established a

new procedure for choosing which suspected terrorists will be targeted.

Id. Brennan's staff consults

directly with the State Department and other agencies, thereby reducing the role of the Pentagon, and

then compiles a potential target list based upon these consultations.

Id. The list is "reviewed by senior

officials" after being vetted by all counterterrorism agencies at the weekly White House meeting, and then

ultimately sent to the President for approval.

Id.

67

Klaidman, Drones: How Obama Learned to Kill, supra note 52.

68

For more on the role of Pakistani governmental authorities, see infra Chapter 4: Legal Analysis.

69

See Brian Glyn Williams, Death From the Skies: An Overview of the CIA's Drone Campaign in

Pakistan

, 29 TERRORISM MONITOR 8, 8 (2009); infra Chapter 2: Numbers.

70

US Embassy Cables: Pakistan Backs US Drone Attacks in Tribal Areas, GUARDIAN (Nov. 30, 2010),

http://www.guardian.co.uk/world/us-embassy-cables-documents/167125.

71

Shuja Nawaz, Drone Attacks Inside Pakistan—Wayang or Willing Suspension of Disbelief, 12 CONFLICT

& S

ECURITY 79, 80 (2011).

72

Recent factual revelations in a book by a former Navy Seal involved in the operation that killed bin

Laden suggest that the killing may have violated international law. According to the Navy Seal's account,

16

It is important to note that segments of the Pakistani population, including in FATA,

support drone strikes that kill terrorists. This is primarily because of the significant toll

that terrorists and armed non-state groups take on the civilian population.

74 In the

absence of other effective government action, some support military efforts to attack

and kill terrorists.

However, it is clear that the majority of the population oppose current drone practices.

A Pew Research Poll conducted in 2012 found only 17 per cent of Pakistanis favor the US

conducting "drone strikes against leaders of extremist groups, even if they are

conducted in conjunction with the Pakistani government."

75 Of those familiar with the

drone campaign, the study noted that 94 per cent of Pakistanis believe the attacks kill

too many innocent people and 74 per cent say they are not "necessary to defend

Pakistan from extremist organizations."

76 Further, particular strikes (such as those

targeting first responders), as well as the constant presence of drones overhead, have

caused significant hardships for many in FATA. Because the consequences of US drone

bin Laden was shot repeatedly in the chest, after already having been wounded. M

ARK OWEN, NO EASY

D

AY 236 (2012) ("We saw the man lying on the floor at the foot of his bed. . . . The point man's shots had

entered the right side of his head. Blood and brains spilled out of the side of his skull. In his death throes,

he was still twitching and convulsing. Another assaulter and I trained our lasers on his chest and fired

several rounds. The bullets tore into him, slamming his body into the floor until he was motionless.").

Under international humanitarian law, attacking persons who are unconscious or wounded is prohibited,

where they abstain from any hostile act.

See JEAN-MARIE HENCKAERTS & LOUISE DOSWALD-BECK,

I

NTERNATIONAL COMMITTEE OF THE RED CROSS, CUSTOMARY INTERNATIONAL HUMANITARIAN LAW: VOL. 1:

R

ULES 47 (2006); see also Kevin Jon Heller, Author of "No Easy Day" Admits to Committing A War

Crime

, OPINIO JURIS (Aug. 29, 2012, 8:05 AM), http://opiniojuris.org/2012/08/29/author-of-no-easyday-

admits-to-committing-a-war-crime/.

73

See Thousands of Pakistanis rally against US, EXPRESS TRIBUNE (Mar. 18, 2011),

http://tribune.com.pk/story/134419/political-parties-civil-society-hold-protests-against-govt/ (noting

that the release of Raymond Davis was "widely condemned among the Pakistani public and media" and

that "anti-US sentiments rose after missiles fired from an unmanned US aircraft on Wednesday" killed

civilians and police);

US Drone Strike in Pakistan; Protests Over Bin Laden, REUTERS (Mar. 6, 2011),

http://www.reuters.com/article/2011/05/06/us-binladen-pakistan-protest-idUSTRE74516H20110506

(noting outrage against the US in response to the killing of Osama bin Laden); Karl Kaltenthaler et al.,

The Drone War: Pakistani Public Attitudes Toward American Drone Strikes in Pakistan

8 (Paper

prepared for the Annual Meetings of the Midwest Political Science Association Meetings, Chicago, IL, Apr.

13-17, 2012) (describing the Salala incident as a "matter of huge public fury within Pakistan"),

available at

http://www.uakron.edu/dotAsset/4823799c-34eb-4b4f-992e-ac4a2261e0c4.pdf.

74

Interview with civil society representative in Peshawar, Pakistan (May 16, 2012); Interview with civil

society representative in Peshawar, Pakistan (May 16, 2012).

75

PEW RESEARCH CENTER, PAKISTANI PUBLIC OPINION EVER MORE CRITICAL OF US 2 (2012), available at

http://www.pewglobal.org/2012/06/27/pakistani-public-opinion-ever-more-critical-of-u-s/.

76

Id. at 13.

17

practice for those living in targeted areas have been largely omitted from coverage in the

US, this report focuses on these effects.

Opposition to drone strikes has accompanied increasingly negative perceptions of the

US. Roughly three in four now consider the US an enemy, an increase from both 2010

and 2011.

77 David Kilcullen, former Senior Counterinsurgency Advisor to General David

Petraeus, and Andrew M. Exum of the Center for a New American Security have

explained that "[p]ublic outrage at the strikes is hardly limited to the region in which

they take place . . . . Rather, the strikes are now exciting visceral opposition across a

broad spectrum of Pakistani opinion in Punjab and Sindh, the nation's two most

populous provinces."

78

Pakistani officials have been very vocal, particularly in 2012, in their opposition to

ongoing drone strikes in FATA. They have asserted that the strikes are unlawful, a

violation of Pakistan's sovereignty, and counterproductive.

79

C

ONFLICT, ARMED NON-STATE GROUPS, AND MILITARY FORCES IN NORTHWEST

P

AKISTAN

For decades, and including back at least to the Soviet occupation of Afghanistan in the

late 1970s and 1980s, northwest Pakistan has been the site of significant unrest. When

the US invaded Afghanistan in 2001, it persuaded Pakistani President Pervez Musharraf

to assist its regional counter-terrorism operations,

80 contributing to a change in FATA

dynamics.

81 Fighting in FATA intensified in the coming years as the Pakistani

77

Id. at 10.

78

David Kilcullen & Andrew McDonald Exum, Death From Above, Outrage Down Below, N.Y. TIMES

(May 17, 2009), http://www.nytimes.com/2009/05/17/opinion/17exum.html?pagewanted=all.

79

See Pakistan: Drone Strikes Are Violations of Sovereignty, REUTERS (June 4, 2012),

http://www.huffingtonpost.com/2012/06/04/pakistan-drone-strikes_n_1568016.html;

see also infra

Chapter 5: Strategic Considerations.

80

See, e.g., Tony Karon, Why Musharraf Failed, TIME (Aug. 19, 2008)(noting that, "Pakistan was forced

to support the U.S.—or at least not stand in the way of its assault on Afghanistan."),

available at

http://www.time.com/time/world/article/0,8599,1833820,00.html;

see also Daniel Schorn, Musharraf:

In the Line of Fire

, CBS NEWS: 60 MINUTES (Feb. 11, 2009)(noting that, "[t]he U.S. made it clear that [the

Pakistani government's] relationship [with the Afghan Taliban government] would have to end."),

available at

http://www.cbsnews.com/2100-18560_162-2030165.html.

81

See, e.g., SHUJA NAWAZ, CENTER FOR STRATEGIC AND INTERNATIONAL STUDIES, FATA- A MOST DANGEROUS

P

LACE 9 (2009), available at http://csis.org/files/media/csis/pubs/081218_nawaz_fata_web.pdf.

18

government scaled up military efforts to combat some of the armed non-state groups

operating in Pakistan.

82

For the past decade, violence in northwest Pakistan has involved a range of armed nonstate

actor groups, Pakistani forces, and US forces (through drones). The armed nonstate

groups reportedly operating in the region include Al Qaeda, the Quetta Shura, the

Haqqani Network, the Tehrik-i-Taliban, Pakistan (TTP), and Tehrik-i-Nifaz-i-Shariat-i-

Muhammadi (TNSM).

83 Some of these groups have been involved in attacks against

Pakistani civilians and government targets, while others have engaged in battles with US

and Afghan forces across the border in Afghanistan.

The Taliban has also attempted to control local FATA governance functions. As New

American Foundation analyst Brian Fishman has written:

Before the arrival of the Taliban in 2001. . . . [t]he government was perceived as

corrupt, [and] tribal judicial processes as unfair and too slow. The Taliban's strict

interpretation of sharia did not appeal to everyone in the tribal agencies,

but…Taliban courts resolved disputes between tribes and clans that had dragged

on for decades. The Taliban even limited corruption among some political

agents.

84

However, the methods employed by the Taliban in FATA have often been extremely

violent, and analysts have noted the ways in which they have weakened existing social

structures. As Fishman observes:

Taliban militants have systematically undermined the tribal system, which serves

as a social organizing principle and the primary system of governance in the

FATA. The most overt method has been to kill the tribal elders who serve as

interlocutors between the political agent and locals. The assassinations serve the

dual purpose of intimidating local tribes and eliminating the tenuous links

between Pakistan's central government and tribes in the FATA.

85

82

See generally A. RAUF KHAN KHATTAK, FUNDAMENTALISM, MUSHARRAF AND THE GREAT DOUBLE GAME IN

N

ORTH-WEST PAKISTAN (2011).

83

CAMPAIGN FOR INNOCENT VICTIMS IN CONFLICT, CIVILIANS IN ARMED CONFLICT: CIVILIAN HARM AND

C

ONFLICT IN NORTHWEST PAKISTAN 25 (2010), available at

http://www.civicworldwide.org/storage/civicdev/documents/civic%20pakistan%202010%20final.pdf.

84

BRIAN FISHMAN, NEW AMERICAN FOUNDATION, THE BATTLE FOR PAKISTAN: MILITANCY AND CONFLICT

A

CROSS THE FATA AND NWFP 5 (2010), available at

http://counterterrorism.newamerica.net/sites/newamerica.net/files/policydocs/fishman.pdf.

85

Id. at 6 (citations omitted); see also AMNESTY INTERNATIONAL, 'AS IF HELL FELL ON ME': THE HUMAN

R

IGHTS CRISIS IN NORTHWEST PAKISTAN 39 (2010), available at

http://www.amnesty.org/en/library/asset/ASA33/004/2010/en/1ea0b9e0-c79d-4f0f-a43d

19

As many have reported, Taliban forces have been responsible for a wide range of severe

abuses against civilians in FATA. According to the Campaign for Innocent Victims in

Conflict (CIVIC), an organization dedicated to promoting the right of civilian victims to

amends, attacks by armed non-state actors in northwest Pakistan have "directly targeted

civilians, shattering lives and spreading fear."

86 Amnesty International, in a 2010 report,

elaborated on abuses by the Taliban in FATA:

The Taleban's violent conduct quickly shocked many locals, even though many

people in northwest Pakistan adhered to conservative religious and cultural

practices…Taleban forced men to maintain long beards; wear caps; not smoke,

watch television, or listen to music; attend religious teachings; and pray five

times a day at mosque. They used violence to force women to stay inside if not

veiled, and to be accompanied by a male relative outside the home. . . . militants

began attacking military look-out posts (also known as pickets), bridges, schools,

hospitals, electricity and mobile telephone towers, markets, and shops, civilian

and military convoys, anti-Taleban tribal elders, and so-called spies.

87

While often linked by broad ideology, armed non-state groups in northwest Pakistan

differ on issues such as operational strategies and willingness to collaborate with

Pakistani authorities. The Haqqani Network and Quetta Shura, for example, have

reportedly collaborated in particular ways with the Pakistani state.

88 Other groups have

98f7739ea92e/asa330042010en.pdf ("[T]he Taleban aggressively moved to weaken the existing tribal

structure by killing or intimidating tribal elders and government officials….Taleban forces also began to

launch attacks against the government, those believed to support the government, and other political

rivals.").

86

CAMPAIGN FOR INNOCENT VICTIMS IN CONFLICT, supra note 83, at 15.

87

AMNESTY INTERNATIONAL, supra note 85, at 39; see HUMAN RIGHTS WATCH, WORLD REPORT 2012:

P

AKISTAN 1,5 (2012), available at

http://www.hrw.org/sites/default/files/related_material/pakistan_2012.pdf (noting that "[t]he Taliban

and affiliated groups targeted civilians and public spaces, including marketplaces and religious

processions," and they "regularly threaten media outlets over their coverage"); s

ee also Salman

Masood,

Pakistani Taliban kills 22 Shiites in Bus Attack, N.Y. TIMES (Aug. 16,

2012), http://www.nytimes.com/2012/08/17/world/asia/pakistani-taliban-kill-22-shiites-in-busattack.

html; Declan Walsh,

Taliban Block Vaccinations in Pakistan, N.Y. TIMES (June 18,

2012), http://www.nytimes.com/2012/06/19/world/asia/taliban-block-vaccinations-in-pakistan.html.

88

On the collaborative nature of the relationship between the Haqqani Network and the Pakistani state,

see C

OMBATING TERRORISM CENTER AT WEST POINT, HAQQANI NETWORK FINANCING: THE EVOLUTION OF AN

I

NDUSTRY (2012). On the collaborative relationship between Quetta Shura and Pakistan, see Matt

Waldman,

The Sun in the Sky: The Relationship Between Pakistan's ISI and Afghan Insurgents (LSE

Crisis States Research Centre Discussion Paper 18, June 2010),

available at

http://www2.lse.ac.uk/internationalDevelopment/research/crisisStates/download/dp/dp18%20incl%20

Dari.pdf. For a suggestion that there is a difference between full support and an effort to influence

militant organizations, see Hussein Nadim,

The Quiet Rise of the Quetta Shura, FOREIGN POL'Y (Aug. 14,

2012), http://afpak.foreignpolicy.com/posts/2012/08/14/the_quiet_rise_of_the_quetta_shura.

20

attacked Pakistani targets brutally, particularly after a high profile hostage crisis at the

Lal Masjid

, or Red Mosque.89 In July 2007, the Pakistani military stormed the mosque,

which had been occupied by an extremist cleric and thousands of followers.

90 The clash

resulted in over 100 deaths.

91

The response of the Pakistani authorities to increased militancy in FATA has involved

military engagement, interspersed with failed ceasefires and peace agreements.

92

Pakistani forces engaged in the conflict in northwest Pakistan include the federal

paramilitary force Frontier Corps (FC), the Inter-Service Intelligence Agency (ISI), and

tribal

lashkars (traditional tribal militias).93 Pakistani forces have been responsible for

severe rights abuses, particularly in the course of counterterrorism operations. These

have included extrajudicial killings and enforced disappearances, as well as complicity

in the murder of journalists.

94 Amnesty International has noted that "government forces

are also culpable of systematic and widespread human rights violations in FATA and

[the Northwest Frontier Province], both in the course of military operations and

by subjecting suspected insurgents to arbitrary arrest, enforced disappearance and

apparent extrajudicial execution."

95 According to Human Rights Watch, "[t]he

government appeared powerless to rein in the military's abuses."

96

U

NDERSTANDING THE TARGET: FATA IN CONTEXT

FATA consists of seven agencies and six Frontier Regions, and is bordered by the

Durand line and Afghanistan to the west, by Khyber Pakhtunkhwa province to the north

and east, and by Balochistan province to the south.

97

89

Fishman, supra note 84, at 3.

90

Pakistan: A Mosque Red with Blood, ECONOMIST (July 5, 2007),

http://www.economist.com/node/9435066.

91

Syed Shoaib Hasan, Profile: Islamabad's Red Mosque, BBC NEWS (July 27, 2007),

http://news.bbc.co.uk/2/hi/6503477.stm.

92

CAMPAIGN FOR INNOCENT VICTIMS IN CONFLICT, supra note 83, at 9.

93

Id.

94

HUMAN RIGHTS WATCH, supra note 87, at 1, 5.

95

AMNESTY INTERNATIONAL, supra note 85, at 49.

96

Id. at 2.

97

There are no large cities in FATA, and only 2% of the total population of Pakistan lives within the

territory. The nearest large city is Peshawar, which lies just a couple of miles outside the western border of

Khyber Agency. Islamabad is located nearly 200 km southeast of Peshawar; Lahore is just over 500 km

21

FATA:

The epicenter of the US

targeted killing program is the

FATA of Pakistan, a semiautonomous

territory approximately

the size of the state of

Maryland that runs along the

Afghanistan-Pakistan border.

98

southeast of Peshawar. The largest cities in FATA are Wana in South Waziristan, and Miranshah in North

Waziristan.

98

According to the 1998 census data, the total area of FATA is 27,220 square kilometers. Population

Demography

, GOVERNMENT OF PAKISTAN FEDERALLY ADMINISTERED TRIBAL AREA SECRETARIAT,

http://fata.gov.pk/index.php?option=com_content&view=article&id=56&Itemid=92 (last visited June 1,

2012). FATA is subject to the direct authority of the President of Pakistan.

See Administrative System,

G

OVERNMENT OF PAKISTAN FEDERALLY ADMINISTERED TRIBAL AREA SECRETARIAT,

http://fata.gov.pk/index.php?option=com_content&view=article&id=50&Itemid=84 (last visited June 1,

2012).

22

P

ASHTUN CULTURE AND SOCIAL NORMS

FATA is inhabited almost entirely by Pashtuns,

99 a group of tribes that first settled in the

area more than 1,000 years ago. The various Pashtun tribes live not only in FATA, but

also in large parts of south and east Afghanistan. Altogether, there are some 25 million

Pashtuns worldwide, making it one of the largest tribal groups in the world.

100 Because

of the shared ethnicity and porous nature of the Afghanistan-Pakistan border, Pashtuns

on either side regularly interact with each other.

101

Pashtun social life and legal norms are framed by

Pashtunwali/Pukhtunwali ("the way

of the Pashtuns"), an ethical code and "system of customary legal norms."

102 Its

fundamental principles include "[h]onour of the individual and honour of groups;

[f]ighting spirit and bravery; [e]quality and respect for seniors; [c]onsultation and

decision making; [w]illpower and sincerity; [c]ompensation and retaliation; [g]enerosity

and hospitality; [p]ride and zeal."

103

One particularly important principle of Pashtunwali is

melmastia or hospitality. Such

"hospitality whether individually or collectively expressed, is one of the major cognitive,

tangible and coherent symbols of 'Pukhtunwali' to the Pathan."

104 This concept, in turn,

is related to the principle of

nanawatey/nanawati, or asylum, sometimes defined as "to

enter into the security of a house."

105 Thus, "the defense of the guest comes under the

norm of

nanawati. . . . the guest is protected and his enemies repelled for as long as he

stays."

106 Together, the two concepts impose a high burden on Pashtuns to provide for

99

ANATOL LIEVEN, PAKISTAN: A HARD COUNTRY 383 (2011). The ethnic group is sometimes also referred to

as Pakhtun or Pathan.

100

Thomas H. Johnson and M. Chris Mason, No Sign Until the Burst of Fire, 32 INT'L SECURITY 41, 50

(2008).

101

See, e.g., Angel Rabasa, RAND CORP., UNGOVEREND TERRITORIES 5 (2008) (testimony of Angel Rabasa at

the Hearing Before the House Oversight and Government Reform Committee, S. Comm. On Nat'l Security

& Foreign Affairs, 110

th Cong.), available at

http://www.rand.org/pubs/testimonies/2008/RAND_CT299.pdf.

102

LUTZ RZEHAK, AFGHANISTAN ANALYSTS NETWORK, DOING PASHTO 3 (2011), available at http://aanafghanistan.

com/uploads/20110321LR-Pashtunwali-FINAL.pdf.

103

Id. at 2.

104

AKHBAR S. AHMED, MILLENNIUM AND CHARISMA AMONG PATHANS 59 (1976).

105

Palwasha Kakar, Tribal Law of Pashtunwali and Women's Legislative Authority 4 (Afghan Legal

History Project, Harvard Law School, 2004),

http://www.law.harvard.edu/programs/ilsp/research/kakar.pdf.

106

Id. at 4; see also David Ignatius, Afghan Reconciliation Strategy Should Reflect Pashtun Culture,

W

ASH. POST (May 16, 2010), http://www.washingtonpost.com/wpdyn/

content/article/2010/05/14/AR2010051404320.html.

23

and protect guests and those seeking asylum. The

Pashtunwali demands "the feeding of

strangers and friends, both in [sic] guest house and in the home."

107 This duty to provide

hospitality to all may create complications where it leads civilians to provide shelter to

armed non-state actors, not out of support for their cause, but to fulfill a fundamental

duty.

108

G

OVERNANCE

FATA is a territory subject to the direct authority of the Pakistani President.

109 Laws

passed by the Parliament of Pakistan have no effect in FATA unless the President so

directs,

110 and the Pakistani courts have no jurisdiction in FATA.111 Only the President of

Pakistan has the power to issue and enforce new regulations, "for the peace and good

governance" of FATA.

112 The executive's administrative role is generally limited to

overseeing development projects and punishing crime. In practice, the administration of

development in FATA is carried out primarily by the Civil Secretariat FATA, in

cooperation with the Secretariat of the Governor of the neighboring province of Khyber

Pakhtunkhwa.

113 Each of the seven FATA agencies are administered by a political agent,

who supervises federal development projects and handles inter-tribal disputes.

114

107

Kakar, supra note 105, at 4.

108

See, e.g., Rebecca Conway, The Battle Against Militancy in South Waziristan, REUTERS (June 6, 2011),

http://in.reuters.com/article/2011/06/06/idINIndia-57520420110606 ("Pashtuns are also hospitable

and protective of visitors. So persuading them to go after or hand over militants can be a daunting task.");

Honour Among Them

, ECONOMIST (DEC. 19, 2006), http://www.economist.com/node/8345531 (noting

that the Pashtun duty of

nanawatai or sanctuary requires that asylum be provided to "whoever requests

it," and relating the story of a Pashtun woman who provided such refuge to the killer of her own son).

109

Administrative System, supra note 98 ("FATA . . . remains under the direct executive authority of the

President (Articles 51, 59 and 247).").

110

Id. ( "Laws framed by the National Assembly do not apply here unless so ordered by the President.").

111

Wasseem Ahmed Shah, FCR Reform Process Should Not Stop, DAWN (Aug. 15, 2011),

http://dawn.com/2011/08/15/fcr-reform-process-should-not-stop/ ("[T]hrough Article 147 of the

Constitution, the superior courts have been barred from exercising jurisdiction in Fata.").

112

PAKISTAN CONST. art. 247.

113

Administrative System, supra note 98 ("[T]oday, FATA continues to be governed primarily through

the Frontier Crimes Regulation 1901. It is administered by Governor of the KPK in his capacity as agent to

the President of Pakistan, under the overall supervision of the Ministry of States and Frontier Regions in

Islamabad." (citation omitted)).

114

LIEVEN, supra note 99, at 382.

24

The most important legal and social institution for the resolution of community conflicts

in FATA is the

jirga, a decision-making assembly of male elders.115 Jirgas can vary in

formality, but in essence they are group discussions in which community problems are

resolved, and legal issues addressed.

116 The jirga system is based on Pashtun

conceptions of justice, community input, and effective administration of local affairs.

117

Frontier Crimes Regulation (FCR), a system of laws applicable only to FATA,

institutionalizes both the Pashtun tribes' traditional reliance on the

jirga as the primary

mechanism for dispute resolution, and the British

maliki patronage system used to

subjugate the tribes. Under FCR, individual residents can bring disputes before selected

tribal elders called

maliki (singular: malik), who settle disputes in a jirga according to

Pashtun codes.

118 Importantly, a malik is the liaison elder selected by the government,

not necessarily the most authoritative elder in the tribe. Much police work is entrusted

to

khassadars, government employees administered at the local level by maliks,119 who

serve as a locally recruited auxiliary police force.

120

The political agent in each FATA agency has funding and broad powers to "secure the

loyalty of influential elements in the area," i.e. by providing the

malik with "hospitality"

allowances in exchange for furthering the government's agendas.

121

115

See SHERZAMAN TAIZI, JIRGA SYSTEM IN TRIBAL LIFE (2007), available at

http://www.tribalanalysiscenter.com/PDF-TAC/Jirga%20System%20in%20Tribal%20Life.pdf; H

ASSAN

M. Y

OUSUFZAI & ALI GOHAR, TOWARDS UNDERSTANDING PUKHTOON JIRGA (2005), available at

http://peace.fresno.edu/docs/Pukhtoon_Jirga.pdf;

see also infra Chapter 3: Living Under Drones.

116

See LUTZ RZEHAK, AFGHANISTAN ANALYSTS NETWORK, DOING PASHTO 14 (2011), available at http://aanafghanistan.

com/uploads/20110321LR-Pashtunwali-FINAL.pdf; T

AIZI, supra note 115; YOUSUFZAI &

G

OHAR, supra note 115.

117

See generally RZEHAK, surpa note 116; TAIZI, supra note 115; YOUSUFZAI & GOHAR, supra note 115.

118

Administrative System, supra note 98 ("[J]irga and Maliki systems are strong and powerful local

institutions for the reconciliation and resolution of local disputes and even to punish those who violate the

local rules and customs.").

119

IMTIAZ GUL, THE MOST DANGEROUS PLACE: PAKISTAN'S LAWLESS FRONTIER 49 (2010).

120

LIEVEN, supra note 99, at 455.

121

Anita Joshua, Pakistan: Undoing a Colonial Legacy, HINDU (Sept. 5, 2011),

http://www.thehindu.com/opinion/lead/article2427237.ece. Reforms to FCR enacted in August 2011

included some increased scrutiny of the use of funds by political agents, but it will likely only affect the

most egregious incidents of bribery. Under the Pashtunwali code, hospitality is a legitimate and vitally

necessary element of the

jirga. See Nasir Iqbal, Major Changes Made in FCR: FATA People Get Political

Rights

, DAWN (Aug. 13, 2011), http://dawn.com/2011/08/13/major-changes-made-in-fcr-fata-people-getpolitical-

rights/.

25

E

CONOMY AND HOUSEHOLDS

FATA suffers from one of highest poverty rates in the world. The per capita income is

approximately US$250 per year, with 60 percent of the population living below the

national poverty line.

122 Undeveloped infrastructure and low per capita public

development expenditure have resulted in an overall literacy rate of only 17 percent.

Most of the population depends on subsistence agriculture, manual labor, small-scale

local business, or remittances from relatives working abroad or in other regions of

Pakistan for survival.

123 In North Waziristan, chromite mining operations also provide

limited contract jobs near the Afghan border.

124 There are only 41 hospitals in the

region,

125 and an estimated one doctor for every 6,762 residents.126

In North Waziristan, extended families often live together in compounds that contain

several homes, often constructed with mud.

127 Most compounds include a hujra, which

is the main gathering room for men and the area in which male family members

entertain visitors.

128 The hujra is often in close proximity to buildings reserved

exclusively for women and children. As a result, the shrapnel and resulting blast of a

missile strike on a

hujra can and has killed and injured women and children in these

nearby structures.

129

122

UNITED STATES GOVERNMENT ACCOUNTABILITY OFFICE, COMBATING TERRORISM: THE UNITED STATES

L

ACKS COMPREHENSIVE PLAN TO DESTROY THE TERRORIST THREAT AND CLOSE THE SAFE HAVEN IN PAKISTAN'S

F

EDERALLY ADMINISTERED TRIBAL AREAS (2008), available at

http://www.gpo.gov/fdsys/pkg/GAOREPORTS-GAO-08-622/pdf/GAOREPORTS-GAO-08-622.pdf.

123

See id.; Economy and Livelihood, GOVERNMENT OF PAKISTAN FEDERALLY ADMINISTERED TRIBAL AREA

S

ECRETARIAT, http://fata.gov.pk/index.php?option=com_content&view=article&id=54&Itemid=90 (last

visited July 16, 2012).

124

See Economy and Livelihood, supra note 123; Department of Minerals, GOVERNMENT OF PAKISTAN

F

EDERALLY ADMINISTERED TRIBAL AREA,

http://fata.gov.pk/index.php?option=com_content&view=article&id=54&Itemid=90 (last visited July 16,

2012).

125

UNITED STATES GOVERNMENT ACCOUNTABILITY OFFICE, supra note 122.

126

Id.

127

Interview with Noor Behram in Islamabad, Pakistan (Mar. 9, 2012); Interview with Dawood Ishaq

(anonymized name) in Islamabad, Pakistan (Mar. 8, 2012).

128

Tribal and Ethnic Diversity, GOVERNMENT OF PAKISTAN FEDERALLY ADMINISTERED TRIBAL AREA

S

ECRETARIAT, http://fata.gov.pk/index.php?option=com_content&view=article&id=53&Itemid=87.

129

See JAMES H. STUHMILLER, BORDEN INSTITUTE, BLAST INJURY: TRANSLATING RESEARCH INTO

O

PERATIONAL MEDICINE (2008), available at

http://www.bordeninstitute.army.mil/other_pub/blast/Blast_monograph.pdf;

see also Interview with

Ejaz Ahmad, in Islamabad, Pakistan (Mar. 2, 2012) (describing how the January 23, 2009 strike on his

relatives "destroyed the entire house—it destroyed the

hujra and the house was badly damaged. . . .

26

A

CCESSING FATA

While FATA has been termed "the most dangerous place,"

130 few outside the region have

a thorough understanding of life in the area. Citing security concerns, the Pakistani

military has barred not only the media and virtually all international organizations from

entering the region, but also most Pakistani nongovernmental organizations (NGOs)

and non-FATA-resident Pakistani citizens.

131 While outsiders cannot get in, neither can

residents easily get out. Residents are regularly subjected to extended and unplanned

curfews that limit their mobility,

132 in some cases even preventing them from getting

appropriate medical care,

133 or holding funerals for loved ones who have been killed.134

When the curfews are lifted, travel within and outside of the region is hampered by

armed non-state actor activity, and a network of military and civilian checkpoints that

subject residents to intense interrogation and harassment.

135 Trips that would normally

take only a few hours can take days, or travelers may be turned back before they reach

their destination.

136

The barriers to information are more than just physical. Journalists trying to report on

the situation in FATA are subject to threats and pressure from the local administration,

security forces, and militants, all of whom have an interest in controlling the

[T]here was [a child] in the

hujra as well."); Interview with Rashid Salman (anonymized name) in

Islamabad, Pakistan (Feb. 26, 2012) ("The attack was on a

hujra . . . there were women and children

nearby. . . . Women, children, and men [died] . . .").

130

This characterization forms the title of a book on FATA by Imtiaz Gul. GUL, supra note 119.

131

In rare instances, the Pakistani military does take prominent international journalists on one-day visits

to the region. During such visits, access is restricted to pre-determined areas and journalists are under

constant supervision, ostensibly for their own safety.

See Interview with G.Z., journalist with major

western news source (anonymized initials), in Islamabad, Pakistan (Mar. 7, 2012); Interview with K.N.,

journalist with major western news source (anonymized initials), in Islamabad, Pakistan (Mar. 5, 2012).

132

See INTERNATIONAL CRISIS GROUP, PAKISTAN: COUNTERING MILITANCY IN FATA 9 (2009), available at

http://www.crisisgroup.org/~/media/Files/asia/southasia/

pakistan/178_pakistan___countering_militancy_in_fata.pdf. Our team had firsthand experience

with the effects of curfews on mobility in FATA, as more than a dozen interviewees for this report were

delayed by three days due to an unexpected curfew and reported fighting between the Taliban and

Pakistani forces.

133

Zulfiqar Ali & Muhammad Irfan, Measles Surge: North Waziristan Tribesmen Face Double Whammy,

E

XPRESS TRIBUNE (May 13, 2012), http://tribune.com.pk/story/377965/measles-surge-north-waziristantribesmen-

face-double-whammy/ (quoting Azmat Khan Dawar, a resident of Shahzad Kot in Datta Khel

sub-district of North Waziristan, as saying: "despite the deteriorating condition of my [two-year old]

daughter [who had measles], I was unable to take her to the hospital due to a curfew.").

134

See INTERNATIONAL CRISIS GROUP, supra note 132, at 9.

135

Id.

136

For a discussion of how these challenges affected our research, see infra Methodology section.

27

information reported.

137 Residents of FATA and professionals who live there, including

doctors and humanitarian workers, also live in fear of violence from Pakistani,

American, and Taliban forces.

138 High-profile stories of Taliban retaliation against

individuals suspected of spying for the US have generated widespread suspicion

throughout Waziri communities. Most recently, in February 2012, the Taliban

reportedly beheaded a 70-year-old baker suspected of spying for the US.

139 Earlier, in

2009, Taliban forces reportedly executed 19-year old Habibur Rehman for allegedly

dropping US-provided "transmitter chips" at local Taliban and Al Qaeda houses,

signaling specific targets for CIA drone strikes.

140 In a videotaped "confession," Rehman

admitted to "throwing the chips all over" because the money was so good.

141 The story

bred fear and suspicion throughout Waziristan, where residents are "gripped by rumors

that paid CIA informants have been planting tiny silicon-chip homing devices" that

attract the drones.

142 Many of the Waziris we interviewed spoke of a constant fear of

being tagged with a chip by a neighbor or someone else who works for either Pakistan or

the US, and of the fear of being falsely accused of spying by local Taliban.

143

137

See, e.g., Amirza Afridi, FATA Journalists: The Forgotten Scribes of a Secret War, EXPRESS TRIBUNE

(Sept. 10, 2011), http://tribune.com.pk/story/249142/fata-journalists-the-forgotten-scribes-of-a-secretwar/;

Ikram Junaidi,

FATA Journalists on Razor's Edge, DAWN (Mar. 1, 2012),

http://dawn.com/2012/03/01/fata-journalists-on-razors-edge/ ("President [of the] Tribal Union of

Journalists Safdar Hayat Dawar . . . alleged that both the military and Taliban forced mediapersons to file

stories of their choice, adding [that] both didn't care about human rights."); Rahimullah Yusufzai,

Pakistani Journalists Under Siege

, NEWSLINE (Feb. 29, 2012),

http://www.newslinemagazine.com/2012/02/pakistani-journalists-under-siege/.

138

See, e.g., Interviews with Medical Professionals in Pakistan (2012); see also Interview with Marwan

Aleem (anonymized name) in Islamabad, Pakistan (Feb. 26, 2012); Interview with Umar Ashraf

(anonymized name) in Islamabad, Pakistan (Mar. 9, 2012); Interview with Ismail Hussain in Islamabad,

Pakistan (Feb. 26, 2012); Interview with Umar Ashraf (anonymized name) in Islamabad, Pakistan (Mar.

9, 2012).

139

M. Ibrahim, Tribesmen Condemn Taliban Killing of 70-Year-Old Baker, CENTRAL ASIA ONLINE (Feb.

21, 2012),

http://centralasiaonline.com/en_GB/articles/caii/features/pakistan/main/2012/02/21/feature-01.

140

Carol Grisanti & Mushtaq Yusufzai, Taliban-Style Justice for Alleged US Spies, MSNBC (Apr. 17,

2009), http://worldblog.nbcnews.com/_news/2009/04/17/4376383-taliban-style-justice-for-alleged-usspies?

lite.

141

Id.

142

See, e.g., Jane Mayer, supra note 40; see also infra Chapter 3: Living Under Drones.

143

Interview with Umar Ashraf (anonymized name) in Islamabad, Pakistan (2012); Interview with Khalil

Arshad (anonymized name), in Islamabad, Pakistan (Mar. 9, 2012); Interview with Hayatullah Ayoub

(anonymized name) in Islamabad, Pakistan (Mar. 2, 2012); Interview with Noor Behram in Islamabad,

Pakistan (Mar. 9, 2012); Interview with Ismail Hussain (anonymized name) in Islamabad, Pakistan (Feb.

26, 2012); Interview with Mahmood Muhammad (anonymized name), and Sameer Rahman (anonymized

28

name) in Islamabad, Pakistan (Feb. 29, 2012); Interview with Najeeb Saaqib (anonymized name) in

Islamabad, Pakistan (Feb. 26, 2012).

29

C

HAPTER 2: NUMBERS

US officials rarely mention civilian casualties by US drone strikes. When they do, they

generally offer extremely low estimates in the "single digits."

144 It is very difficult–given

the opaqueness of the US government about its targeted killing program, and the

obstacles currently faced by independent observers investigating on the ground–to

determine precisely the total number of individuals killed, let alone the number of

civilians who have been killed or injured in drone strikes in Pakistan. Yet the numbers of

civilians killed are undoubtedly far higher than the few claimed by US officials.

At the same time, however, given the military effect of drone strikes themselves, as well

as the political impact caused by reports of civilian deaths from drone strikes in

Pakistan, the Taliban and other armed groups have an interest in exaggerating civilian

casualty figures.

145 Caution, therefore, must be exercised around all claims, and

underlying sources must be scrutinized. It should also be noted that such concerns

about both exaggeration and under-counting are not unique to the drone strike context,

and are present in many conflict and government use of force contexts around the

world.

This section aims to account for the contradictory claims made about drone casualties,

and to explain the obstacles to certainty about who has been or is being killed by the US.

First, we consider the concerning implications of reducing all casualties to an

oversimplified civilian/"militant" binary, as most government and media sources do. We

then examine the biases and demonstrated unreliability of government accounts of

drone strikes, and explain the various factors that produce conflicting and often

unreliable reporting by major media outlets. Lastly, we detail the methods and content

of the three most well-known and widely cited strike data aggregators—

The Long War

Journal

, New American Foundation, and The Bureau of Investigative Journalism

(

TBIJ)–and outline why TBIJ's data currently constitute the most reliable available

source.

144

Jo Becker & Scott Shane, Secret 'Kill List' Proves a Test of Obama's Principles and Will, N.Y. TIMES

(May 29, 2012), http://www.nytimes.com/2012/05/29/world/obamas-leadership-in-war-on-alqaeda.

html?pagewanted=all;

see also infra note 156.

145

See David Rohde, The Drone War, REUTERS (Jan. 26, 2012),

http://www.reuters.com/article/2012/01/26/us-david-rohde-drone-wars-idUSTRE80P11I20120126

(observing, in the context of Afghanistan and Pakistan, that "militants use exaggerated reports of civilian

deaths to recruit volunteers and stoke anti-Americanism").

30

T

ERMINOLOGY

Major media outlets in the US, Europe, and Pakistan that report on drone strikes tend to

divide all those killed by drone strikes into just two categories: civilians or "militants."

This reflects and reinforces a widespread assumption and misunderstanding that all

"militants" are legitimate targets for the use of lethal force, and that any strike against a

"militant" is lawful. This binary distinction, in turn, feeds the political discourse around

drone warfare, enabling commentators and analysts to make sweeping claims about the

program's efficacy and accuracy. The civilian/"militant" distinction is extremely

problematic, however, from a legal perspective, and also because of the questionable

reliability of the information on which "militant" determinations are based.

First, in most coverage of drone strike casualties, "militant" is never defined. The term's

use often implies to the reader that the killing of that person was lawful. The frequent

use of the word "militant" to describe individuals killed by drones often obscures

whether those killed are in fact lawful targets under the international legal regime

governing the US operations in Pakistan. It is not necessarily the case that any person

who might be described as a "militant" can be lawfully intentionally killed. As discussed

in the Legal Analysis section, Chapter 4,

146 in order for an intentional lethal targeting to

be lawful, a fundamental set of legal tests must be satisfied. For example, depending on

the applicable legal framework (but at the very minimum): the targeted individual must

either be directly participating in hostilities with the US (international humanitarian

law) or posing an imminent threat that only lethal force can prevent (international

human rights law). Thus, for instance, members of militant groups with which the US is

not in an armed conflict are not lawful targets, absent additional circumstances (such as

evidence that lethal force against that person is proportionate and necessary). Further,

simply being suspected of some connection to a "militant" organization—or, under the

current administration's apparent definition, simply being a male of military age in an

area where "militant" organizations are believed to operate

147–is not alone sufficient to

make someone a permissible target for killing.

148 Failure by government and media

146

See infra Chapter 4: Legal Analysis.

147

Becker & Shane, supra note 144.

148

Philip Alston, the former United Nations Special Rapporteur on extrajudicial, summary, or arbitrary

executions, has explained that a person who merely engages in "political advocacy, supplying food or

shelter, or economic support or propaganda" for Al Qaeda or its affiliates is not a legitimate target under

international humanitarian or human rights law, because such conduct does not rise to the level of direct

participation in hostilities. Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions,

Study

on Targeted Killing

, ¶ 57-69, Human Rights Council, UN Doc A/HRC/14/24/Add.6 (May 28, 2010) (by

Philip Alston);

see also infra Chapter 4: Legal Analysis.

31

sources to provide any additional details about most of those killed often makes it

difficult to assess the legality of any particular attack.

Second, the label "militant" also fails to distinguish between so-called "high-value"

targets with alleged leadership roles in Al Qaeda or anti-US Taliban factions, and lowlevel

alleged insurgents with no apparent access or means of posing a serious or

imminent threat to the US. National security analysts—and the White House itself—

have found that the vast majority of those killed in drone strikes in Pakistan have been

low-level alleged militants.

149 Based on conversations with unnamed US officials, a

Reuters

journalist reported in 2010 that of the 500 "militants" the CIA believed it had

killed since 2008, only 14 were "top-tier militant targets," and 25 were "mid-to-highlevel

organizers" of Al Qaeda, the Taliban, or other hostile groups.

150 His analysis found

that "the C.I.A. [had] killed around 12 times more low-level fighters than mid-to-highlevel"

during that same period.

151 More recently, Peter Bergen and Megan Braun of the

New America Foundation reported that fewer than 13% of drone strikes carried out

under Obama have killed a "militant leader."

152 Bergen and Braun also reported that

since 2004, some 49 "militant leaders" have been killed in drone strikes, constituting

"2% of all drone-related fatalities."

153

Third, major media outlets, the main source for public information on drone strikes,

typically cite to "anonymous officials"

154 (generally from Pakistan) for the claim that a

certain number of those killed were "militants."

155 Often, little to no information is

presented to support the claim. And, it is entirely unclear what, if any, investigations are

carried out by the Pakistani or US governments to determine who and how many people

were killed. It is these media reports that are typically compiled by drone strike data

aggregators and become the basis for statistical claims about the US drone program.

149

Adam Entous, Special Report: How the White House Learned to Love the Drone, REUTERS (May 18,

2010), http://www.reuters.com/article/2010/05/18/us-pakistan-drones-idUSTRE64H5SL20100518;

see

Peter Bergen & Jennifer Rowland,

CIA Drone War in Pakistan in Sharp Decline, CNN (Mar. 28, 2012),

http://www.cnn.com/2012/03/27/opinion/bergen-drone-decline/index.html.

150

Entous, supra note 149.

151

Id.

152

Peter Bergen & Megan Braun, Drone is Obama's Weapon of Choice, CNN (Sept. 6, 2012),

http://www.cnn.com/2012/09/05/opinion/bergen-obama-drone/index.html.

153

Id.

154

See infra notes 241-269 and accompanying text.

155

See infra note 187 and accompanying text.

32

U

NDERREPORTING OF CIVILIAN CASUALTIES BY US GOVERNMENT SOURCES

While western media outlets are generally quick to report official US accounts of drone

strikes and their attendant casualties, those government sources have proved to be

unreliable. Civilian death toll figures cited by the Obama administration during the last

few years have been so low

156 that even the most conservative nongovernmental civilian

casualty estimates—including those released by think tanks such as the Foundation for

Defense of Democracies

157 and the Jamestown Foundation158—contradict the

administration's claims.

159 Most recently, officials in the Obama administration asserted

that civilian casualties in Pakistan have been "exceedingly rare,"

160 perhaps even in the

"single digits" since Obama took office.

161 These estimates are far lower than media

reports, eyewitness accounts, and the US government's own anonymous leaks

suggest.

162

156

Most notably, the President's top counterterrorism advisor, John O. Brennan, claimed in June 2011

that the US had not killed a single civilian since August 23, 2010.

See Obama Administration

Counterterrorism Strategy

(C-Span television broadcast June 29, 2011), http://www.cspanvideo.

org/program/AdministrationCo;

see also Chris Woods, US Claims of 'No Civilian Deaths' are

Untrue

, THE BUREAU OF INVESTIGATIVE JOURNALISM (July 18, 2011),

http://www.thebureauinvestigates.com/2011/07/18/washingtons-untrue-claims-no-civilian-deaths-inpakistan-

drone-strikes/.

157

The Long War Journal, a project of the Foundation for Defense of Democracies, claims that drones

have caused 138 civilian deaths since 2006. Bill Roggio & Alexander Mayer,

Charting the Data for US

Airstrikes in Pakistan, 2004—2012

, LONG WAR JOURNAL, http://www.longwarjournal.org/pakistanstrikes.

php (last updated Sept. 16, 2012). Bill Roggio, the

Long War Journal's managing editor, was

quoted in 2011 as saying "the C.I.A.'s claim of zero civilian casualties in a year is absurd." Scott Shane,

C.I.A. is Disputed on Civilian Toll in Drone Strikes

, N.Y. TIMES (Aug. 11, 2011),

http://www.nytimes.com/2011/08/12/world/asia/12drones.html?pagewanted=all.

158

A study released by the Jamestown Foundation in late 2010 found that 68 people killed by drones in

Pakistan since 2004 "could be clearly identified as civilians." Bryan Glyn Williams, Matthew Fricker, &

Avery Plaw,

New Light on the Accuracy of the CIA's Predator Drone Campaign in Pakistan,

41 T

ERRORISM MONITOR 8 (2010).

159

Colonel David M. Sullivan, an Air Force pilot with "extensive experience with both traditional and

drone airstrikes" told the

New York Times that the US figures "do[] not sound . . . like reality." Shane,

C.I.A. is Disputed on Civilian Death Toll in Drone Strikes

, supra note 157.

160

John O. Brennan, Assistant to the President for Homeland Security and Counterterrorism, Remarks at

the Woodrow Wilson International Center for Scholars (Apr. 30, 2012),

available at

http://www.wilsoncenter.org/event/the-efficacy-and-ethics-us-counterterrorism-strategy.

161

Becker & Shane, supra note 144.

162

In 2009, an unnamed US official told the New York Times that the US had killed "just over 20"

civilians in the two preceding years. Scott Shane,

C.I.A. to Expand Use of Drones in Pakistan, N.Y. TIMES

(Dec. 3, 2009), http://www.nytimes.com/2009/12/04/world/asia/04drones.html?pagewanted=all. Five

months later, officials claimed the number since 2008 remained under 30. David S. Cloud,

CIA Drones

Have Broader List of Targets

, L.A. TIMES (May 5, 2010),

33

A recent exposé in the

New York Times partially helped to explain the White House's

astonishingly low estimates by revealing that the Obama administration considers "all

military-age males [killed] in a strike zone" to be "combatants . . . unless there is explicit

intelligence posthumously proving them innocent."

163 How the US would go about

gathering such posthumous evidence is unclear, in part because drone victims' bodies

are frequently dismembered, mutilated, and burned beyond recognition.

164 And

importantly, there is little evidence that US authorities have engaged in any effort to

visit drone strike sites or to investigate the backgrounds of those killed.

165 Indeed, there

is little to suggest that the US regularly takes steps even to identify all of those killed or

wounded.

Consistent with an apparent lack of diligence in discovering the identities of those killed,

there is also evidence that the US has tried to undermine individuals and groups that are

working to discover more about those killed. In August 2011, the

New York Times first

http://articles.latimes.com/2010/may/05/world/la-fg-drone-targets-20100506. A recent article

comparing statements given to the press by US officials found that the Obama administration's civilian

death estimates over the last two years have vacillated between 0 and 50.

See Justin Elliott, Obama

Administration's Drone Death Figures Don't Add Up

, PROPUBLICA (June 18, 2012),

http://www.propublica.org/article/obama-drone-death-figures-dont-add-up.

163

Becker & Shane, supra note 144.

164

Newspaper accounts of drone strikes sometimes note that the bodies of strike victims are too damaged

to be identified.

See, e.g., Drone Strike Kills 14 in NWA, NEWS (July, 24, 2012),

http://www.thenews.com.pk/Todays-News-13-16297-Drone-strikes-kill-14-in-NWA ("[B]odies were

damaged beyond recognition."); Haji Mujtaba,

US Drone Attack Kills 10 in Pakistan: Officials, REUTERS

(Feb. 8, 2012), http://in.reuters.com/article/2012/02/08/pakistan-drone-idINDEE81701N20120208

("Almost all the men were burnt beyond recognition.");

US Drone Attack Kills 10 in North Waziristan,

D

AILY TIMES (Feb. 9, 2012),

http://www.dailytimes.com.pk/default.asp?page=2012%5C02%5C09%5Cstory_9-2-2012_pg7_4

("'Almost all the men were burnt beyond recognition,' a villager said."). Several interviewees also told us

that the bodies recovered from strike sites are mutilated and burned beyond recognition.

See, e.g.,

Interview with Ismail Hussain (anonymized name), in Islamabad, Pakistan (Feb. 26, 2012) ("[T]heir

bodies were totally destroyed. . . . We can't say that it is exactly four persons [that were killed]. It could be

five or six as well because they were cut into pieces. We couldn't identify them.");

supra Chapter 3: Living

Under Drones.

165

US officials told the New York Times that the CIA and NSA investigate drone casualties by watching

the aftermath of strikes by video, and "track[ing] the funerals that follow." Shane,

C.I.A. is Disputed on

Civilian Death Toll in Drone Strikes

, supra note 157. They further "intercept cell phone calls and emails

discussing who was killed."

Id. The sufficiency of this method of post-strike investigation is questionable,

given frequently poor cell signals in the area, and given that most households do not have the electricity or

infrastructure to support an internet connection.

See Tayyeb Afridi, Would Social Media Bring Change to

Pakistan's Tribal Area?

, KUTNEWS AUSTIN (May 25, 2011), http://kutnews.org/post/would-social-mediabring-

change-pakistan%E2%80%99s-tribal-area (noting that social media and internet service are

generally unavailable in FATA due to lack of electricity, and high cost); Interview with Noor Behram, in

Islamabad, Pakistan (Mar. 9, 2012).

34

reported on efforts by Pakistani human rights lawyer Shahzad Akbar and by

TBIJ, an

independent non-profit news reporting agency based at City University in London,

166 to

document civilian drone casualties. The

Times reported then that "anonymous US

officials" accused Akbar of "working to discredit the drone program at the behest of . . .

ISI, the Pakistani spy service."

167 The Times further reported that these officials argued

that the Bureau's data were "suspect" because of links to Akbar.

168 TBIJ released a

report a few months later on the US practice of targeting rescuers and funeral-goers.

169

Another anonymous official dismissed the report's findings with the statement, "[l]et's

be under no illusions—there are a number of elements who would like nothing more

than to malign these efforts and help Al Qaeda succeed."

170 The US has never provided

any evidence that might link Akbar to the ISI, or that might justify its allegation against

TBIJ

, relying instead on mainstream media sources to re-publish serious but

anonymous accusations made by its own officials.

171

Even before the Obama administration's novel definition of a "combatant" was

revealed,

172 a number of journalists who regularly cover drone strikes already recognized

166

TBIJ was founded to produce "high quality investigations for press and broadcast media with the aim

of educating the public and the media on both the realities of today's world and the value of honest

reporting."

About the Bureau, THE BUREAU OF INVESTIGATIVE JOURNALISM,

http://www.thebureauinvestigates.com/who/ (last visited Sept. 8, 2012). It was founded in 2010 with a

grant from the David and Elaine Potter Foundation, a British charity dedicated to promoting "reason,

education, and human rights" around the world. D

AVID & ELAINE POTTER FOUNDATION,

http://www.potterfoundation.com/ (last visited Sept. 8, 2012).

167

Shane, C.I.A. is Disputed on Civilian Death Toll in Drone Strikes, supra note 157.

168

Id.

169

Chris Woods & Christina Lamb, Obama Terror Drones: CIA Tactics in Pakistan Include Targeting

Rescuers and Funerals

, THE BUREAU OF INVESTIGATIVE JOURNALISM (Feb. 4, 2012),

http://www.thebureauinvestigates.com/2012/02/04/obama-terror-drones-cia-tactics-in-pakistaninclude-

targeting-rescuers-and-funerals/.

170

Scott Shane, US Said to Target Rescuers at Drone Strike Sites, N.Y. TIMES (Feb. 5, 2012),

http://www.nytimes.com/2012/02/06/world/asia/us-drone-strikes-are-said-to-target-rescuers.html.

171

Scott Shane, the author of both articles, was criticized by Harvard's Nieman Foundation for Journalism

for attributing personal attacks to anonymous sources, which they said violates the

New York Times'

ethical policies governing the use of confidential sources. John Hanrahan,

Why is the New York Times

Enabling a US Government Smear Campaign Against Reporters Exposing the Drone Wars?

, NIEMAN

W

ATCHDOG (May 11, 2012),

http://www.niemanwatchdog.org/index.cfm?fuseaction=ask_this.view&askthisid=00562&forumaction=

post. In written correspondence with

Nieman Watchdog, Shane defended his use of the anonymous

quotes by explaining that these anonymous comments were all he was able to get from the US, and that he

has to use them in order to "include some voice from the other side."

Id.

172

Becker, supra note 144.

35

that the sweeping official claims of all-militant casualties were likely untrue.

173

Nonetheless, most major Western and Pakistani news agencies still tend to rely on

anonymous government sources and to report that strikes have killed "militants" or

"suspected militants."

174 Some of the media agencies update their reports later to reflect

contrary information if and when it emerges, but others, including major wire services,

have at times let their initial reports stand even after credible accounts of civilian

casualties have subsequently come to light.

175

C

ONFLICTING MEDIA REPORTS

Media reports on drone strikes also often contradict one another on a range of strike

details, including the nationalities of victims, the number of persons killed, and the

types of structures targeted. For example, a May 24, 2012 strike in Khassokhel, Mir Ali

was reported by the

Associated Press as a strike on a "militant hideout" that killed "10

173

Interview with W.K., journalist with major western news source (anonymized initials), and journalists

with Pakistani news outlets, in Islamabad, Pakistan (Mar. 3, 2012); Interview with G.Z., journalist with

major western news source (anonymized initials), in Islamabad, Pakistan (Mar. 7, 2012); Interview with

K.N., journalist with major western news source (anonymized initials), in Islamabad, Pakistan (Mar. 5,

2012).

174

After the New York Times piece, media sources have continued to rely on anonymous government

sources and tend to report that strikes have killed "militants" or "suspected militants."

See, e.g., Nasir

Habib,

Suspected Drone Attack Kills 12 in Pakistan, CNN (July 23, 2012),

http://edition.cnn.com/2012/07/23/world/asia/pakistan-drone-attack/index.html; Salman Masood &

Ihsanullah Tipu Mehsud,

15 Killed in US Drone Strike in Pakistan, N.Y. TIMES (July 6, 2012),

http://www.nytimes.com/2012/07/07/world/asia/15-killed-in-us-drone-strike-in-pakistan-aimed-attaliban.

html?_r=1;

US Drone Strike 'Kills At Least Five' in North Waziristan, EXPRESS TRIBUNE (June 26,

2012), http://dawn.com/2012/06/26/us-drone-strike-kills-at-least-five-in-north-waziristan/ (reprinting

Agence France-Presse story);

Drone Strike Kills 4 in Pakistan Ahead of Allen Talks, CNN (June 26, 2012),

http://edition.cnn.com/2012/06/26/world/asia/pakistan-drone-strike/index.html;

US Drone Kills Nine

in North Waziristan

, NATION (July 6, 2012), http://www.nation.com.pk/pakistan-news-newspaper-dailyenglish-

online/islamabad/06-Jul-2012/us-drone-strike-kills-4-in-nwaziristan (reprinting Agence France-

Presse story);

US Drone Kills Seven Militants in North Waziristan: Officials, DAWN (July 29, 2012),

http://dawn.com/2012/07/29/us-drone-strike-kills-four-in-north-waziristan-2/ (reprinting Agence

France-Presse story);

US Drone Strike Kills Six Militants in Pakistan: Officials, EXPRESS TRIBUNE (July 1,

2012), http://tribune.com.pk/story/401902/us-drone-strike-kills-six-militants-in-pakistan-officials/

(reprinting Agence France-Presse story);

US Drone Kills 12 Suspected Militants in Pakistan, REUTERS

(July 23, 2012), http://uk.reuters.com/article/2012/07/23/uk-pakistan-droneidUKBRE86M13G20120723;

Mushtuq Yusufzai,

US Drone Kills 8 Suspected Militants in Pakistan

Hideout

, MSNBC.COM (July 1, 2012), http://worldnews.nbcnews.com/_news/2012/07/01/12504073-usdrone-

kills-8-suspected-militants-in-pakistan-hideout?lite.

175

See Conflicting Media Reports, infra Chapter 2: Numbers.

36

alleged militants," most of whom were "Uzbek insurgents."

176 A Reuters wire released at

around the same time reported that the strike was on "suspected Islamist militants" and

killed ten people, while the

Agence France-Presse reported that there were five

"insurgents."

177 Neither Reuters nor AFP made any mention of the victims'

nationality.

178 The BBC, for its part, reported that the strike was on a "house," and that it

had killed "at least eight people" of "Turkmen origin."

179 Within twenty-four hours, a

number of other reputable sources, both western and Pakistani, reported that the strike

had actually hit a mosque during morning prayers,

180 and that some sources, at least,

contended that the dead included local Waziri villagers.

181 Some western media outlets

updated their reports to reflect these new allegations,

182 while others ignored the new

information.

183 The Associated Press referenced the May 24 strike in a separate article

four days later, but failed to mention the possibility that a mosque had been struck.

184

176

Rasool Dawar, Pakistan Officials Say US Drone Kills 10 Militants, AP WORLDSTREAM (May 24, 2012).

177

See Hasbanullah Khan, 'Five Militants Killed' by US Drone in Pakistan, AGENCE FRANCE-PRESSE (May

23, 2012),

http://www.google.com/hostednews/afp/article/ALeqM5h_NYzU3o4KUWtTBouMGdzKeOhqjw?docId=

CNG.12419227fd3472cf2255b588417525f8.341;

US Drone Kills 10 in Pakistan, IRISH TIMES (May 24,

2012), http://www.irishtimes.com/newspaper/breaking/2012/0524/breaking8.html.

178

See supra note 177 and accompanying text. The AFP article did mention, however, that in addition to

"insurgents" being killed, there were reports that "a nearby mosque where three worshippers believed to

be Central Asian nationals were wounded."

See Khan, supra note 177.

179

The article did mention that "a nearby mosque was also damaged." US Drone 'Kills 8' in Pakistan, BBC

N

EWS (May 24, 2012), http://www.bbc.co.uk/news/world-asia-18186093.

180

See, e.g., Drone Strike Hits Pakistan Mosque, Say Locals, CHANNEL 4 (May 24, 2012),

http://www.channel4.com/news/us-drone-attack-hits-pakistan-mosque; Malik Mumtaz Khan & Mushtaq

Yusufzai,

10 Killed in Drone Attack on NWA Mosque, NEWS (May 25, 2012),

http://www.thenews.com.pk/Todays-News-13-14861-10-killed-in-drone-attack-on-NWA-mosque;

US

Drone Strike Hits Mosque: 10 Killed

, NATION (May 25, 2012), http://www.nation.com.pk/pakistan-newsnewspaper-

daily-english-online/national/25-May-2012/us-drone-strike-hits-mosque-10-killed.

181

See, e.g., Drone Strike Hits Pakistan Mosque, Say Locals, supra note 180; Khan & Yusufzai, supra

note 180.

182

See, e.g., Khan, supra note 177; Mushtaq Yusufzai, Pakistan Official: US Drone Strike Hits Mosque; 10

Killed

, MSNBC.COM (May 23, 2012), http://worldnews.msnbc.msn.com/_news/2012/05/23/11839215-

pakistan-official-us-drone-strike-hits-mosque-10-killed?lite.

183

Chris Brummitt & Riaz Khan, Pakistan Convicts Doctor Who Helped Find bin Laden, AP

W

ORLDSTREAM (May 24, 2012), http://bigstory.ap.org/content/pakistan-convicts-doctor-who-helpedfind-

bin-laden-0; Haji Mujtaba,

UPDATE 2-US Drone Strike Kills 10 in Northwest Pakistan—Officials,

R

EUTERS (May 24, 2012), http://www.reuters.com/article/2012/05/24/us-pakistan-droneidUSBRE84N03I20120524.

184

Rasool Dawar, Associated Press, Pakistan: US Missiles Kill 5 Militants in NW, GUARDIAN (May 28,

2012),

http://www.guardian.co.uk/world/feedarticle/10261577.

37

Instead,

AP wrote that "[t]he attack took place in a militant hideout" and that "[m]ost of

those killed were Uzbek insurgents," citing a Pakistani intelligence source.

185

The discrepancies in these reports are the result of numerous factors–primarily the US

government's opaqueness, compounded by the investigation obstacles faced by

independent actors. As described in Chapter 1 (Background and Context), Federally

Administered Tribal Areas (FATA) is closed to all outsiders, including Pakistani citizens

from outside the agencies. This means that few researchers or non-local journalists can

actually visit North Waziristan to investigate drone strike casualties independently.

When they do, they are often accompanied by Pakistani military forces who have an

interest in controlling their access to information and influencing their reporting.

186

Most journalists writing on drone strikes thus rely instead on a combination of

intelligence and military leaks, government sources who refuse to go on the record by

name, and, sometimes, local Waziri correspondents, or "stringers."

187 All of these

sources have the potential to be unreliable. First, the reliability of intelligence and

security reports, especially anonymous ones, should be questioned in light of their

political interests and the documented history of such officials incorrectly reporting

basic facts. For instance, Pakistani security officials initially reported that the wellknown

March 17, 2011 drone strike in Datta Khel destroyed a militant "house" where "a

group of some three dozen alleged Taliban fighters were meeting."

188 Convincing

evidence indicates that the strike was actually on an open-air bus depot, where

prominent civilian tribal leaders were holding a

jirga.189 "Official" reports from the local

government are also problematic because they come through the local political agent, an

185

Id.

186

The Pakistani military occasionally helicopters embedded journalists from American media outlets into

FATA for just a few hours at a time. Interview with G.Z., journalist with major western news source

(anonymized initials), in Islamabad, Pakistan (Mar. 7, 2012); Interview with K.N., journalist with major

western news source (anonymized initials) in Islamabad, Pakistan (Mar. 5, 2012).

187

Interview with G.Z., journalist with major western news source (anonymized initials), in Islamabad,

Pakistan (Mar. 7, 2012); Interview with K.N., journalist with major western news source (anonymized

initials), in Islamabad, Pakistan (Mar. 5, 2012).

188

Dozens Die as US Drone Hits Pakistan Home, AL JAZEERA (Mar. 17, 2011),

http://www.aljazeera.com/news/asia/2011/03/20113178411386630.html. AFP also reported a security

official's claim about missiles striking a "militant training centre."

Militants Killed in Pakistan Drone

Strikes

, ABC NEWS (Mar. 17, 2011), http://www.abc.net.au/news/2011-03-17/militants-killed-inpakistan-

drone-strikes/2654524.

189

See March 17, 2011 Strike Narrative, infra Chapter 3: Living Under Drones.

38

office notoriously insulated from the community in which it sits and which many

suspect will report whatever seems politically expedient at the time.

190

Local stringers are in many ways a significant improvement over government sources

because they have access to people and places unavailable to those outside of FATA.

191

Yet they also face a range of unique pressures and challenges that can limit their

usefulness to journalists on the outside.

192 First, some locals are reluctant to speak to

stringers about strikes at all, because years of living with ISI, Taliban, and US

intelligence operatives in their midst have left them justifiably fearful of retaliation from

all sides of the conflict. The ISI, for instance, is widely believed responsible for forcibly

disappearing and illegally detaining FATA citizens suspected of militant ties.

193 Paid CIA

informants are also rumored to have planted drone-targeting chips on neighbors.

194

Lastly, the Taliban is believed to have avenged drone strikes by killing those it believes

to be US spies.

195 Like local contacts, stringers themselves are also under strong

pressure from competing local interests, living under constant threat of violence from

both armed non-state actors and the Pakistani military if they fail to report information

favorable to one side or the other.

196 Indeed, the Tribal Union of Journalists FATA

190

Interview with Samina Ahmad, International Crisis Group, in Islamabad, Pakistan (Feb. 28, 2012);

Interview with W.K., journalist with major western news source (anonymized initials) and journalists with

Pakistani news outlets, in Islamabad, Pakistan (Mar. 3, 2012); Interview with Noor Behram, in Islamabad,

Pakistan (Mar. 9, 2012).

191

Interview with journalists W.K., journalist with major western news source (anonymized initials) and

journalists with Pakistani news outlets, in Islamabad, Pakistan (Mar. 3, 2012).

192

Id.; Interview with journalist G.Z., journalist with major western news source (anonymized initials), in

Islamabad, Pakistan (Mar. 7, 2012); Interview with journalist K.N., journalist with major western news

source (anonymized initials), in Islamabad, Pakistan (Mar. 5, 2012).

193

See, e.g., Waseem Ahmad Shah, Illegal Detentions: Court Tells Army to Rein In Errant Agencies,

D

AWN (Apr. 13, 2011), http://dawn.com/2012/04/13/illegal-detentions-court-tells-army-to-rein-inerrant-

agencies/; Declan Walsh,

Court Challenges Put Unusual Spotlight on Pakistani Spy Agency, N.Y.

T

IMES (Feb. 6, 2012), http://www.nytimes.com/2012/02/07/world/asia/isi-in-pakistan-faces-courtcases.

html?pagewanted=all.

194

See Beyond Killing: Civilian Impacts of US Drone Strike Practices, infra Chapter 3: Living Under

Drones.

195

See, e.g., Taliban Shoot Dead Four 'US Spies' in North Waziristan, DAWN (Mar. 21, 2011),

http://dawn.com/2011/03/21/taliban-shoot-dead-four-us-spies-in-north-waziristan/.

196

See, e.g., Amirzada Afridi, FATA Journalists: The Forgotten Scribes of a Secret War, EXPRESS TRIBUNE

(Sept. 10, 2011), http://tribune.com.pk/story/249142/fata-journalists-the-forgotten-scribes-of-a-secretwar/;

Ikram Junaidi,

FATA Journalists on Razor's Edge, DAWN (Mar. 1, 2012),

http://dawn.com/2012/03/01/fata-journalists-on-razors-edge/ ("President [of the] Tribal Union of

Journalists Safdar Hayat Dawar . . . alleged that both the military and Taliban forced media persons to file

stories of their choice, adding [that] both didn't care about human rights."); Rahimullah Yusufzai,

Pakistani Journalists Under Siege

, NEWSLINE (Feb. 29, 2012),

http://www.newslinemagazine.com/2012/02/pakistani-journalists-under-siege/; Micah Zenko,

The

39

reports that at least ten journalists or stringers have been killed since 2005,

197 and that

those still working in the area are subject to intimidation and coercion.

198

While many outside journalists are conscious of these pressures on their local sources

and of the hidden agenda behind government reports, they have very limited options for

getting information out of FATA.

199 Corroborating or challenging the divergent reports

they receive from officials, stringers, and locals is difficult. As a result, journalists often

find themselves in the position of having to choose between reporting "official" casualty

figures that they consider untrustworthy, or higher numbers from civilian sources that

they may be unable to corroborate.

200 Those who work for major news outlets and wire

services tend to spend more time embedded with military and intelligence officials and

are thus more likely to report "official" accounts.

201 Those who are not escorted into

FATA by the military rely more on locals and stringers.

202 The result is that different

journalists with different contacts get different stories, make different decisions about

who to trust, and frequently end up publishing conflicting accounts of each strike.

Courage of Pakistani Journalists

, ATLANTIC (Sept. 20, 2011),

http://www.theatlantic.com/international/archive/2011/09/the-courage-of-pakistanijournalists/

245358/.

197

Tribal Union of Journalists FATA Martyred, TRIBAL UNION OF JOURNALISTS FATA,

http://www.tuj.com.pk/martyred.html (last visited May 25, 2012).

198

See, e.g., Government Urged to Ensure Security of Journalists in FATA, DAILY TIMES (Mar. 2, 2012),

http://www.dailytimes.com.pk/default.asp?page=2012%5C03%5C02%5Cstory_2-3-2012_pg7_19.

199

Interview with journalists W.K., journalist with major western news source (anonymized initials) and

journalists with Pakistani news outlets, in Islamabad, Pakistan (Mar. 3, 2012); Interview with journalist

G.Z., journalist with major western news source (anonymized initials), in Islamabad, Pakistan (Mar. 7,

2012).

200

Interview with journalists W.K., journalist with major western news source (anonymized initials) and

journalists with Pakistani news outlets, in Islamabad, Pakistan (Mar. 3, 2012); Interview with journalist

G.Z., journalist with major western news source (anonymized initials), in Islamabad, Pakistan (Mar. 7,

2012); Interview with journalist K.N., journalist with major western news source (anonymized initials), in

Islamabad, Pakistan (Mar. 5, 2012).

201

Interview with journalist G.Z., journalist with major western news source (anonymized initials), in

Islamabad, Pakistan (Mar. 7, 2012); Interview with journalist K.N., journalist with major western news

source (anonymized initials), in Islamabad, Pakistan (Mar. 5, 2012).

202

Interview with journalists W.K., journalist with major western news source (anonymized initials) and

journalists with Pakistani news outlets, in Islamabad, Pakistan (Mar. 3, 2012); Interview with journalist

K.N., journalist with major western news source (anonymized initials), in Islamabad, Pakistan (Mar. 5,

2012).

40

O

THER CONSIDERATIONS THAT MAY LEAD TO CONFLICTING REPORTS

L

IMITED FIRST-HAND KNOWLEDGE

Even when journalists are able to get information directly from local residents or

stringers, there is no guarantee that those locals actually know the full extent of the

casualties around them, even among their own neighbors. Many traditional Waziri

families live in large, high-walled, multi-family compounds in which women and young

children work, eat, and sleep separately from men.

203 It is generally unacceptable to ask

direct questions to a male family member about female relatives, or to photograph

women.

204 As a result, male community members may not know details about one

another's families or households, including the exact number of people who live there,

and so may not be able to say how many people were inside a home before it was hit by a

drone strike. The result is that neighbors and second-hand witnesses may, in some

cases, underreport drone strike casualties simply because they do not know the full

extent of a given strike's toll.

U

NREPORTED STRIKES

At the time of this writing, the US is believed to have conducted 344 total strikes in

Pakistan, 52 between June 17, 2004 and January 2, 2009 (under President Bush),

205

and 292 strikes between January 23, 2009 and September 2, 2012 (under President

Obama).

206 Those numbers, which TBIJ has pieced together from available media

203

See, e.g., Interview with Ibrahim Shah, in Islamabad, Pakistan (May 9, 2012) (telling us he lives in a

large extended family compound of 50-60 relatives).

204

Population Demography, GOVERNMENT OF PAKISTAN FEDERALLY ADMINISTERED TRIBAL AREA

S

ECRETARIAT, http://fata.gov.pk/index.php?option=com_content&view=article&id=56&Itemid=92 (last

visited Sept. 1, 2012) (noting that in FATA "tribal custom forbids the disclosure of information about

women to outsiders").

205

The Bush Years: Pakistan Strikes 2004-2009, THE BUREAU OF INVESTIGATIVE JOURNALISM,

http://www.thebureauinvestigates.com/2011/08/10/the-bush-years-2004-2009/ (last visited Sept. 1,

2012).

206

Covert War On Terror—The Data, THE BUREAU OF INVESTIGATIVE JOURNALISM,

http://www.thebureauinvestigates.com/category/projects/drone-data/ (last visited Sept. 16, 2012).

41

reports,

207 may underestimate the total number of strikes, especially during the early

years of the drone program.

Between 2004 and 2007, the Pakistani government under President Musharraf

attempted to hide the fact of US strikes (and Pakistan's role in them) by contending that

the strikes were either Pakistani military operations, car bombs, or accidental

explosions.

208 Many of those claims were contradicted within days or weeks by

anonymous leaks and eyewitness accounts,

209 and by local journalists gathering

evidence at the scenes of the attacks.

210 In one unusually well-publicized incident, an

207

Covert US Strikes in Pakistan, Yemen, and Somalia—Our Methodology, THE BUREAU OF INVESTIGATIVE

J

OURNALISM, http://www.thebureauinvestigates.com/2011/08/10/pakistan-drone-strikes-themethodology2/

(last visited Sept. 1, 2012).

208

Gareth Porter, Why Pakistani Military Demands a Veto on Drone Strikes, INTERPRESS SERVICE (Aug.

16, 2011), http://ipsnews.net/news.asp?idnews=56873;

see also Accidental Blast While Assembling

Bomb Kills Eight

, GULF NEWS (Nov. 6, 2005) (reporting Pakistani army officials' claim that the November

5, 2005 strike was caused by militants who "set off a blast while making bombs at their compound"),

http://gulfnews.com/news/world/pakistan/accidental-blast-while-assembling-bombs-kills-eight-

1.443552;

CIA Drone Kills al-Qaeda Operative, MSNBC.COM (May 14, 2005) (reporting Pakistani officials

claim May 8, 2005 strike was car bomb explosion),

http://www.msnbc.msn.com/id/7847008/ns/us_news-security/t/cia-drone-kills-al-qaidaoperative/#.

T9VqdeJYvAs; Anwarullah Khan,

82 Die as Missiles Rain on Bajaur: Pakistan Owns Up to

Strike; Locals Blame US Drones

, DAWN (Oct. 31, 2006) (reporting Pakistani officials insist October 30,

2006 strike on a

madrassa that killed 69 children was a Pakistan Army operation),

http://archives.dawn.com/2006/10/31/top1.htm; Ismail Khan,

Senior Al Qaeda Commander Killed,

D

AWN (Dec. 3, 2005) (reporting Pakistani authorities claim December 1, 2005 strike was "the result of an

explosion inside the house"), http://archives.dawn.com/2005/12/03/top4.htm; Iqbal Khattak,

Nek Killed

in Missile Strike

, DAILY TIMES (June 19, 2004) (reporting the Pakistani military and intelligence sources

claim to have carried out June 14, 2004 strike using "US-provided night-capable helicopter"),

http://www.dailytimes.com.pk/default.asp?page=story_19-6-2004_pg1_1;

US Drone Attack? It Was Us,

Says Pakistan Army

, REUTERS (Jan. 19, 2007) (reporting Pakistani military insists January 19, 2007

strike was conducted by "helicopter gunships"), http://www.reuters.com/article/2007/01/19/uspakistan-

usa-idUSSP30752020070119.

209

See, e.g., Ismail Khan, supra note 208 (contradicting official reports to quote witnesses saying that

both Nov. 5, 2005 and Dec. 1, 2005 strikes were drone operations, and that the first had killed a woman

and children); Ismail Khan & Dilawar Khan Wazir,

Night Raid Kills Nek, Four Other Militants: Wana

Operation

, DAWN (Jun. 19, 2004) (speculating that June 18, 2004 strike may have been a targeted missile

from a "spy drone"), http://archives.dawn.com/2004/06/19/top1.htm; Dana Priest,

Surveillance

Operation in Pakistan Located and Killed al Qaeda Official

, WASH. POST (May 15, 2005) (revealing that

May 8, 2005 strike was conducted by a CIA Predator drone), http://www.washingtonpost.com/wpdyn/

articles/A60743-2005May15.html.

210

Local FATA journalist Hayatullah Khan was the first to gather conclusive evidence of US involvement

in a drone strike when he photographed Hellfire missile shrapnel in the rubble of a December 2005 strike

that killed two children.

See A Journalist in the Tribal Areas, FRONTLINE (Oct. 3, 2006),

http://www.pbs.org/wgbh/pages/frontline/taliban/tribal/hayatullah.html;

see also House-Owner Called

After Missile Attack

, DAWN (Dec. 5, 2005), http://archives.dawn.com/2005/12/05/top3.htm. Khan was

abducted four days afterward on December 5, 2005, and his body dumped in a ditch six months later with

42

official in the Musharraf regime reportedly asserted that the Pakistani military had

conducted a strike on a religious school in Bajaur that killed over 80 people, including

69 children.

211 One of Musharraf's aides reportedly told a Pakistani media source that

the government believed "it would be less damaging" to claim it had killed 82 people

than it would be to reveal that it had agreed to let the US carry out strikes on Pakistani

soil.

212 Musharraf's administration was reported to admit that the strike had been a US

operation only after political backlash from the strike turned out to be much greater

than the government had anticipated.

213 Considering the Musharraf government's

apparent efforts to cover up the US's role in drone strikes, and the fact that drones often

target remote or isolated areas, it is possible that other strikes from the 2004-2007

period have yet to be identified.

Our team's fieldwork in Pakistan documented at least one incident that might fit this

pattern. We interviewed 15 Waziris, including four survivors and four more who visited

the strike site within hours or days of the attack, who described to us what they believed

to have been a drone strike that took place on June 10, 2006.

214 The attack took place in

gunshot wounds to the back of the head and government-issued handcuffs on his wrists.

See A Journalist

in the Tribal Areas

, supra. Many major Pakistani news outlets speculated that the Musharraf regime

abducted and killed Khan in retaliation for exposing their fabrications and complicity with US strikes.

See

Cable from Ambassador Ryan C. Crocker, US Embassy Islamabad, Subject: Fata: Missing Pakistani

Journalist Found Dead in Waziristan (Jun. 20, 2006),

available at

http://www.cablegatesearch.net/cable.php?id=06ISLAMABAD11675&q=hayatullah%20khan.

211

Anwarullah Khan, supra note 208; see Yousuf Ali, Most Bajaur Victims Were Under 20, NEWS (Nov. 5,

2006), http://www.thenews.com.pk/TodaysPrintDetail.aspx?ID=4043&Cat=13&dt=11/5/2006; Porter,

supra

note 208.

212

Americans Bombed the Bajaur Madrassa, DAILY TIMES (Nov. 27, 2006),

http://www.dailytimes.com.pk/default.asp?page=2006%5C11%5C27%5Cstory_27-11-2006_pg1_3

(quoting Musharraf aide).

213

Id.; Porter, supra note 208.

214

See Interview with Yaser Abdullah (anonymized name) in Islamabad, Pakistan (Mar. 9, 2012);

Interview with Masood Afwan (anonymized name), in Islamabad, Pakistan (Feb. 26, 2012); Interview

with Marwan Aleem (anonymized name) in Islamabad, Pakistan (Feb. 26, 2012); Interview with Aftab Gul

Ali (anonymized name) in Islamabad, Pakistan (Feb. 26, 2012); Interview with Khalil Arshad

(anonymized name) in Islamabad, Pakistan (Mar. 9, 2012); Interview with Umar Ashraf (anonymized

name) in Islamabad, Pakistan (Mar. 9, 2012); Interview with Ajmal Bashir (anonymized name) in

Islamabad, Pakistan (Feb. 26, 2012); Interview with Mohsin Haq (anonymized name) in Islamabad,

Pakistan (Feb. 26, 2012); Interview with Dawood Ishaq (anonymized name) in Islamabad, Pakistan (Mar.

8, 2012); Interview with Maher Jabbar (anonymized name) in Islamabad, Pakistan (Mar. 9, 2012);

Interview with Dannesh Jameel (anonymized name) in Islamabad, Pakistan (Feb. 26, 2012); Interview

with Shahbaz Kabir (anonymized name) in Islamabad, Pakistan (Feb. 26, 2012); Interview with Haidar

Nauman (anonymized name) in Islamabad, Pakistan (Mar. 9, 2012); Interview with Noor Shafeeq

(anonymized name) in Islamabad, Pakistan (Feb. 26, 2012); Interview with Arman Yousef (anonymized

name), in Islamabad, Pakistan (Feb. 26, 2012).

43

the early morning of June 10 on a workers' bunkhouse in a chromite mining camp in the

mountains near Datta Khel. In the bunkhouse, a large group of young miners and

woodcutters were asleep. Missiles killed 22 and badly injured four. The press described

the incident as a helicopter gunship attack carried out by the Pakistani military,

215 based

on statements by Pakistani officials claiming responsibility.

216 The survivors and those

killed were asleep before the first explosion and knocked unconscious shortly thereafter.

In light of the classification by media sources (helicopter strike), the lack of available

physical evidence given the remoteness of the location, the lack of eyewitness testimony

to the source of the strike, and the significant passage of time since the attack, our

research team could not determine whether this incident was a US drone strike or

Pakistani helicopter strike, and so chose not to include this event as a drone strike.

217

Nonetheless, given the extensive loss of life, this incident should investigated thoroughly

by competent authorities.

S

TRIKE DATA AGGREGATORS

The three most well-known and widely quoted sources of aggregated strike data are the

Year of the Drone

project by the New America Foundation think tank;218 The Long War

215

The Pakistani military asserted that the June 10, 2006 attack was carried out by "4 gunship helicopters

and artillery," and that "explosive material in [the building] started to explode," killing the "militants"

inside.

Security Forces Kill 20 Militants Near Pak-Afghan Border, PAK TRIBUNE (June 11, 2006),

http://paktribune.com/news/Security-forces-kill-20-militants-near-Pak-Afghan-border-146479.html.

216

That Pakistani authorities accepted responsibility for the attack should not be viewed as dispositive. In

several instances between 2005 and 2007, missile strikes initially claimed by authorities to have been

executed by the Pakistani military were later shown to have been drone strikes.

See, e.g., David Rohde &

Mohammed Khan,

Ex-Fighter for Taliban Dies in Strike in Pakistan, N.Y. TIMES (June 19, 2004),

http://www.nytimes.com/2004/06/19/international/asia/19STAN.html;

see also Ismail Khan, Senior Al

Qaeda Commander Killed

, DAWN (Dec. 2, 2005), http://archives.dawn.com/2005/12/03/top4.htm;

Ishtiaq Mahsud,

Tribe: US, Not Pakistan, Hit Village, WASH. POST (Jan. 19, 2007),

http://www.washingtonpost.com/wp-dyn/content/article/2007/01/19/AR2007011900472.html;

3 Killed

in Mysterious Explosion in North Waziristan: Tribesmen Warn of Ending Peace Deal

, DAILY TIMES (Apr.

28, 2007),http://www.dailytimes.com.pk/default.asp?page=2007%5C04%5C28%5Cstory_28-4-

2007_pg7_1.

217

One piece of evidence requiring further research is the observation, by one interviewee, that a piece of

shrapnel bore British identification. Arman Yousef (anonymized name), who lost his son in the incident,

told our researchers, "[w]e collect parts of the missiles. When my son was killed, I saw a part of the

missile—it said 'Made in Britain.'" Interview with Arman Yousef (anonymized name), in Islamabad,

Pakistan (Feb. 26, 2012).

218

About the Long War Journal, LONG WAR JOURNAL, http://www.longwarjournal.org/about.php (last

visited July 31, 2012).

44

Journal

, a blog and project of the Foundation for Defense of Democracies;219 and TBIJ,

a London-based journalism non-profit.

220 Each of these organizations, in seeking to

track and aggregate strikes and their impacts, fulfills an important public transparency

role. Their data have been invaluable in public debates about drone and targeted killing

policies. Given the US government's failure to provide even basic facts about the strikes,

these non-governmental sources are essential.

Nevertheless, the data sets of aggregator organizations have limits. Because consistently

reliable information on drone strikes is impossible to come by, none of the online

databases that track drone strike reports can provide wholly accurate data either. All

three aggregators state that their data is sourced from largely the same universe of

publicly available press reports in major western and Pakistani media outlets.

221

Nonetheless, to determine how many people died in a particular strike and determine

whether they were civilians or "militants," each organization must navigate a morass of

contradictory press accounts and opaque intelligence reports, and make several

subjective decisions about which sources are more reliable than others. Each uses a

different set of categories and labels to classify the victims.

Long War Journal uses

"civilians" or "Taliban/Al Qaeda," or "leaders and operatives from Taliban, Al Qaeda,

219

About the Bureau, THE BUREAU OF INVESTIGATIVE JOURNALISM,

http://www.thebureauinvestigates.com/who/ (last visited Jul. 31, 2012).

220

The Year of the Drone, NEW AMERICA FOUNDATION, http://counterterrorism.newamerica.net/drones

(last visited July 31, 2012); Pakistan Body Count also tracks suicide bombings and drone attacks.

See

P

AKISTAN BODY COUNT, http://www.pakistanbodycount.org/.

221

See, e.g., Covert Strikes in Pakistan, Yemen, and Somalia—Our Methodology, THE BUREAU OF

INVESTIGATIVE JOURNALISM, http://www.thebureauinvestigates.com/2011/08/10/pakistan-dronestrikes-

the-methodology2/ (sources include,

inter alia, research publications, governmental documents,

and media sources that include "CNN, MSNBC, ABC News, Fox News, Reuters, the BBC, Associated Press,

the Guardian, the Telegraph, the Independent, TIME, the Wall Street Journal, the Washington Post, the

New York Times, the Los Angeles Times, the Nation, the Atlantic, Salon, Xinhua, Army Times, Navy

Times, Bloomberg, AFP, NPR, Al Jazeera, and Al Arabiya" ); Roggio & Mayer,

supra note 157 (stating that

Long War Journal

data is obtained from "press reports from the Pakistani press (Daily Times, Dawn,

Geo News, The News,

and other outlets), as well as wire reports (AFP, Reuters, etc.), as well as reporting

from the Long War Journal");

The Year of the Drone: An Analysis of US Drone Strikes in Pakistan, 2004-

2012

, NEW AMERICA FOUNDATION, http://counterterrorism.newamerica.net/drones (last visited Sept. 16,

2012) (stating that its database "draws only on accounts from reliable media organizations with deep

reporting capabilities in Pakistan, including the New York Times, Washington Post, and Wall Street

Journal, accounts by major news services and networks—the Associated Press, Reuters, Agence France-

Presse, CNN, and the BBC—and reports in the English-language newspapers in Pakistan—the Daily

Times, Dawn, the Express Tribune, and the News—as well as those from Geo TV, the largest independent

Pakistani news network.").

45

and allied extremist groups."

222 New America Foundation uses "militant," "unknown" or

"civilians."

223 TBIJ uses total killed or injured and "civilians," with no express category

for non-civilians.

224 Each aggregator places different weight on different types of

primary sources. As a result, the three data aggregators each come to different

conclusions about who has been and is being killed by US drone strikes in Pakistan.

For instance, New America Foundation's

Year of the Drone project reports that

somewhere between 1,584 and 2,716 "militants" have been killed in Pakistan since 2004,

and between 152 and 191 civilians (and 130-268 "unknowns").

225 The Long War Journal

(which does not keep data for 2004 and 2005) reports that drones have killed 2,396

"leaders and operatives from Taliban, Al Qaeda, and allied extremist groups" (which we

will refer to as "Taliban/Al Qaeda") in Pakistan since 2006, and 138 civilians.

226 With

the exception of high-value named targets (which are few

227), neither provides

information about the "militant" victims that would indicate whether they were actually

lawful targets under international law.

TBIJ, which does not use the "militant" label in

its data sets, reports that drones have killed between 474 and 881 Pakistani civilians

since 2004, out of 2,562 to 3,325 total deaths.

228

To explain the discrepancies in these figures, we briefly analyze in the section below the

methodologies used by each of the three strike-tracking sources to cull and categorize

strike reports.

T

HE LONG WAR JOURNAL

The Long War Journal

, a project run by the Foundation for the Defense of Democracies,

claims that 138 civilians have been killed between 2006 and the present. Unlike the New

America Foundation and

TBIJ, discussed below, The Long War Journal does not make

its data available in a strike-by-strike format. Instead, it publishes blog posts about new

222

Roggio & Mayer, supra note 157.

223

The Year of the Drone, supra note 221.

224

Covert War on Terror—The Data, supra note 206.

225

The Year of the Drone, supra note 221.

226

Roggio & Mayer, supra note 157. Long War Journal does not keep drone strike data for the years 2004

and 2005.

Id.

227

See Bergen & Rowland, supra note 152; Entous, supra note 149.

228

Covert War on Terror—The Data, supra note 206.

46

strikes soon after they are initially reported, and maintains a series of regularly updated

statistical graphs.

229 The strike information in its blog posts is based on reports by major

media outlets and on the

Journal's own investigations,230 which appear to consist

primarily of conversations with unnamed "US intelligence officials."

231 One analysis of

drone tallies asserts that

The Long War Journal's methodology places great weight on

US intelligence sources, especially when distinguishing between Taliban/Al Qaeda and

civilian casualties.

232 According to The Long War Journal's managing editor, Bill

Roggio, for the purposes of categorizing strike deaths, all those killed are counted as

"Taliban/Al Qaeda" unless "they are identified as civilians."

233

This raises two major concerns about the accuracy of

The Long War Journal's statistical

claims. First, because

The Long War Journal does not make its data visible in a strikeby-

strike format, it is impossible to tell whether and where its editors have logged

credibly reported civilian casualties, or to tell whether they update older strike data

regularly to reflect new information as it comes to light. The only strike-specific

information available on its website comes in the form of blog posts written by

managing editor Bill Roggio.

234 Those posts usually appear within twenty-four hours of

each new strike, citing initial reports from major media outlets that almost invariably

assert that only "Taliban/Al Qaeda" were killed.

235 Second, The Long War Journal's

229

See LONG WAR JOURNAL, www.longwarjournal.org.

230

Roggio & Mayer, supra note 157.

231

See, e.g., Bill Roggio, Latest US Drone Strike Kills 10 'Militants' in South Waziristan, LONG WAR

J

OURNAL (June 3, 2012), http://www.longwarjournal.org/archives/2012/06/latest_us_drone_stri.php;

Bill Roggio,

North Waziristan Drone Strike Kills 4 'Militants', LONG WAR JOURNAL (June 13, 2012),

http://www.longwarjournal.org/archives/2012/06/us_drone_strike_kill_7.php; Bill Roggio,

US Drones

Kill 15 in North Waziristan

, LONG WAR JOURNAL (June 4, 2012),

http://www.longwarjournal.org/archives/2012/06/us_drone_kill_15_in.php.

232

Avery Plaw, Matthew S. Fricker, & Brian Glyn Williams, Practice Makes Perfect? The Changing

Civilian Toll of CIA Drone Strikes in Pakistan

, 5 PERSPECTIVES ON TERRORISM 51, 58 (Dec. 2011)(observing

that "the

Long War Journal relies heavily on U.S. intelligence sources."). Plaw, Fricker, and Williams

have generated numerous reports using their own strike database, currently known as the UMassDRONE

project, but have not made it available to the public.

See, e.g., id.; Williams, Fricker, & Plaw, supra note

158, at 8.

233

See Sharon Weinberger, Pakistani Scholar Disputes US Drone Death Tallies, AOL NEWS (May 19,

2010) (quoting Bill Roggio as saying that "I'm using the opposite approach . . . I only count when they are

identified as civilians."), http://www.aolnews.com/2010/05/19/pakistani-scholar-disputes-low-dronedeath-

tallies/.

234

See LONG WAR JOURNAL, www.longwarjournal.org.

235

See, e.g., Roggio, Latest US Drone Strike Kills 10 'Militants' in South Waziristan, supra note 231;

Roggio,

North Waziristan Drone Strike Kills 4 'Militants', supra note 231; Roggio, US Drones Kill 15 in

North Waziristan

, supra note 231; Bill Roggio, US Drones Strike in Miramshah's Bazaar, Kill 3

47

practice of labeling all drone victims as "Taliban/Al Qaeda" unless they are specifically

identified as civilians,

236 combined with its reliance on demonstrably untrustworthy

government reports corroborated by comments from anonymous US intelligence

sources, raises questions about whether its drone strike statistics underestimate civilian

deaths.

N

EW AMERICA FOUNDATION

New America Foundation's

Year of the Drone project—the most widely cited in the US

of the three strike-tracking sources—currently estimates that 152 to 191 civilians have

been killed by drones since 2004, only slightly higher than

The Long War Journal's

estimate.

237 One of the New America Foundation's directors, Peter Bergen, has made

headlines recently as a national security analyst for CNN, using New America

Foundation's data to argue that civilian death rates due to drone strikes have dropped to

single-digit percentages,

238 and that drones have caused no civilian deaths in Pakistan in

2012.

239 Scrutiny of both assertions has since revealed omissions and inconsistencies in

New America Foundation's dataset, calling its widely publicized conclusions into

question.

240

Militants

, LONG WAR JOURNAL (June 14, 2012),

http://www.longwarjournal.org/archives/2012/06/us_drones_strike_in_1.php.

236

Weinberger, supra note 233 (quoting Long War Journal analyst Bill Roggio).

237

Civilian death toll estimates are a recent addition to the Year of the Drone website, which, until August

2012, tallied all drone-related deaths as "militant" and "others."

See Year of the Drone, supra note 221 (as

it appeared through August 12, 2012) (copy on file with authors).

238

Bergen, along with fellow New America Foundation analyst Jennifer Rowland, stated in March 2012

that the 2011 civilian drone strike casualty rate in Pakistan was 7%. Peter Bergen & Jennifer Rowland,

CIA

Drone War in Pakistan in Sharp Decline

, CNN (Mar. 28, 2012),

http://us.cnn.com/2012/03/27/opinion/bergen-drone-decline/index.html?hpt=op_t1. In June 2012,

Bergen and Rowland said the rate was actually 5.5%, but did not point out the adjustment or explain how

they arrived at the lower figure. Peter Bergen & Jennifer Rowland,

Obama Ramps Up Covert War in

Yemen

, CNN (June 12, 2012), http://edition.cnn.com/2012/06/11/opinion/bergen-yemen-dronewar/

index.html?iref=allsearch. In July 2012, they raised the 2011 casualty rate figure to 6%, but again did

not explain the adjustment. Peter Bergen & Jennifer Rowland,

Drones Decimating Taliban in Pakistan,

CNN (July 4, 2012), http://edition.cnn.com/2012/07/03/opinion/bergen-drones-talibanpakistan/

index.html?iref=allsearch.

239

See, e.g., Peter Bergen & Jennifer Rowland, Civilian Casualties Plummet in Drone Strikes, CNN

(July 14, 2012), http://edition.cnn.com/2012/07/13/opinion/bergen-civilian-casualties/index.html.

240

See Conor Friedersdorff, CNN's Bogus Drone-Deaths Graphic, ATLANTIC MONTHLY (July 6, 2012),

http://www.theatlantic.com/politics/archive/2012/07/cnns-bogus-drone-deaths-graphic/259493/;

see

48

First, contrary to claims made on its website and in its publications, New America

Foundation's strike data do not appear to be "updated regularly" to include the most upto-

date information about the number and identities of victims killed in drone strikes.

241

Several of New America's strike descriptions going back to 2006 fail to incorporate a

number of credible (and in some cases, high-profile) reports of civilian casualties. For

example, New America Foundation reports that a strike on October 31, 2011 killed three

to four militants, and makes no mention of "civilian" or "unknown" casualties.

242 That

strike, however, was widely reported to have killed two civilian teenagers, 16-year old

Tariq Aziz and his cousin Waheed Khan—a fact that has been reported in a variety of

western and Pakistani media outlets including

BBC, ABC, The Guardian, and Dawn.243

Similarly, the New America Foundation website reports that a June 15, 2011 strike on a

vehicle outside Tapi village killed three to eight militants, and makes no mention of

"civilian" or "other" casualties.

244

also

Conor Friedersdorff, Flawed Analysis of Drone Strike Data is Misleading Americans, ATLANTIC

M

ONTHLY (July 18, 2012), http://www.theatlantic.com/politics/archive/2012/07/flawed-analysis-ofdrone-

strike-data-is-misleading-americans/259836/ (citing to primary research carried out by Sarah

Knuckey and Christopher Holland, contributors to this report); Chris Woods,

Analysis: CNN Expert's

Civilian Drone Death Numbers Don't Add Up

, THE BUREAU OF INVESTIGATIVE JOURNALISM (July 17, 2012),

http://www.thebureauinvestigates.com/2012/07/17/analysis-cnn-experts-civilian-drone-death-numbersdont-

add-up/.

241

Peter Bergen & Jennifer Rowland, CIA Drone War in Pakistan in Sharp Decline, CNN (Mar. 28, 2012),

http://us.cnn.com/2012/03/27/opinion/bergen-drone-decline/index.html?hpt=op_t1 (claiming website

is "up-to-date"); P

ETER BERGEN & KATHERINE TIEDEMANN, THE YEAR OF THE DRONE: AN ANALYSIS OF US

D

RONE STRIKES IN PAKISTAN, 2004-2010 (2010), available at

http://counterterrorism.newamerica.net/sites/newamerica.net/files/policydocs/bergentiedemann2.pdf;

The Year of the Drone

, supra note 221.

242

2011: The Year of the Drone, NEW AMERICA FOUNDATION,

http://counterterrorism.newamerica.net/drones/2011.

243

See, e.g., Pratap Chatterjee, The CIA's Unaccountable Drone War Claims Another Casualty, GUARDIAN

(Nov. 11, 2011), http://www.guardian.co.uk/commentisfree/cifamerica/2011/nov/07/cia-unaccountabledrone-

war; Orla Guerin,

Pakistani Civilian Victims Vent Anger Over US Drones, BBC (Nov. 3, 2011),

http://www.bbc.co.uk/news/15553761; Nick Schifrin,

Was Teen Killed by CIA Drone a Militant—or

Innocent Victim?

, ABC NEWS (Dec. 31, 2011), http://abcnews.go.com/Blotter/tariq-khan-killed-ciadrone/

story?id=15258659#.T8LWW5lYvuV;

UK Drone Strikes Must Stop: UK Lawyer, DAWN (Nov. 8,

2011), http://dawn.com/2011/11/08/us-drone-strikes-must-stop-american-lawyer/. New America

Foundation claims that its reporting is based "on accounts from reliable media organizations with deep

reporting capabilities in Pakistan, including the New York Times, Washington Post, and Wall Street

Journal, accounts by major news services and networks—the Associated Press, Reuters, Agence France-

Presse, CNN, and the BBC—and reports in the leading English-language newspapers in Pakistan—the

Daily Times, Dawn, the Express Tribune, and the News."

The Year of the Drone, supra note 221.

244

2011: The Year of the Drone, supra note 242.

49

However, within days of the attack, at least some credible Pakistani media outlets

reported that the strike killed civilians, later identified as Akram Shah, Sherzada, Umar

(or Amar) Khan, Irshad Khan, and Atiq-ur-Rehman (Tariq).

245 We detail the

circumstances of that strike in the Narrative Section of the Living Under Drones Chapter

of this report.

246

In July 2012, an article by

TBIJ also pointed out several other glaring omissions from

New America Foundation's data.

247 These included the confirmed deaths of dozens of

children in 2006,

248 and seven civilian deaths confirmed by an AP news investigation249

to which Bergen himself, along with co-author Jennifer Rowland, had cited in their CNN

piece.

250 TBIJ had brought several of these errors to New America's attention over the

previous two years, but New America Foundation had not made any changes or updates

in response until very recently. In August 2012, possibly in response to

TBIJ's criticisms,

New America Foundation updated its website and incorporated some reports of civilian

deaths that it had previously omitted, including the 69 children killed in a single strike

in 2006.

251 Others, such as the seven civilian casualties on August 14, 2010 that have

been confirmed by an independent

AP investigation,252 were still absent at this

writing.

253 "The cumulative effect of all these omissions and errors," observed TBIJ's

245

See, e.g., NWA Tribesmen Protest Drone Attack Casualties, NEWS (June 17, 2011),

http://www.thenews.com.pk/TodaysPrintDetail.aspx?ID=52979&Cat=7&dt=6/17/2011 (describing the

victims, which it identified as four, as a "driver," an "owner of an auto spare-parts shop," a "student," and

a man "who was running a medical store");

Tribesmen Protest Drone Attacks, DAWN (June 17, 2011),

http://dawn.com/2011/06/17/tribesmen-protest-drone-attacks/ (noting, two days after the strike, that

"enraged tribesmen blocked Bannu-Miramshah Road on Thursday [June 16] to protest killing of innocent

people"). Note, though, that initial accounts in Western media depicted those killed as militants.

See, e.g.,

Drones Said to Kill 15 Militants in Pakistan

, BOSTON.COM (June 16, 2011); 15 Killed in Two Suspected

Drone Strikes

, CNN (June 15, 2011),

http://edition.cnn.com/2011/WORLD/asiapcf/06/15/pakistan.drone.strike/index.html; Hasbanullah

Khan,

US Drone Kill Eight Militants in Pakistan, AFP (June 15, 2011),

http://www.google.com/hostednews/afp/article/ALeqM5jJGoBfRYzeaAzuAc88gIioBa3Ysg?docId=CNG.

921d971040a618e5fd16673c1ea984a7.501&hl=en&lr=all;

see also infra Chapter 3: Living Under Drones.

246

Id.

247

Woods, Analysis: CNN Expert's Civilian Drone Death Numbers Don't Add Up, supra note 240.

248

At the time TBIJ published its article, New America Foundation's total overall civilian casualty figures

failed to include the deaths of 69 children killed in a single US drone strike in October 2006, whose names

and ages had been published by Pakistani newspapers in the weeks after the attack.

249

See Sebastian Abbot, New Light on Drone War's Death Toll, ASSOCIATED PRESS (Feb. 25, 2012).

250

Bergen & Rowland, Civilian Casualties Plummet in Drone Strikes, supra note 239.

251

The Year of the Drone, supra note 221.

252

Abbot, supra note 249.

253

2010: The Year of the Drone, NEW AMERICA FOUNDATION,

http://counterterrorism.newamerica.net/drones/2010 (last visited Sept. 9, 2012).

50

Chris Woods, "is that [New America Foundation's] data substantially under-estimates

both the overall numbers of those killed, and the reports of civilians who have died in

Pakistan strikes."

254

In addition to its failure to update its database regularly, the underlying data relied upon

by New America Foundation must be scrutinized. New America Foundation's

Year of

the Drone

project is a valuable resource. However, because its data consist of a

collection of news reports, the conclusions that can definitively be drawn from analyzing

that dataset are limited and must be attenuated in important ways. For example, when

Bergen and Rowland asserted in their July 14, 2012

CNN column that New America's

data showed no civilian deaths in 2012,

255 our team reviewed every news article New

America linked to on its website in support of its 2012 drone strike statistics.

256 The

inadequacies in this underlying data (detailed below) mean that it should not be used to

support the conclusions drawn by Bergen and Rowland (and New America Foundation)

that there have been no civilian deaths in US drone strikes in Pakistan in 2012:

First, the articles cited by New America Foundation rely to an overwhelming

extent on information provided by anonymous officials. Our team's review of the

dataset for 2012 (the most recent strike considered being July 6, 2012) found that

anonymous officials are cited as a source for the allegation of the number of

"militants" killed in 88% of articles referenced by New America Foundation, and

are the

only source of this information in 74% of the articles. When framed as a

breakdown of sources per strike, anonymous officials are the only source of the

number of "militants" killed in 16 of the 27 drone strikes. This heavy reliance on

anonymous officials is troubling given the demonstrated unreliability of official

reporting;

257

254

Woods, Analysis: CNN Expert's Civilian Drone Death Numbers Don't Add Up, supra note 240.

255

Bergen & Rowland, Civilian Casualties Plummet in Drone Strikes, supra note 239.

256

See The Year of the Drone, supra note 221; At the time our review was conducted, New America

Foundation had reported 27 strikes in 2012, the most recent on July 6, 2012. Of the 107 links cited in

support of New America's data, ten were broken, and 11 corresponded to more than one strike. This left

86 articles from 13 western and Pakistani news agencies to support Bergen's July 14 statement. It bears

noting that

TBIJ cites 344 sources for its data on the same 27 strikes. See Obama 2012 Pakistan Strikes,

T

HE BUREAU OF INVESTIGATIVE JOURNALISM, http://www.thebureauinvestigates.com/2012/01/11/obama-

2012-strikes/.

257

See also supra notes 156-175 and accompanying text (discussing the demonstrated unreliability of US

official reports of all "militant" death tolls). Pakistani intelligence officials, who are often cited as sources

for strike information, may be similarly unreliable and prone to overstate "militant" casualties and

understate civilian casualties because of the negative public perception in Pakistan that they are complicit

in US killings of civilians.

51

Second, the conclusion that no civilians have been killed in 2012 overlooks the

problem of identification referenced in a number of the articles in the dataset. In

15 articles, it was noted that those killed could not be identified or that the

identities of victims were not known. For example, in one such instance, an

anonymous official stated that: "Fifteen militants were killed in a dawn strike on

a compound. The bodies of those killed were unable to be identified."

Furthermore, 18 articles in the dataset refer to the object of attack as being

"destroyed", reinforcing concerns about how the number of persons killed and

their identities could be known.

Thus, what

can fairly be concluded from analyzing New America Foundation's dataset is

that, according to anonymous officials quoted in a set of collected news reports, there

have been no civilian deaths reported in 2012.

New America Foundation's finding of no civilians killed in 2012 is also troubling given

that "reputable news sources"

258 have suggested the possibility of civilian casualties in

six of the 27 strikes that inform New America Foundation's 2012 statistics.

259 Those

sources include

Reuters, Agence France-Presse, The News, and Dawn,260 all of which

New America Foundation has found reliable on other occasions when they reported only

"militant" casualties.

261 Bergen and Rowland's July 14 CNN piece does not explain why

they chose to disregard those news sources when they report civilian casualties.

262

Instead, Bergen and Rowland attempt to head off criticism by singling out

TBIJ and

dismissing their contradictory estimate of three to 24 civilian casualties as coming "in

part from reports provided by an unreliable Pakistani news outlet as well as the claims

of a local Taliban commander."

263 TBIJ explained in response that the "unreliable

Pakistani news outlet" must refer to either

Dawn, The Nation, or The News, all of which

258

Bergen & Rowland, Civilian Casualties Plummet in Drone Strikes, supra note 239 (explaining that

New America Foundation's data is drawn from "reputable news sources").

259

According to TBIJ, there were indications of civilian casualties in strikes on February 9, 2012; May 5,

2012; May 24, 2012; June 2, 2012; June 3, 2012; and July 6, 2012.

Obama 2012 Pakistan Strikes, supra

note 256.

TBIJ also reports possible civilian casualties in strikes on July 23, 2012 and July 29, 2012,

which took place after Bergen's article was published.

Id.

260

See, e.g., Hasbanullah Khan, Five Militants Killed by US Drone in Pakistan, AGENCE FRANCE-PRESSE

(May 24, 2012); Khan & Yusufzai,

supra note 180; Twenty Die in Double Drone Attack, DAWN (July 7,

2012), http://dawn.com/2012/07/07/twenty-die-in-double-drone-attack/;

US Drone Strike Kills Militant

in Pakistan, Officials Say

, JERUSALEM POST (Feb. 2, 2012),

http://www.jpost.com/LandedPages/PrintArticle.aspx?id=257117.

261

See The Year of the Drone, supra note 221.

262

See Bergen & Rowland, Civilian Casualties Plummet in Drone Strikes, supra note 239.

263

Id.

52

New America Foundation draws from on a regular basis, and that the Taliban

commander's claim (which appeared in only one of the six strikes in which civilian

casualties were reported, and which referred to only two civilians) appeared in an article

from

Reuters.264 Bergen and Rowland did not say where they believe the other part of

TBIJ's

estimate came from.265

Conor Friedersdorf of the

Atlantic Monthly has questioned the reliance of Bergen and

Rowland and the New America Foundation on "getting an unnamed official to state the

number of deaths" as "deep reporting" worthy of inclusion in their database.

266 In

particular, Friedersdorf juxtaposes that reliance with the journalists' apparent exclusion

of further reporting above and beyond anonymous official quotes as unreliable.

267 For

example, neither the

Year of the Drone website nor any of Bergen and Rowland's

articles mentions the reported deaths of between three and eight civilian worshippers at

a mosque on May 24, 2012. The deaths were reported by both

The News, a prominent

Pakistani newspaper, and the UK's

Channel 4.268 Both quoted detailed descriptions of

the strike and of the civilian casualties directly from a local eyewitness that

The News

identifies by name. That level of detail and local investigation constitutes a far "deeper"

report than the terse descriptions from anonymous officials, with one exception, that

appear in the articles relied upon by New America Foundation, which in turn simply

state the number of "militants" or "suspected militants" killed and their nationalities.

269

264

Woods, Analysis: CNN Expert's Civilian Drone Death Numbers Don't Add Up, supra note 240.

265

Bergen & Rowland, Civilian Casualties Plummet in Drone Strikes, supra note 239.

266

Friedersdorf, Flawed Analysis of Drone Strikes is Misleading Americans, supra note 240.

267

Id.

268

Drone Strike Hits Pakistan Mosque, Say Locals, supra note 180; Khan & Yusufzai, supra note 180;

Woods,

Analysis: CNN Expert's Civilian Drone Death Numbers Don't Add Up, supra note 240. French

wire service Agence France-Presse reported the damage to the mosque and said that worshippers there

may have been injured. Hasbanullah Khan,

US Drone Strike Kills 8 in Pakistan, AGENCE FRANCE-PRESSE

(May 24, 2012).

269

Haq Nawaz Khan & Richard Leiby, US Drone Strike in Pakistan Kills 10 Suspected Militants, WASH.

P

OST (May 24, 2012), http://www.washingtonpost.com/world/asia_pacific/us-drone-strike-kills-10-

suspected-militants-in-pakistan/2012/05/24/gJQAQbpRmU_story.html; Salman Masood,

Drone Strikes

Continue in Pakistan as Tension Increases and Senate Panel Cuts Aid

, N.Y. TIMES (May 24, 2012),

http://www.nytimes.com/2012/05/25/world/asia/pakistan-says-us-drone-strike-kills-suspectedmilitants.

html?_r=1&ref=world; Haji Mujtaba,

US Drone Strike Kills 10 in Northwest Pakistan: Officials,

R

EUTERS (May 24, 2012), http://www.reuters.com/article/2012/05/24/us-pakistan-droneidUSBRE84N03I20120524;

Pakistan Says US Drone Kills 10 Militants

, USA TODAY (May 24, 2012),

http://www.usatoday.com/news/world/story/2012-05-24/Pakistan-drone/55179756/1?csp=34news. The

New York Times

went deeper than the other reports, and provides information about the strike from local

residents reached by telephone, who stated that some of the strike victims were "Uzbek fighters who

belonged to the Islamic Movement of Uzbekistan." Masood,

supra.

53

T

HE BUREAU OF INVESTIGATIVE JOURNALISM

The Bureau of Investigative Journalism

maintains a much more dynamic database than

either New America Foundation or

The Long War Journal, updating its strike

information frequently to reflect new information as it comes to light.

270 This frequent

updating, together with

TBIJ's own investigations, makes its data far more reliable than

other aggregating sources. While

TBIJ's data are also highly transparent and its

investigations more thorough than others, its aggregation of information from news

articles faces the same problems as described above, and its full body of strike data is

not, and indeed cannot be, wholly accurate (nor does

TBIJ purport that it is).

As of August 1, 2012,

TBIJ estimated that between 482 and 849 civilians have been

killed by drones in Pakistan since 2004. That estimate represents the full range of

civilian casualties credibly reported in reliable sources, some of which

TBIJ has

corroborated with its own field investigations in Pakistan and with information gathered

by "credible researchers and lawyers."

271 The use of these corroborating sources to

supplement data drawn from press accounts sets

TBIJ apart from both The Long War

Journal

and New America Foundation.

TBIJ

's media datasets are also more thorough and comprehensive than both New

America Foundation and

The Long War Journal. As discussed above, New America

Foundation linked to only 107 news articles in support of its data on the first 27 strikes

of 2012, of which eleven were duplicates.

272 TBIJ, by contrast, links to 344 sources cited

in support of those same 27 strikes, and provides information on a handful of additional

possible strikes that have not yet been verified.

273 The Long War Journal does not

reveal all of the sources used to compile its database, and rarely cites to more than two

270

For example, TBIJ's entry for a recent cluster of strikes that took place on July 29, 2012 was updated

two days later to include the names of three local villagers killed in the attack, once those names were

reported by

The News, a major Pakistani daily newspaper. See Obama 2012 Pakistan Strikes, supra note

256;

Three Drone Victims Laid to Rest in FR Bannu, NEWS (July 31, 2012),

http://www.thenews.com.pk/Todays-News-2-123753-Three-drone-victims-laid-to-rest-in-FR-Bannu.

Over two weeks after the attack took place,

New America Foundation still had not reported it, and The

Long War Journal

had limited its report to include only the subset of missile strikes that hit an alleged

Uzbek compound.

See Bill Roggio, 6 Uzbeks Killed in North Waziristan Drone Strike, LONG WAR JOURNAL

(July 29, 2012), http://www.longwarjournal.org/archives/2012/07/six_uzbeks_killed_in.php;

The Year

of the Drone

, supra note 221.

271

Covert Strikes in Pakistan, Yemen, and Somalia—Our Methodology, THE BUREAU OF INVESTIGATIVE

J

OURNALISM, http://www.thebureauinvestigates.com/2011/08/10/pakistan-drone-strikes-themethodology2/

(last updated March 27, 2012).

272

See The Year of the Drone, supra note 221.

273

See Obama 2012 Pakistan Strikes, supra note 256.

54

or three external sources in any given report.

274 TBIJ is also more transparent than

either New America Foundation or

The Long War Journal in its reporting, providing

both high and low estimates of civilian and unspecified deaths for each strike. It also

quotes heavily from reports that contradict one another, thus giving a full picture of the

range of conflicting stories about each strike.

275

274

Bill Roggio, US Drones Kill 10 in Mir Ali Strike, LONG WAR JOURNAL (May 24, 2012),

http://www.longwarjournal.org/archives/2012/05/us_drones_kill_10_in_1.php.

275

Id.; See, e.g., Obama 2011 Pakistan Strikes, THE BUREAU OF INVESTIGATIVE JOURNALISM,

http://www.thebureauinvestigates.com/2011/08/10/obama-2011-strikes/ (last visited Sept. 14, 2012).

55

C

HAPTER 3: LIVING UNDER DRONES

Much of the public debate about drone strikes in Pakistan has focused narrowly on

whether strikes are 'doing their job'—i.e., whether the majority of those killed are

"militants."

276 That framing, however, fails to take account of the people on the ground

who live with the daily presence of lethal drones in their skies and with the constant

threat of drone strikes in their communities. Numerous other reports have highlighted

the disastrous impacts of Taliban and other armed actor operations in Pakistan.

277

Those impacts must also factor into the formulation of governance and military policy in

Federally Administered Tribal Areas (FATA). This report, however, aims to draw

attention to a critical gap in understanding, specifically about life under drones and the

socio-economic impacts of drone strikes on civilians in North Waziristan. Available

evidence suggests that these impacts are significant, and challenges the prevailing US

government and media narrative that portrays drones as pinpoint precision weapons

with limited collateral impact. It is crucial that broader civilian impacts and the voices of

those affected be given due weight in US debates about drones.

The most direct impacts of strikes, in addition to injuries and killings, include property

damage, and often severe economic hardship and emotional trauma for injured victims

and surviving family members. Importantly, those interviewed for this report also

described how the presence of drones and capacity of the US to strike anywhere at any

time led to constant and severe fear, anxiety, and stress, especially when taken together

with the inability of those on the ground to ensure their own safety. Further, those

interviewed stated that the fear of strikes undermines people's sense of safety to such an

extent that it has at times affected their willingness to engage in a wide variety of

activities, including social gatherings, educational and economic opportunities, funerals,

and that fear has also undermined general community trust. In addition, the US practice

of striking one area multiple times, and its record of killing first responders, makes both

community members and humanitarian workers afraid to assist injured victims.

276

See Numbers, infra Chapter 2: Numbers.

277

Id.

56

V

OICES FROM BELOW: ACCOUNTS OF THREE DRONE STRIKES

The most immediate consequence of drone strikes is, of course, death and injury to

those targeted or near a strike. The missiles fired from drones kill or injure in several

ways, including through incineration,

278 shrapnel,279 and the release of powerful blast

waves capable of crushing internal organs.

280 Those who do survive drone strikes often

suffer disfiguring burns and shrapnel wounds, limb amputations, as well as vision and

hearing loss.

281

This section sets out firsthand narrative accounts of three specific drone strikes for

which there is considerable evidence of significant civilian casualties.

282 The narratives

draw upon interviews, as well as corroborating evidence from other independent

278

See, e.g., Yancy Y Phillips & Joan T. Zajchuk, The Management of Primary Blast Injury, in

C

ONVENTIONAL WARFARE: BALLISTIC, BLAST AND BURN INJURIES 297 (1991) ("The thermal pulse from a

detonation may burn exposed skin, or secondary fires may be started by the detonation and more serious

burns may be suffered.");

AGM-114N Metal Augmented Charge (MAC) Thermobaric Hellfire,

G

LOBALSECURITY.ORG, http://www.globalsecurity.org/military/systems/munitions/agm-114n.htm (last

visited Aug. 17, 2012) ("The new [AGM-114N Thermobaric Hellfire] warhead contains a fluorinated

aluminum powder layered between the warhead casing and the PBXN-112 explosive fill. When the PBXN-

112 detonates, the aluminum mixture is dispersed and rapidly burns. The resultant sustained high

pressure is extremely effective against enemy personnel and structures.");

Explosions and Blast Injuries:

A Primer for Clinicians

, CENTER FOR DISEASE CONTROL AND PREVENTION,

http://www.bt.cdc.gov/masscasualties/explosions.asp (last visited on Sept. 17, 2012) (outlining one of the

types of blast injuries as "burns (flash, partial, and full thickness")).

279

See, e.g., Phillips & Zajchuk, supra note 278, at 296 ("[V]ictims of an open-air blast will usually also

have penetrating or non-penetrating secondary blast injuries from fragments or objects that have been

hurled through the air from the force of the blast."); David Hambling,

Why was Pakistan Drone Strike so

Deadly?

, WIRED (June 24, 2009), http://www.wired.com/dangerroom/2009/06/why-was-pakistandrone-

strike-so-deadly/ (describing how drone-launched missiles have a thick steel casing surrounding an

explosive core, such that "when the bomb detonates, the casing blows up like a balloon before bursting

and spraying high-velocity steel fragments in all directions. It is these fragments, rather than blast, that do

most of the damage");

Explosions and Blast Injuries, supra note 278 (identifying "penetrating ballistic

(fragmentation) or blunt injuries" as a possible type of blast injury).

280

See, e.g., Phillips, supra note 278, at 296 ("[T]he detonation of explosive munitions can create

pressure waves that are powerful enough to injure the internal organs of casualties who are directly

exposed to them. This injury—called primary blast injury (PBI)—may debilitate or kill the casualty by

causing severe damage to the gas-containing organs of the body.");

AGM-114N Metal Augmented Charge,

supra

note 278 (describing the improved killing power of the "AGM-114 Hellfire missile [which] has a

sustained pressure wave [that] propagates throughout a structure to extend the lethal effects of the

warhead detonation.");

Explosions and Blast Injuries, supra note 278 (listing "blast lung," and

"abdominal hemorrhage and perforation" among injuries resulting from blasts).

281

See supra notes 278- 280 and accompanying text; Norman Rich, Missile Injuries, 139 AM. J. OF

S

URGERY 414 (1980).

282

In addition to the three strikes highlighted in this section, Appendix A provides brief narratives from

strike survivors and individuals who have witnessed or lost relatives in drone strikes.

57

investigations, media accounts, and submissions to the United Nations, and courts in

the UK and Pakistan.

The narratives provide detailed and stark accounts of the consequences such strikes

have on those hit, those near, and their families.

M

ARCH 17, 2011

On the morning of March 17, 2011, the US deployed a drone to fire at least two missiles

into a large gathering near a bus depot in the town of Datta Khel, North Waziristan. To

this day, US officials publicly insist that all those killed were insurgents.

283 That

position, however, is contradicted by a range of other sources, including the Pakistani

military,

284 an independent investigation by the Associated Press,285 interviews with

attorneys, and the testimony of nine witnesses, survivors, and family members gathered

283

Salman Masood & Pir Zubair Shah, CIA Drones Kill Civilians in Pakistan, N.Y. TIMES (Mar. 17, 2011),

http://www.nytimes.com/2011/03/18/world/asia/18pakistan.html ("American officials on Thursday

sharply disputed Pakistan's account of the strikes and the civilian deaths, contending that all the people

killed were insurgents.");

see also Sebastian Abbot, AP Impact: New Light on Drone War's Death Toll,

G

UARDIAN (Feb. 25, 2012), http://www.guardian.co.uk/world/feedarticle/10112674 ("US officials who

were shown the AP's findings [of civilian deaths in the ten deadliest attacks in North Waziristan between

August 2010 and February 2012, including the March 17, 2011 incident] rejected the accounts of any

civilian casualties, but declined to be quoted by name."); Scott Shane,

Contrasting Reports of Drone

Strikes

, N.Y. TIMES (Aug. 11, 2011), http://www.nytimes.com/2011/08/12/world/asia/12droneside.html

(quoting an unnamed US official as stating: "There's no question the Pakistani and US government have

different views on the outcome of this strike. The fact is that a large group of heavily armed men, some of

whom were clearly connected to Al Qaeda and all of whom acted in a manner consistent with A.Q.-linked

militants, were killed."). The US position appears to reflect the Obama administration's controversial

practice of classifying "all military-age males in a strike zone as combatants . . . unless there is explicit

intelligence posthumously proving them innocent." Jo Becker & Scott Shane,

Secret 'Kill List' Proves a

Test of Obama's Principles and Will

, N.Y. TIMES (May 29, 2012),

http://www.nytimes.com/2012/05/29/world/obamas-leadership-in-war-on-alqaeda.

html?pagewanted=all.

284

See Masood & Shah, supra note 283 (quoting Pakistani military chief, General Ashfaq Parvez Kayani,

as saying immediately after the strike: "It is highly regrettable that a jirga of peaceful citizens, including

elders of the area, was carelessly and callously targeted with complete disregard to human life.").

285

See Abbot, supra note 283.

58

for this report. This evidence suggests that at least 42 were killed, mostly civilians,

286

and another 14 injured.

287

According to those we interviewed, on March 17, some 40 individuals gathered in Datta

Khel town center. They included important community figures and local elders, all of

whom were there to attend a

jirga—the principal social institution for decision-making

and dispute resolution in FATA. The

jirga on March 17 was convened to settle a dispute

over a nearby chromite mine.

288 All of the relevant stakeholders and local leaders were

in attendance, including 35 government-appointed tribal leaders known as

maliks, as

well as government officials, and a number of

khassadars (government employees

administered at the local level by

maliks who serve as a locally recruited auxiliary police

force).

289 Four men from a local Taliban group were also reportedly present, as their

involvement was necessary to resolve the dispute effectively

.290 Malik Daud Khan, a

respected leader and decorated public servant, chaired the meeting.

291

The

jirga had been convened in Datta Khel's Nomada bus depot,292 an open space in the

middle of town large enough to accommodate over 40 people as they sat in two large

circles about 12 feet apart.

293 Though drones were hovering daily over North Waziristan,

those at this meeting said they felt "secure and insulated" from the threat of drones,

because in their assessment at the time, "drones target terrorists or those working

286

Obama 2011 Pakistan Strikes, THE BUREAU OF INVESTIGATIVE JOURNALISM,

http://www.thebureauinvestigates.com/2011/08/10/obama-2011-strikes/(last visited Sep. 14, 2012);

Abbot,

supra note 283.

287

See Obama 2011 Pakistan Strikes, supra note 286.

288

Interview with Khalil Khan, Noor Khan, & Imran Khan, in Islamabad, Pakistan (Feb.26, 2012).

Chromite is a valuable resource in the region, and a major source of employment. According to the FATA

government website, 31,830 tons of chromite were produced in 2003-04, the latest date for which figures

are available.

Department of Minerals, GOVERNMENT OF PAKISTAN FEDERALLY ADMINISTERED TRIBAL AREA

S

ECRETARIAT, http://fata.gov.pk/index.php?option=com_content&view=article&id=78&Itemid=81 (last

visited Aug. 17, 2012).

289

Interview with Khalil Khan, Noor Khan, & Imran Khan, in Islamabad, Pakistan (Feb.26, 2012).

290

Sebastian Abbot, AP Impact: New Light on Drone War's Death Toll, ASSOCIATED PRESS (Feb. 26,

2012), http://news.yahoo.com/ap-impact-light-drone-wars-death-toll-150321926.html.

291

More Petition High Court Against Drone Attacks, DAWN (May 9, 2012),

http://dawn.com/2012/05/10/more-petition-high-court-against-drone-attacks/ (reporting on the

petition of Noor Khan, son of Malik Daud Khan, in the Peshawar High Court against the Federation of

Pakistan, Pakistan's Ministry of Foreign Affairs, and Pakistan's Ministry of Defence).

292

Chris Woods & Christina Lamb, Obama Terror Drones: CIA Tactics in Pakistan Include Targeting

Rescuers and Funerals

, THE BUREAU OF INVESTIGATIVE JOURNALISM (Feb. 4, 2012),

http://www.thebureauinvestigates.com/2012/02/04/obama-terror-drones-cia-tactics-in-pakistaninclude-

targeting-rescuers-and-funerals/.

293

Interview with Mohammad Nazir Khan, in Islamabad, Pakistan (Feb. 26, 2012).

59

against the government."

294 This, in contrast, was a jirga, a government-sanctioned

meeting, held to ensure "no problems occurred in [the] area and no-one would pose

problems for the government."

295 According to a Pakistani military commander in North

Waziristan, Brigadier Abdullah Dogar, the

maliks had even taken care to alert the local

military post of the planned

jirga ten days beforehand.296

At approximately 10:45 am, as the two groups were engaged in discussion, a missile

fired from a US drone hovering above struck one of the circles of seated men.

297 Ahmed

Jan, who was sitting in one of two circles of roughly 20 men each, told our researchers

that he remembered hearing the hissing sound the missiles made just seconds before

they slammed into the center of his group.

298 The force of the impact threw Jan's body a

significant distance, knocking him unconscious, and killing everyone else sitting in his

circle.

299 Several additional missiles were fired, at least one of which hit the second

circle.

300 In all, the missiles killed a total of at least 42 people.301 One of the survivors

from the other circle, Mohammad Nazir Khan, told us that many of the dead appeared

to have been killed by flying pieces of shattered rocks.

302 Another witness, Idris Farid,

recalled that "everything was devastated. There were pieces—body pieces—lying around.

There was lots of flesh and blood."

303

Khalil Khan, the only son of Malik Hajji Babat, one of the

khassadars present at the

jirga

, was in the Datta Khel bazaar when he heard about the strike.304 "We were told in

plain words that none of the elders that had attended survived. They were all destroyed,

all finished."

305 Khalil Khan immediately went to the Nomada depot to try to find his

294

Interview with Khalil Khan, Noor Khan, & Imran Khan, in Islamabad, Pakistan (Feb.26, 2012).

295

Id.

296

Chris Woods & Christina Lamb, Obama Terror Drones: CIA Tactics in Pakistan Include Targeting

Rescuers and Funerals

, THE BUREAU OF INVESTIGATIVE JOURNALISM (Feb. 4, 2012),

http://www.thebureauinvestigates.com/2012/02/04/obama-terror-drones-cia-tactics-in-pakistaninclude-

targeting-rescuers-and-funerals/.

297

Interview with Ahmed Jan, in Islamabad, Pakistan (Feb. 26, 2012); Interview with Mohammad Nazir

Khan, in Islamabad, Pakistan (Feb. 26, 2012).

298

Id.

299

Id.

300

Id.; see also Interview with Khalil Khan, Noor Khan, & Imran Khan, in Islamabad, Pakistan (Feb.26,

2012).

301

See Obama 2011 Pakistan Strikes, supra note 286; Abbot, supra note 283.

302

Interview with Mohammad Nazir Khan, in Islamabad, Pakistan (Feb. 26, 2012).

303

Interview with Idris Farid (anonymized name), in Islamabad, Pakistan (Feb. 26, 2012).

304

Interview with Khalil Khan, Noor Khan, & Imran Khan, in Islamabad, Pakistan (Feb.26, 2012).

305

Id.

60

father.

306 When he arrived at the scene of the strike, he found injured victims and the

bus depot in flames.

307 Unable to identify the body parts lying on the ground, all Khalil

Khan could do was "collect pieces of flesh and put them in a coffin."

308 Idris Farid, who

survived the strike with a severe leg injury, explained how funerals for the victims of the

March 17 strike were "odd and different than before."

309 The community had to collect

[the victims'] body pieces and bones and then bury them like that," doing their best to

"identify the pieces and the body parts" so that the relatives at the funeral would be

satisfied they had "the right parts of the body and the right person."

310

The trauma of the strike was felt not only by those who witnessed its immediate

aftermath, but also by the families left behind. Nearly all of those killed were the heads

of large households, who used the government allowances they received through their

positions as

maliks and khassadars to support their households and fund small

businesses. Malik Daud Khan, who led the

jirga, was a government-appointed counselor

for all of North Waziristan, serving as a political liaison between the Pakistani

government and military and the other tribal leaders.

311 He oversaw jirgas throughout

the region, and used his allowance, "which was respectable for a decent family," to

support six sons and the sons of his brothers.

312 Another malik, Ismail Khan, left behind

a family of eight, of whom only two are males old enough to work.

313 The khassadar

Hajji Babat also left behind another household of eight; his son now struggles to support

them.

314 Because these men held government positions reserved for elders with

"experience and years of wisdom," their sons cannot take over their offices.

315 The sons

have little hope of finding employment that would provide a standard of living afforded

by the allowance of a

malik or a khassadar.316 Babat's son, Khalil Khan, who spent over

a decade working as a driver in the United Arab Emirates, told our research team that he

often thinks of trying to go abroad again so that he can earn money to support

306

Id.

307

Id.

308

Id.

309

Interview with Idris Farid (anonymized name), in Islamabad, Pakistan (Feb. 26, 2012).

310

Id.

311

Interview with Khalil Khan, Noor Khan, & Imran Khan, in Islamabad, Pakistan (Feb.26, 2012).

312

Id.

313

Id.

314

Id.

315

Id.

316

See id.

61

himself.

317 "[But] if I go," he worries, "what will happen to my family?"318 The Pakistani

government offered to compensate the families with three

lakhs (300,000 rupees, or

approximately US $3,200) for each man killed, but most did not take the

compensation.

319 "[O]ur elders were worth much more than that. . . . [W]e had lost an

entire community of elders."

320

Some men who survived are now unable to work or earn the living they could before the

strike. Ahmed Jan, a

malik who used to supplement his allowance by working as a

driver, woke up in a hospital in Peshawar after the strike and learned he needed five to

six

lakhs (approximately US $5,300 to US $6,350) worth of surgery to implant a rod in

his leg and to stop the bleeding from his nose and face.

321 Since then, he has lost most of

his hearing and the use of one foot.

322 Unable to operate a car, he now depends on his

sons, who are also drivers, to support his household.

323 Idris Farid, in addition to living

with rods implanted in his leg, told us that the trauma of the strike has caused him to

forget "the little bit of education that I [had] gotten when I was little," and has left him

terrified of loud noises "because I think it might be a drone."

324

The precise number of people who died in the March 17, 2011 strike has never been

determined, though nearly all available sources—including the survivors with whom our

researchers spoke—put it at close to 40 or higher.

325 An independent investigation by

the

Associated Press put the number at 42.326 Pakistani intelligence officials initially

317

Id.

318

Id.

319

Interview with Khalil Khan, Noor Khan, & Imran Khan, in Islamabad, Pakistan (Feb.26, 2012); see also

Interview with Mohammad Nazir Khan, in Islamabad, Pakistan (Feb. 26, 2012).

320

Interview with Khalil Khan, Noor Khan, & Imran Khan, in Islamabad, Pakistan (Feb.26, 2012).

321

Interview with Ahmed Jan, in Islamabad, Pakistan (Feb. 26, 2012).

322

Id.

323

Id.

324

Interview with Idris Farid (anonymized name), in Islamabad, Pakistan (Feb. 26, 2012).

325

See, e.g., Interview with Idris Farid (anonymized name), in Islamabad, Pakistan (Feb. 26, 2012).

(estimating 37 dead); Interview with Ahmed Jan, in Islamabad, Pakistan (Feb. 26, 2012) (estimating at

least 35 and fewer than 40 dead);

US Drone Strike 'Kills 40' in Pakistani Tribal Region, BBC (Mar. 17,

2011), http://www.bbc.co.uk/news/world-south-asia-12769209; Tom Wright & Rehmat Mehsud,

Pakistan Slams US Drone Strike

, WALL ST. J. (Mar. 18, 2011), available at

http://online.wsj.com/article/SB10001424052748703818204576206873567985708.html.

326

Abbot, supra note 290 (noting the names of all 42 and identifying 38 of them as civilians and tribal

police). Unnamed US officials disputed this number, telling the

Associated Press "the total of dead was

roughly half what villagers reported" and citing as evidence "the number visible in the monitoring before

and during the attack."

Id. However, all other available sources—including eyewitnesses, locals, and

Pakistani intelligence—report numbers closer to the

Associated Press figure. See, e.g., Dozens Die as US

62

reported that 12 or 13 of the dead were Taliban militants,

327 but the Associated Press

investigation found that it was likely only four.

328 Of those four, only one, Sherabat

Khan, has ever been identified by name.

329 TBIJ, in separate investigations, has so far

obtained the names of 24 civilians killed who died in the strike.

330

J

UNE 15, 2011

On June 15, 2011, the US launched between two and six missiles from a drone at a car

travelling on the road between Miranshah and Sirkot in North Waziristan, killing five

people.

The News, a leading Pakistani newspaper, identified four of the victims in a

story it ran two days later.

331 We were provided evidence of five victims in our

interviews, as we detail below;

TBIJ (in its own separate investigations) also identified

five victims:

332 Shahzada (or 'Sherzada', no other name), Akram Shah, Atiq-ur-Rehman

Drone Hits Pakistan Home

, AL JAZEERA (Mar. 17, 2011),

http://www.aljazeera.com/news/asia/2011/03/20113178411386630.html; Kathy Gannon, Kimberly

Dozier & Sebastian Abbot,

AP Exclusive: Timing of US Drone Strike Questioned, YAHOO! NEWS (Aug. 2,

2011), http://news.yahoo.com/ap-exclusive-timing-us-drone-strike-questioned-161145779.html;

Katherine Tiedemann,

Daily Brief: Pakistani Army Chief Condemns Deadly US Drone Strike, FOREIGN

P

OL'Y (Mar. 18, 2011),

http://afpak.foreignpolicy.com/posts/2011/03/18/daily_brief_pakistani_army_chief_condemns_deadly

_us_drone_strike.

327

Masood & Shah, supra note 283.

328

Abbot, supra note 290.

329

See, e.g., Out of the Blue: A Growing Controversy Over the Use of Unmanned Aerial Strikes,

E

CONOMIST (July 30, 2011), http://www.economist.com/node/21524916; Zia Khan, Waziristan Drone

Attack: Taliban Faction Threatens Scrapping Peace Deal

, EXPRESS TRIBUNE (Mar. 21, 2011),

http://tribune.com.pk/story/135711/waziristan-drone-attack-taliban-faction-threatens-scrapping-peacedeal/.

330

Obama 2011 Pakistan Strikes, THE BUREAU OF INVESTIGATIVE JOURNALISM, supra note 286 ("The

leader of the

jirga, Malik Daud Khan, aged 45 was among those killed. . . . In July 2011 the Bureau's

field researchers additionally identified the following as slain civilians: Gul Akbar; Mohammad Sheen;

Lewanai; Mir Zaman; Din Mohammad; Malik Tareen; Noor Ali; Zare Jan; Sadiq; Mustaqeem;

Khangai; Gulnaware; Faenda Khan; and Dindar Khan, Umark Khan, Wali Khan, Sadar and Bakhtar,

all five from the Khassadar police force. In sworn affidavits from multiple witnesses to the strike, filed

in the London High Court in March 2012, five further civilians were identified by name: Ismail Khan,

father of Imran Khan; khassadar Hajji Babat, father of Khalil Khan; Khnay Khan, father of Mir Daad

Khan; and Gul Mohammed and his son Ismael.").

331

NWA Tribesmen Protest Drone Attack Casualties, NEWS (June 17, 2011),

http://www.thenews.com.pk/TodaysPrintDetail.aspx?ID=52979&Cat=7&dt=6/17/2011 (noting the

occupations and the names of four of the victims: Akram Shah, Umar Khan, Shahzada, and Tariq (Atiqur-

Rehman)).

332

Obama 2011 Pakistan Strikes, supra note 286.

63

(nicknamed Tariq), Irshad Khan, and Umar (or Amar) Khan. According to initial press

reports, anonymous Pakistani officials stated that all those killed in the strike were

"militants".

333 US officials did not comment, even after the dead men's families and

tribesmen made international news by blocking an important roadway in protest.

334 We

interviewed five family and community members who testified that they knew those

killed.

335 Together, the five interviewees provided information on each of the five

victims, who they said were civilians.

336 Based on its own research, as well as media

accounts,

TBIJ, citing the names of each of the men above, has reported that at least five

civilians were killed in the strike.

337

According to those we interviewed, on June 15, Akram Shah drove with his cousin,

Sherzada, into the city of Miranshah.

338 Akram, a father of three in his mid-thirties, was

a former taxi driver who worked for the Pakistani Water and Power Development

Authority as a driver.

339 Sherzada was a student in his late teens or early twenties.340

333

See, e.g., 15 Killed in Two Suspected Drone Attacks, CNN (June 15, 2011),

http://edition.cnn.com/2011/WORLD/asiapcf/06/15/pakistan.drone.strike/index.html; Hasbanullah

Khan,

US Drone Kills Eight Militants in Pakistan, AGENCE FRANCE-PRESSE (June 15, 2011),

http://www.google.com/hostednews/afp/article/ALeqM5gopljIE1s-r0P90OdcLQtEy9_6-

A?docId=CNG.e930608f878ab4d4954c1738240ae4f3.321.

334

See, e.g., NWA Tribesmen Protest Drone Attack Casualties , supra note 331 (noting that hundreds of

tribesmen protested and "chanted slogans against the United States for killing innocent tribal people in

the drone attacks.");

Tribesmen Protest Drone Attacks, DAWN (June 17, 2011),

http://dawn.com/2011/06/17/tribesmen-protest-drone-attacks/ (noting, two days after the strike, that

"enraged tribesmen blocked Bannu-Miramshah Road on Thursday [June 16] to protest killing of innocent

people in US drone attacks in North Waziristan Agency").

335

Interview with Sayed Majid (anonymized name), in Peshawar, Pakistan (May 9, 2012); Interview with

Nadeem Malik (anonymized name), in Peshawar, Pakistan (May 9, 2012); Interview with Abdul Qayyum

Khan, in Peshawar, Pakistan (May 9, 2012); Interview with Ibrahim Shah, in Peshawar, Pakistan (May 9,

2012); Interview with Azhar Aslam (anonymized name), in Peshawar, Pakistan (May 9, 2012).

336

Id. Atiq-ur-Rehman (or Tariq) was known to all five interviewees; Sherzada was known by four of the

interviewees; Akram was known by three of the interviewees; Umar (or Amar) and Irshad were each

known by one interviewee.

337

Obama 2011 Pakistan Strikes, supra note 286 (noting that its own researchers in Waziristan reported

that "civilians belonging to the Zangbar family…were killed…include[ing] Shahzada," citing links to seven

media reports (two articles in

Dawn and one each in The News, CNN, Boston.com, AFP, BBC News) as

well as the UK Charity Reprieve and the South Asian Terrorism Portal (satp.org), and concluding based

upon its review of all this information that 5-6 civilians were killed in the strike).

338

Interview with Ibrahim Shah, in Peshawar, Pakistan (May 9, 2012).

339

Id.; Interview with Sayed Majid (anonymized name), in Peshawar, Pakistan (May 9, 2012); Interview

with Nadeem Malik (anonymized name), in Peshawar, Pakistan (May 9, 2012);

NWA Tribesmen Protest

Drone Attack Casualties

, supra note 331.

340

Interview with Ibrahim Shah, in Peshawar, Pakistan (May 9, 2012); Interview with Sayed Majid

(anonymized name), in Peshawar, Pakistan (May 9, 2012).

64

Both he and Akram Shah lived in the small village of Spulga, some 15 kilometers outside

of Miranshah, in a large extended-family compound headed by another cousin, a

prominent

malik.341 Atiq-ur-Rehman, a young pharmacist, ran the Razmak Medical

shop in the Miranshah bazaar.

342 Irshad Khan, a teenage student, worked in Atiq-ur-

Rehman's pharmacy.

343 Umar Khan ran a local auto parts store.344 That evening, the five

men—Akram Shah, Sherzada, Irshad Khan, Atiq-ur-Rehman, and Umar Khan—set out

from Miranshah toward Spulga and the nearby village of Sirkot in Akram's car.

345

When the car was just two or three kilometers from Sirkot, it was struck by a missile.

346

According to some press accounts, the drone operators missed their first five missile

firing attempts and chased Akram's car down the road, finally destroying it with a sixth

and final missile.

347 Other accounts state that Umar Khan escaped from the back seat

after the car was hit, only to be killed by a missile seconds later as he tried to get away

from the wreckage.

348 Nadeem Malik was at the mosque some two kilometers away

when he heard "the noise of the bombardment," and rushed to the site of the strike.

349

Several witnesses described the destruction of the car,

350 which Abdul Qayyum Khan

likened to "a sandwich bent in half."

351 Sayed Majid, whose cousin and two other

relatives were killed in the strike, and Abdul Qayyum Khan, Atiq-ur-Rehman's father,

341

Interview with Sayed Majid (anonymized name), in Peshawar, Pakistan (May 9, 2012).

342

Interview with Abdul Qayyum Khan, in Peshawar, Pakistan (May 9, 2012); Interview with Sayed Majid

(anonymized name), in Peshawar, Pakistan (May 9, 2012); Reprieve, Complaint Against the United States

of America for the Killing of Innocent Citizens of the Islamic Republic of Pakistan to the UN Human

Rights Council 10 (Feb. 23, 2012),

available at

http://reprieve.org.uk/media/downloads/2012_02_22_PUB_drones_UN_HRC_complaint.pdf?utm_so

urce=Press+mailing+list&utm_campaign=89f3db0a75-

2012_02_23_drones_UN_complaint&utm_medium=email [hereinafter Complaint to UNHRC].

343

Interview with Nadeem Malik (anonymized name), in Peshawar, Pakistan (May 9, 2012).

344

Interview with Sayed Majid (anonymized name), in Peshawar, Pakistan (May 9, 2012); see also NWA

Tribesmen Protest Drone Attack Casualties

, supra note 331.

345

See Interview with Ibrahim Shah, in Peshawar, Pakistan (May 9, 2012); see also NWA Tribesmen

Protest Drone Attack Casualties

, supra note 331; Complaint to UNHRC, supra note 342, at 10.

346

See Interview with Sayed Majid (anonymized name), in Peshawar, Pakistan (May 9, 2012).

347

Eight Killed in Waziristan Drone Attacks, PAK TRIBUNE (June 16, 2011),

http://paktribune.com/news/Eight-killed-in-Waziristan-drone-attacks-240425.html.

348

Interview with Abdul Qayyum Khan, in Peshawar, Pakistan (May 9, 2012).

349

Interview with Nadeem Malik (anonymized name), in Peshawar, Pakistan (May 9, 2012).

350

Interview with Sayed Majid (anonymized name), in Peshawar, Pakistan (May 9, 2012) ("[the car] was

destroyed. Fully destroyed. It was burned.");

see also interview with Abdul Qayyum Khan, in Peshawar,

Pakistan (May 9, 2012).

351

Interview with Abdul Qayyum Khan, in Peshawar, Pakistan (May 9, 2012).

65

told our research team that the victims' bodies were badly burned.

352 Khan spoke with

local villagers who had seen the strike take place and who told him that they had

collected the charred body parts from the wreckage.

353

Khan was working five hours away in Peshawar on the evening the strike occurred.

354 A

cousin called him shortly after it happened to say that he needed to return to the village

as soon as possible, but would not tell him why.

355 Khan tried to find a ride back with a

relative that night, aware that something was wrong, but with no idea that his son—a

"peaceful guy" who was "very attached" to him—had been killed in a US drone strike.

356

It was not until Abdul Qayyum Khan arrived in Sirkot and from a distance saw his

neighbors filing into his home that he realized the gravity of what might have

happened.

357 "I thought I would have a heart attack,"358 he recalls. "I started weeping.

Lots of people there were weeping. . . . [Atiq-ur-Rehman's wife] was weeping fiercely."

359

Ibrahim Shah, Akram's Shah's brother, was also working in Peshawar that evening when

he received the news.

360 Trying to spare him the shock, his relatives called to say only

that his brother had been injured in an accident, waiting until much later that night to

call again and tell Ibrahim that his brother had in fact been killed in a drone strike.

361

Ibrahim took ten days off work to come back to the village, where he joined other

villagers and family members of the deceased in a large protest a few hours before the

funeral.

362 They lined up four of the victims' coffins across the main Bannu-Miranshah

road, and staged a procession and rally asserting that the deceased men were not

terrorists.

363

352

See, e.g., id.; Interview with Sayed Majid (anonymized name), in Peshawar, Pakistan (May 9, 2012);

see also Eight Killed in Waziristan

, supra note 347; NWA Tribesmen Protest Drone Attack Casualties,

supra

note 331.

353

Interview with Abdul Qayyum Khan, in Peshawar, Pakistan (May 9, 2012).

354

Id.

355

Id.

356

Id.

357

Id.

358

Id.

359

Id.

360

Interview with Ibrahim Shah, in Peshawar, Pakistan (May 9, 2012).

361

Id.

362

Id.

363

Id.; Interview with Sayed Majid (anonymized name), in Peshawar, Pakistan (May 9, 2012); see also

NWA Tribesmen Protest Drone Attack Casualties

, supra note 245; Tribesmen Protest Drone Attacks,

supra

note 245.

66

Just over a year after the strike, the families of those killed are still struggling to deal

with the difficulty of losing loved ones. Atiq-ur-Rehman, a young man when he was

killed, left behind a wife and four children, two boys and two girls, ranging in age from

four months to four years.

364 According to Atiq-ur-Rehman's father, a driver who now

supports his dead son's entire family, some of the children seem to understand that their

father was killed, but they do not talk about it.

365 Akram, who was in his mid-30s at the

time of the strike, also left behind a wife and three sons.

366 According to Akram's

brother, Akram's wife became mentally unwell after his death, and now suffers from

hypertension and headaches.

367 She and Akram's sons are supported by a relative.368

Abdul Qayyum Khan told our research team, "[w]e will ask…America just to quit their

forces from Pakistan…but we will never curse them because it is of no use. We will ask

nothing of them. In my point of view, this is a futile effort. My son will not come back.

My son is dead."

369

J

ANUARY 23, 2009

Just three days after taking office, the Obama administration carried out its first drone

strikes in Pakistan. The strikes, launched on January 23, 2009, targeted two houses, one

in the village of Zeraki, North Waziristan, and one in Wana, South Waziristan.

370 Citing

an unnamed Pakistani security official,

The Washington Post reported the following day

that the attacks struck "suspected terrorist hideouts" and killed "at least 10 insurgents,

including five foreign nationals and possibly even 'a high-value target.'"

371 Other initial

364

Interview with Abdul Qayyum Khan, in Peshawar, Pakistan (May 9, 2012).

365

See id.

366

Interview with Sayed Majid (anonymized name), in Peshawar, Pakistan (May 9, 2012).

367

Interview with Ibrahim Shah, in Peshawar, Pakistan (May 9, 2012).

368

See id.

369

Interview with Abdul Qayyum Khan, in Peshawar, Pakistan (May 9, 2012).

370

Obama 2009 Pakistan Strikes, THE BUREAU OF INVESTIGATIVE JOURNALISM,

http://www.thebureauinvestigates.com/2011/08/10/obama-2009-strikes/ (last visited Aug. 22, 2012).

371

R. Jeffrey Smith, Candace Rondeaux & Joby Warrick, 2 US Airstrikes Offer a Concrete Sign of

Obama's Pakistan Policy

, WASH. POST (Jan. 24, 2009), http://www.washingtonpost.com/wpdyn/

content/article/2009/01/23/AR2009012304189.html. Pakistani media reported the strikes in

similar terms.

See US Drone Attacks Kill 14 in Waziristan: First Obama-Era Strikes in Tribal Areas,

D

AWN (Jan. 23, 2009), http://archives.dawn.com/archives/33530; Twenty Killed in US Drone Strikes in

N, S Waziristan

, GEO PAKISTAN (Jan. 23, 2009), http://www.geo.tv/1-23-2009/33388.htm (noting that

the missile in North Waziristan targeted the house of "Khalil" and that foreigners were killed).

67

media accounts also reported that those killed by the strikes were militants.

372 The Long

War Journal,

which does not provide separate data on individual strikes, wrote a post

on its website about the two attacks on January 23, 2009.

373 On the Zeraki strike, it

reported that ten people (without identification or classification) had been killed and

that the target of the strike was "a compound run by a local named Khalil."

374

Within a few days of the Zeraki strike, some sources in Pakistan published information

that questioned the initial narrative. These sources cited the funeral for the victims,

attended by "thousands of tribesmen,"

375 as well as information from official and other

sources recognizing the death of three children and at least four civilians between the

Zeraki and Wana strikes.

376 Two years later, Islamabad attorney Shahzad Akbar filed a

suit on behalf of over a dozen Waziri residents who had been affected directly by drone

strikes. One of the named plaintiffs in the suit was Faheem Qureshi, a fourteen-year boy

372

See, e.g., Deadly Missiles Strike Pakistan, BBC NEWS (Jan. 23, 2009),

http://news.bbc.co.uk/2/hi/7847423.stm (citing officials as saying "[f]our Arab militants" were killed in

the strike"); Ewen MacAskill,

President Orders Air Strikes on Villages in Tribal Area, GUARDIAN (Jan. 23,

2009), http://www.guardian.co.uk/world/2009/jan/24/pakistan-barack-obama-air-strike (while

referencing reports that interviewed local interviewers, described the strikes as against "suspected

militants."); Juan Cole,

Obama's Vietnam?, SALON (Jan. 26, 2009),

http://www.salon.com/2009/01/26/obama_85/ (claiming that the owner of the home "hosted a party of

five alleged al-Qaida operatives in the guesthouse on his property," and referencing Pakistani press

accounts that claimed the strike killed "four Arab fighters and a Punjabi militant"). We were unable to

find updated information in the

Washington Post about these strikes.

373

Bill Roggio, US Strikes al Qaeda in North and South Waziristan, LONG WAR JOURNAL (Jan. 23, 2009),

available at

http://www.longwarjournal.org/archives/2009/01/us_strikes_al_qaeda.php#ixzz1MJhxXvwL.

374

Id.

375

Mushtaq Yusufzai et. al., Thousands Attend Funeral of Drone Victims, NEWS (Jan. 25, 2009),

http://www.thenews.com.pk/TodaysPrintDetail.aspx?ID=19872&Cat=13&dt=1/25/2009 (noting that

"thousands of tribesmen on Saturday attended the funeral prayers of the victims of Friday's drone attacks

in the North and South Waziristan Agencies," and that "[they] were critical of the reporting of the

international wire agencies….[and] claimed that all those killed in the attack were innocent and local

villagers, who had nothing to do with militancy or Taliban").

376

Mushtaq Yusufzai, US Missile Strikes Kill 20 in Waziristan, THE NEWS (Jan. 24, 2009) (maintaining

that militants were killed in the Zeraki strike, but asserting that Khalil Dawar, the owner of the house and

others present were civilians, and that of the 20 killed in the Zeraki and Wana strikes "a majority [] were

local tribesmen")

http://www.thenews.com.pk/TodaysPrintDetail.aspx?ID=19836&Cat=13&dt=1/24/2009;

see also Death

Toll From Frontier Drone Strikes Rises to 22

, DAWN (undated article),

http://archives.dawn.com/archives/124483 (referring to January 23, 2009 Zeraki drone strike as

occurring on "Friday" and January 24, 2009 funeral as occurring on "Saturday" and noting that the two

strikes killed "three children and at least four civilians").

68

who lost his left eye and suffered a fracture skull in the Zeraki blast.

377 The suit led to

some additional reporting on the January 23 strikes, which emphasized that at least

some of the victims were civilians.

378 In light of developments over the past three years,

TBIJ

now reports that in the Zeraki strike at least seven and as many as 11 civilians were

killed, of a total of between seven and 15 total dead; the New America Foundation

reported that five to six civilians were killed, in addition to four "militants."

379 While

ambiguity remains about some of those killed in the Zeraki strike, available evidence

indicates that the attack killed numerous civilians, raising important questions about

whether the US complied with basic principles of proportionality and proper

precautions in attack. Our analysis focuses on the strike in Zeraki, Mir Ali, North

Waziristan, though much of the initial coverage treated the two strikes together, since

they both happened on the same day.

380

We interviewed Faheem Quereshi, a 14-year old who survived the strike, his doctor, his

cousin Ejaz Ahmad, who visited the strike site the following day, and the attorneys

representing victims in the matter. We also reviewed physical and documentary

evidence (including a complaint to the U.N.), media reports, and drone data

aggregators. The narrative in this section is based on these sources. We have not been

able to find an official US government statement about the strike,

381 nor were we able to

377

Hasnain Kazim, Relatives of Pakistani Drone Victims to Sue CIA, DER SPIEGEL (Jan. 21, 2011),

http://www.spiegel.de/international/world/striking-back-at-the-us-relatives-of-pakistani-drone-victimsto-

sue-cia-a-740638.html (focusing on civilian victims, and noting "a lawsuit initiated by Karim Khan, a

43-year-old who lost his son and brother…[and joined by] [t]en other residents of Waziristan

…[including] 14-year-old Fahim Qureshi, who on Jan. 23, 2009, lost his left eye, suffered a fractured skull

and was hit by several shards in the stomach.").

378

Id.; see also Devi Boerema, Trying to Find the Truth Behind US Drone Strikes, RADIO NETHERLANDS

W

ORLDWIDE (Aug. 17, 2011), http://tswi.org/english/article/trying-find-truth-behind-us-drone-strikes

(discussing civilian victims of drone strikes and noting that Shahzad Akbar "represents Fahim Qureshi

and his family" in litigation in Pakistan).

379

Obama 2009 Pakistan Strikes, supra note 370 (finding that seven to 15 were killed in the strike,

including seven to 11 civilians);

2009: The Year of the Drone, NEW AMERICA FOUNDATION,

http://counterterrorism.newamerica.net/drones/2009 (identifying at least nine killed, including between

five and six civilians).

380

While we focus on the civilians harms in the Zeraki incident, evidence also suggests there have been

civilian casualties in the second strike in Wana, South Waziristan, although that strike was beyond the

scope of this report.

See CAMPAIGN FOR INNOCENT VICTIMS IN CONFLICT, CIVILIANS IN ARMED CONFLICT:

C

IVILIAN HARM AND CONFLICT IN NORTHWEST PAKISTAN 20-21 (2010); Obama 2009 Pakistan Strikes,

supra

note 370.

381

The initial report by the Washington Post noted White House press secretary Robert Gibbs' refusal to

answer questions about the strikes. Smith, Rondeaux & Warrick,

supra note 371 ("I'm not going to get

into these matters.").

69

locate any on-the-record statements about the strike by the Pakistani government,

although media sources cited anonymous authorities.

382

On the night of January 23, 2009, in the village of Zeraki in North Waziristan, relatives

and neighbors gathered for tea and conversation in the

hujra383 of an elder named

Mohammad Khalil. Media sources have described Khalil in different ways, ranging from

a "tribal notable"

384 to someone "reported to be associated with Tehrik-i-Taliban

Pakistan of Baitullah Mehsud."

385 Some media sources suggest that Khalil may have

invited Taliban or Al Qaeda fighters to his

hujra,386 a charge denied by both Faheem and

Ejaz, who told our researchers that they believed that those in the house were innocent

and not involved in terrorism.

387

On the day of the strike, Khalil's adult guests included his relatives Khushdil Khan, the

owner of a hardware store in Mir Ali, and Mansoor-ur-Rehman, a former driver who

had worked in the United Arab Emirates, as well as his neighbors Ubaid Ullah, Rafiq

Ullah, and Safat Ullah.

388 Also in the hujra were Khalil's nephews, twenty-one-year-old

Azaz-el-Rehman Qureshi and sixteen-year-old Faheem Qureshi.

389 His female family

members were present, as were children, but they were in a nearby space, separate from

the men, as is common in Waziri culture.

390

382

See, e.g., supra notes 371 and 372 and accompanying text.

383

The hujra is the main meeting area in a Waziri home, usually where Waziri men entertain visitors. See

Numbers,

supra Chapter 2: Numbers.

384

Cole, supra note 372; see also Complaint to UNHRC, supra note 342, at 5, 6 (describing Khalil, or

Khaleel, as "a retired schoolteacher").

385

US Drone Attacks Kill 14 in Waziristan, supra note 371; see also Death Toll From Frontier Drone

Strikes rises to 22

, supra note 376 (depicting Khalil as a "tribesman and Taliban sympathizer").

386

Cole, supra note 372 (asserting that Khalil "hosted a party of five alleged al-Qaida operatives in the

guest house on his property); Yusufzai,

US Missile Strikes Kill 20 in Waziristan, supra note 376 (citing

sources that asserted that "Khalil himself was not a militant, but had good relations with the Taliban and

was considered a trustworthy tribal host of Taliban fighters in the area.").

387

See Interview with Ejaz Ahmad, in Islamabad, Pakistan (Mar. 2, 2012); Interview with Faheem

Qureshi, in Islamabad, Pakistan (Mar. 2, 2012).

388

Complaint to UNHRC, supra note 342, at 5-6; see also Interview with Ejaz Ahmad, in Islamabad,

Pakistan (Mar. 2, 2012); Interview with Faheem Qureshi, in Islamabad, Pakistan (Mar. 2, 2012).

389

Complaint to UNHRC, supra note 342, at 5-6.; see also Interview with Faheem Qureshi, in Islamabad,

Pakistan (Mar. 2, 2012).

390

See Interview with Ejaz Ahmad, in Islamabad, Pakistan (Mar. 2, 2012); see also supra Methodology

(describing

purda, the practice of separation of men and women).

70

At about 5:00 that evening, they heard the hissing sound of a missile and instinctively

bent their heads down.

391 The missile slammed into the center of the room, blowing off

the ceiling and roof, and shattering all the windows.

392 The immense pressure from the

impact cracked the walls of the attached house, as well as those of the neighboring

houses.

393 Our research team reviewed photographs that Faheem showed us, which he

said showed the destruction to the home. Faheem, who stated that he was

approximately ten footsteps away from the center of the

hujra, suffered a fractured skull

and received shrapnel wounds and burns all over the left side of his body and face.

394 All

others in the

hujra—at least seven, but as many as 15 people—were killed.395

In the moments after the strike, Faheem said he "could not think."

396 "I felt my brain

stopped working and my heart was on fire," stated Faheem.

397 "My entire body was

burning like crazy."

398 Faheem wanted to splash water on his face, but he could not find

any.

399 After a few minutes of confusion, he stumbled out of the gate of his hujra, where

neighbors found him.

400 They quickly gathered Faheem into a pickup truck and rushed

him to a government hospital in Mir Ali, a ten-minute drive away, according to

Faheem.

401 Medics there bandaged his wounds and transferred him to another hospital

in Bannu, the closest major city outside FATA, where doctors operated to remove

shrapnel from his abdomen and repair damage to his leg, arm, and eyes.

402 Following

the surgery, Faheem was transferred to a private hospital in Peshawar, where he

remained for at least 23 days.

403 In the end, Faheem lost his left eye, which has since

been replaced by an artificial one; he also lost his hearing in one ear as a result of

391

Interview with Faheem Qureshi, in Islamabad, Pakistan (Mar. 2, 2012).

392

See id.

393

Id.

394

See id.; Complaint to UNHRC, supra note 342, at 5-6.

395

Interview with Interview with Ejaz Ahmad, in Islamabad, Pakistan (Mar. 2, 2012); Interview with

Faheem Qureshi, in Islamabad, Pakistan (Mar. 2, 2012);

see Complaint to UNHRC, supra note 342, at 5-

6.

396

Interview with Faheem Qureshi, in Islamabad, Pakistan (Mar. 2, 2012).

397

Id.

398

Id.

399

Id.

400

See id.

401

Id. Faheem noted that villagers ordinarily do not search the rubble of a strike for at least half an hour

after impact, because they fear a second missile will strike the rescuers.

Id.

402

Id.; see Complaint to UNHRC, supra note 342, at 5-6.

403

Id.

71

damage to his eardrum.

404 His vision in his right eye is still blurred, requiring ongoing

treatment, and he now has only limited mobility.

405

Faheem's cousin Ejaz Ahmad, who lives just a few kilometers away, did not attend the

gathering in the

hujra that evening, and was instead at a friend's home.406 He

discovered the next morning that his paternal uncle, Khush Dil Khan, in whose

hardware store Ejaz worked, died in the strike.

407 "The bodies were completely

destroyed," Ejaz stated.

408 "All we could retrieve was the torso and upwards."409

Those who dug through the rubble retrieved a small handful of items that the dead had

on their persons at the time of the attack; Faheem still carries these around with him as

reminders of the uncles and cousin he lost.

410 When the strike happened, Faheem's

cousin, Azaz-el-Rehman Qureshi, was preparing to move to the United Arab Emirates to

work as a driver, and had just finished his final preparations, including obtaining a

passport and having new clothes made.

411 Faheem showed our research team an

identification card (in the name of Azaz-el-Rehman Qureshi, which we copied),

412 a pair

of business cards for a Mir Ali fabric store, and a cargo service slip that Azaz was

carrying in his pocket on the night of the strike, each with jagged tears that Faheem said

he believed had been caused by missile shrapnel.

413 Faheem also showed us several

items retrieved from the person of Mohammad Khalil, his uncle. These were an

identification card in the name of Mohammad Khalil (which we copied

414) and a

shopping list covered in what appeared to be dried blood, listing everyday grocery items

404

Interview with Faheem Qureshi, in Islamabad, Pakistan (Mar. 2, 2012); see also Complaint to UNHRC,

supra

note 342, at 5-6.

405

Interview with Faheem Qureshi, in Islamabad, Pakistan (Mar. 2, 2012).

406

Interview with Ejaz Ahmad, in Islamabad, Pakistan (Mar. 2, 2012).

407

Id.

408

Id.

409

Id.

410

Interview with Faheem Qureshi, in Islamabad, Pakistan (Mar. 2, 2012).

411

Id.

412

Interview with Faheem Qureshi, in Islamabad, Pakistan (Mar. 2, 2012) (on file with Stanford research

team).

413

Id.

414

Id.

72

such as rice.

415 A third identification card, from his uncle Mansoor's pocket, was also

shredded; Faheem said he believed this was also due to shrapnel damage.

416

The mental and emotional impact of the strike has been lasting. Faheem, a top student

before the strike, told us he now feels uncomfortable and distracted when he studies:

"[a]t the time the drone struck, I had to take exams, but…I couldn't learn things, and it

affected me emotionally.…I became very short-tempered and small things annoyed me. I

got angry very quickly, small things agitated me."

417

He said that he had taken medicine at one point that had helped him to focus and

resume his education. Recently, however, he has once again started having difficulties

studying. He plans to return to the doctor to see if he can help.

418 Despite battling

significant challenges and frustrations, he still dreams of becoming a scientist.

419

Ejaz, whose uncle and cousins were killed in the strike, and who is currently studying for

an arts degree in college, said that he too "continued to go to school after the strike, but

[is] tense all the time."

420 He hopes to become a teacher, but at this point plans to leave

his studies after one year to move abroad to join his father.

421 Ejaz also told us that the

female members of the household who escaped the strike without physical injury have

nonetheless been affected by "mental tension and anxiety,"

422 and explained that both

he and other members of the family have trouble sleeping at night.

423

Faheem's extended family has yet to recover from the economic damage caused by the

strike. Mohammad Khalil left behind nine children, whom he had supported with his

teacher's pension; Mansoor-ur-Rehman left behind two sons and three daughters.

424

The strike caused substantial damage to the family's house, reducing the

hujra to a

roofless shell and leaving large cracks in the adjacent structures.

425 Having lost their

415

Id.

416

Id.

417

Id. These educational impacts on segments of Waziri society are further discussed later in this Chapter.

See

Beyond Killings: Civilian Impacts of US Drone Strike Practices, infra Chapter 3: Living Under Drones.

418

Id.

419

Id.

420

Interview with Ejaz Ahmad, in Islamabad, Pakistan (Mar. 2, 2012).

421

Id.

422

Id.

423

Id.

424

Interview with Faheem Qureshi, in Islamabad, Pakistan (Mar. 2, 2012).

425

Id.

73

primary breadwinners and spent an enormous sum on Faheem's medical care, the

family cannot afford to rebuild.

426

As the first of 292 drone strikes carried out under President Obama in Pakistan,

427 the

January 23, 2009 strikes have received significant attention in the years that followed,

including in books by two prominent American journalists. The narrative in those two

books, however, focuses primarily on President Obama's role in and reaction to the

strike,

428 rather than on the accounts of victims such as Faheem Qureshi, or the impacts

of the strike on family and community members.

B

EYOND KILLING: CIVILIAN IMPACTS OF US DRONE STRIKE PRACTICES

The section below focuses on the impact that drones have on communities in North

Waziristan beyond the immediately apparent death, injury, and destruction caused to

those directly struck. The kinds of impacts described here are similar in numerous

respects to those reported in conflict zones, or during periods of considerable violence,

around the world. It is also essential to note, as described above,

429 that the Taliban

presence in FATA has caused significant harm to civilians. However, because of the

dearth of information in the US about the impacts of US drone strikes specifically, and

426

See id.

427

Drone Strikes in Pakistan by Year (Graph), THE BUREAU OF INVESTIGATIVE JOURNALISM,

http://www.thebureauinvestigates.com/wp-content/uploads/2012/07/Strikes-Per-Year-Dash6.jpg (last

visited Aug. 22, 2012);

Obama 2009 Pakistan Strikes, supra note 370.

428

For example, in Obama's Wars, Bob Woodward writes that Obama endorsed both the January 23,

2009 strikes even though they missed their intended high-value targets. B

OB WOODWARD, OBAMA'S WARS

93 (2010) ("Neither strike killed the intended 'HVT,' or high value target, but at least five Al Qaeda

militants died. . . . The president said good. He had fully endorsed the covert action program and made it

clear he wanted more."). Daniel Klaidman's

Kill or Capture (2012) paints a different picture of Obama's

reaction to news about the January 23, 2009 covert activities. According to Klaidman, Obama was

informed that the Wana strike missed its target and killed civilians, including two children. Klaidman

writes:

Obama was disturbed, and he grilled his counterterrorism adviser for answers. How

could this have happened? What about the pinpoint accuracy of these weapons, which he

had heard about all through the transition? . . . . [h]ere he was, in his first week as

president, presiding over the accidental killing of innocent Muslims.

D

ANIEL KLAIDMAN, KILL OR CAPTURE: THE WAR ON TERROR AND THE SOUL OF THE OBAMA

P

RESIDENCY 40 (2012).

429

See Numbers, infra Chapter 2: Numbers.

74

because they tend to be framed as "precision" weapons, this section discusses their

impacts on civilian populations in detail.

I

MPACTS ON WILLINGNESS TO RESCUE VICTIMS AND PROVIDE MEDICAL ASSISTANCE

There is now significant evidence that the US has repeatedly engaged in a practice

sometimes referred to as "double tap,"

430 in which a targeted strike site is hit multiple

times in relatively quick succession. Evidence also indicates that such secondary strikes

have killed and maimed first responders coming to the rescue of those injured in the

first strike. In a February 2012 joint investigative report, Chris Woods of

The Bureau of

Investigative Journalism

(TBIJ) documented that:

[o]f the 18 attacks on attacks on rescuers and mourners reported at the time by

credible media, twelve cases have been independently confirmed by our

researchers. In each case civilians are reported killed, and where possible we have

named them.

431

Since those findings were released, several more strikes have repeated this pattern,

including a strike on July 6, 2012 in which three "local people" and "tribesmen . . .

carrying out rescue work" were reportedly killed and two more injured in follow-up

strikes.

432

Those interviewed for this report were acutely aware of reports of the practice of followup

strikes, and explained that the secondary strikes have discouraged average civilians

430

Matthew Nasuti, Hellfire Missile Accuracy Problems Uncovered in Pentagon Data, KABUL PRESS (Nov.

27, 2011), http://kabulpress.org/my/spip.php?article89242 (speculating that the "double tap" strike

pattern is actually less the result of strategy than it is a cover for the less-than-pinpoint-accurate

technological capacity of the missiles used in most drone strikes and noting that "[d]ouble tap means that

the military fires two Hellfire missiles at each target in order to ensure that at least one hits the target");

see also

Derek Gregory, Lines of Descent, OPEN DEMOCRACY (Nov. 8, 2011),

http://www.opendemocracy.net/derek-gregory/lines-of-descent (reporting the "Circular Error Probable"

or "radius from the aiming point within which a [laser-fired Hellfire missile] will land 50 per cent of the

time" at 9-24 feet, and that of a 500lb GPS-guided JDAM bomb at 30-39 feet).

431

Chris Woods, Get the Data: Obama's Terror Drones, THE BUREAU OF INVESTIGATIVE JOURNALISM (Feb.

4, 2012), http://www.thebureauinvestigates.com/2012/02/04/get-the-data-obamas-terror-drones/.

432

Twenty Die in Double Drone Attack, DAWN (July 7, 2012), http://dawn.com/2012/07/07/twenty-diein-

double-drone-attack/;

see also Chris Woods, CIA 'Revives Attacks on Rescuers' in Pakistan, THE

B

UREAU OF INVESTIGATIVE JOURNALISM (June 4, 2012),

http://www.thebureauinvestigates.com/2012/06/04/cia-revives-attacks-on-rescuers-in-pakistan/.

75

from coming to one another's rescue, and even inhibited the provision of emergency

medical assistance from humanitarian workers.

The lone survivor of the Obama administration's first strike in North Waziristan,

Faheem Qureshi, stated that "[u]sually, when a drone strikes and people die, nobody

comes near the bodies for half an hour because they fear another missile will strike."

433

He believes that he would likely not have survived if he had not managed to walk out of

the smoking rubble of his

hujra on his own, because his neighbors would have waited

too long in coming to rescue him.

434 One interviewee told us that a strike at the home of

his in-laws hit first responders: "Other people came to check what had happened; they

were looking for the children in the beds and then a second drone strike hit those

people."

435 A father of four, who lost one of his legs in a drone strike, admitted that,

"[w]e and other people are so scared of drone attacks now that when there is a drone

strike, for two or three hours nobody goes close to [the location of the strike]. We don't

know who [the victims] are, whether they are young or old, because we try to be safe."

436

When individuals do try to recover bodies, they do so with knowledge that their efforts

might get them killed or maimed. Noor Behram, a journalist who has reported

extensively from the area, elaborated:

[W]hat America has tried to do is attack the rescue teams . . . . So now, what the

tribals do, they don't want many people going to the strike areas. Only three or

four willing people who know that if they go, they are going to die, only they go

in. . . . It has happened most of the times . . . [O]nce there has been a drone

attack, people have gone in for rescue missions, and five or ten minutes after the

drone attack, they attack the rescuers who are there.

437

Another interviewee, Hayatullah Ayoub Khan

, recounted a particularly harrowing

incident that he said he experienced while driving between Dossali and Tal in North

Waziristan.

438 He stated that a missile from a drone was fired at a car approximately

three hundred meters in front of him, missing the car in front, but striking the road

close enough to cause serious damage.

439 Hayatullah stopped, got out of his own car,

433

Interview with Faheem Qureshi, in Islamabad, Pakistan (Mar. 2, 2012).

434

Id.

435

Interview with Firoz Ali Khan (anonymized name), in Islamabad, Pakistan (Feb. 26, 2012).

436

Interview with Dawood Ishaq (anonymized name), in Islamabad, Pakistan (Mar. 8, 2012).

437

Interview with Noor Behram, in Islamabad, Pakistan (Mar. 9, 2012).

438

Interview with Hayatullah Ayoub Khan (anonymized name), in Islamabad, Pakistan (Mar. 2, 2012).

439

Id.

76

and slowly approached the wreckage, debating whether he should help the injured and

risk being the victim of a follow-up strike.

440 He stated that when he got close enough to

see an arm moving inside the wrecked vehicle, someone inside yelled that he should

leave immediately because another missile would likely strike.

441 He started to return to

his car and a second missile hit the damaged car and killed whomever was still left

inside.

442 He told us that nearby villagers waited another twenty minutes before

removing the bodies, which he said included the body of a teacher from Hayatullah's

village.

443

Crucially, the threat of the "double tap" reportedly deters not only the spontaneous

humanitarian instinct of neighbors and bystanders in the immediate vicinity of strikes,

but also professional humanitarian workers providing emergency medical relief to the

wounded. According to a health professional familiar with North Waziristan, one

humanitarian organization had a "policy to not go immediately [to a reported drone

strike] because of follow up strikes. There is a six hour mandatory delay."

444 According

to the same source, therefore, it is "only the locals, the poor, [who] will pick up the

bodies of loved ones."

445

The dissuasive effect that the "double tap" pattern of strikes has on first responders

raises crucial moral and legal concerns. Not only does the practice put into question the

extent to which secondary strikes comply with international humanitarian law's basic

rules of distinction, proportionality, and precautions, but it also potentially violates

specific legal protections for medical and humanitarian personnel, and for the

wounded.

446 As international law experts have noted, intentional strikes on first

responders may constitute war crimes.

447

440

Id.

441

Id.

442

Id.

443

Id.

444

Interview with Shams Mohiuddin (anonymized name and location), in Pakistan (May 2012).

445

Id.

446

See Chapter 4: Legal Analysis; see generally JEAN-MARIE HENCKAERTS & LOUISE DOSWALD-BECK,

I

NTERNATIONAL COMMITTEE OF THE RED CROSS, CUSTOMARY INTERNATIONAL HUMANITARIAN LAW: VOL. 1:

R

ULES (2006), available at http://www.icrc.org/eng/assets/files/other/customary-internationalhumanitarian-

law-i-icrc-eng.pdf (mandating the protection of medical and humanitarian personnel

(Rules 25-32), the allowance and facilitation of unimpeded humanitarian relief for civilians in need, (Rule

55) and the provision of medical care for the wounded (Rules 110-11)).

447

Jack Serle, UN Expert Labels CIA Tactic Exposed by Bureau 'a War Crime', THE BUREAU OF

I

NVESTIGATIVE JOURNALISM (June 21, 2012) (noting UN Special Rapporteur for extrajudicial, summary or

77

D

IRECT PROPERTY DAMAGE AND ECONOMIC HARDSHIP IMPACTS

Many of the interviewees we spoke with experienced severe financial hardship as a

result of strike damage to their homes, loss of a primary breadwinner, or medical costs

incurred in caring for drone strike survivors.

In North Waziristan, extended families live together in compounds that often contain

several smaller individual structures.

448 Many interviewees told us that often strikes not

only obliterate the target house, usually made of mud,

449 but also cause significant

damage to three or four surrounding houses.

450 Such destruction exacts a significant

cost on communities, especially in a place like FATA where "underdevelopment and

poverty are particularly stark," and "savings, insurance, and social safety nets" are

largely unavailable.

451

A 45 year-old rural farmer who had to leave his village after a drone destroyed his house,

told us how it affected his family:

A drone struck my home. . . . I [was at] work at that time, so there was nobody in

my home and no one killed. . . . Nothing else was destroyed other than my house. I

went back to see the home, but there was nothing to do—I just saw my home

wrecked. . . . I was extremely sad, because normally a house costs around 10

lakh,

or 1,000,000 rupees [US $10,593], and I don't even have 5,000 rupees now [US

$53]. I spent my whole life in that house . . . my father had lived there as well.

There is a big difference between having your own home and living on rent or

mortgage. . . . [I] belong to a poor family and my home has been destroyed . . .

[and] I'm just hoping that I somehow recover financially."

452

arbitrary executions as observing that "if civilian 'rescuers' are indeed being intentionally targeted, there

is no doubt about the law: those strikes are a war crime"),

http://www.thebureauinvestigates.com/2012/06/21/un-expert-labels-cia-tactic-exposed-by-bureau-awar-

crime/.

448

Interview with Zafar Husam (anonymized name and location), in Pakistan (May 2012); Interview with

Dawood Ishaq (anonymized name), in Islamabad, Pakistan (Mar. 8, 2012).

449

Interview with Dawood Ishaq (anonymized name), in Islamabad, Pakistan (Mar. 8, 2012).

450

See, e.g., Interview with Ghulam Faris (anonymized name), in Islamabad, Pakistan (Feb. 26, 2012)

(estimating that seven or eight houses around a house hit by a drone strike were affected); Interview with

Sadaullah Wazir, in Islamabad, Pakistan (Feb. 26, 2012) ("When a drone strikes, it easily destroys a

house.").

451

CAMPAIGN FOR INNOCENT VICTIMS IN CONFLICT, supra note 380.

452

Interview with Adil Hashmi (anonymized name), in Islamabad, Pakistan (Feb. 26, 2012).

78

He now lives in a small rented house in Miranshah with his five sons, the oldest of

whom helps support the family by selling fruits and vegetables from a vending

cart.

453

Drone strikes that kill civilians also exact a substantial toll on livelihoods by

incapacitating the primary income earners of families.

454 Because men are typically the

primary income earners in their families, strikes often deprive victims' families of "a

key, and perhaps its only, source of income."

455 Families struggle to compensate for the

lost income, often forcing children or other younger relatives to forgo school and enter

the workforce at a young age.

456 Eighteen-year-old Hisham Abrar, whose cousin was

killed in a drone strike, explained that "a lot of men have been killed [who are] wage

earners for the house, and now the kids and the families don't have a source of income

because of that."

457 Others in his community do what they can to help, but "they are

poor, and they usually just rely on labor services—daily wage earning. That's only

sufficient for themselves, so it's hard to help others. But whenever they can, they do."

458

One man told us that several of his friends killed in the March 17, 2011

jirga strike459

"left a family and children" to be cared for by family members who have to "work with

their hands and feet" in hard labor to support them.

460 Another strike survivor

explained that a friend killed in a strike:

left behind a mother, two sisters, and a young baby brother. And they now live on

whatever the village gives them as charity. [The man's younger brothers] tried to

go out as laborers but they cannot do it. The other village men help them. And

there are sometimes these neighbors that give them food, sometimes not, but

they are basically living on charity.

461

453

Id.

454

CAMPAIGN FOR INNOCENT VICTIMS IN CONFLICT, supra note 380, at 26-28.

455

Id. at 26.

456

Id; see Interview with Hisham Abrar (anonymized name), in Islamabad, Pakistan (Feb. 26, 2012).

457

Interview with Hisham Abrar (anonymized name), in Islamabad, Pakistan (Feb. 26, 2012).

458

Id.

459

See March 17, 2011 Strike Narrative, supra Chapter 3: Living Under Drones.

460

In Interview with Masood Afwan (anonymized name), in Islamabad, Pakistan (Feb. 26, 2012). Other

relatives of those killed in the March 17, 2011 strike told of similar difficulties supporting family members

due to lost income from the strike victims.

See March 17, 2011 Strike Narrative, supra Chapter 3: Living

Under Drones.

461

Interview with Haroon Quddoos (anonymized name), in Islamabad, Pakistan (Mar. 8, 2012).

79

In addition to the loss of homes and primary wage earners, several of those interviewed

were burdened with enormous medical bills following strikes incurred for surgeries,

mental health care, and hospital stays. Without major emergency medical centers or

adequate hospitals in North Waziristan, many victims were taken to Peshawar for

medical treatment, a journey that can take anywhere from hours to several days due to

rough terrain and poor security.

462 Once there, many ended up in private hospitals,

running up bills of several

lakhs each (each lakh equivalent to more than US$1000

each),

463 which is many times the average annual income in FATA.464

Medical bills of this magnitude can have a lasting effect on a victim's family. Sameer

Rahman's nephew, for example, suffered significant injuries in a strike that took place

during the holy month of Ramadan.

465 Family members took him to Peshawar for

medical care, but struggled to raise the 280,000 rupees ($2,960) required for his

treatment.

466 Forced to take out emergency loans, the family has amassed enormous

debt and still owes about 100,000 rupees (approximately US $1,058).

467 The family of

Dawood Ishaq, a father of four who lost consciousness for six days and underwent a leg

amputation following a 2010 attack, had to "[take] loans from different people . . . in the

village" to pay for his treatment. Dawood told us: "[m]y father had to labor hard and

work in different positions to earn that money, and sometimes I've had to sell off stuff

from home to make money. My kids have been sick . . . but we have to work very hard to

462

See, e.g., Interview with Dawood Ishaq (anonymized name), in Islamabad, Pakistan (Mar. 8, 2012);

Interview with Fahad Mirza (anonymized name), in Islamabad, Pakistan (Feb. 26, 2012); Interview with

Faheem Qureshi, in Islamabad, Pakistan (Mar. 2, 2012); Interview with Sameer Rahman (anonymized

name) and Mahmood Muhammad (anonymized name), in Islamabad, Pakistan (Feb. 29, 2012); Interview

with Ahmed Jan, in Islamabad, Pakistan (Feb. 26, 2012); Interview with Waleed Shiraz (anonymized

name), in Islamabad, Pakistan (Feb. 26, 2012).

463

Interview with Dawood Ishaq (anonymized name), in Islamabad, Pakistan (Mar. 8, 2012); Interview

with Faheem Qureshi, in Islamabad, Pakistan (Mar. 2, 2012); Interview with Sameer Rahman

(anonymized name) and Mahmood Muhammad (anonymized name), in Islamabad, Pakistan (Feb. 29,

2012).

464

The per capita income in FATA stands at a meager US$250 per year. UNITED STATES GOVERNMENT

A

CCOUNTABILITY OFFICE, COMBATING TERRORISM: THE UNITED STATES LACKS COMPREHENSIVE PLAN TO

D

ESTROY THE TERRORIST THREAT AND CLOSE THE SAFE HAVEN IN PAKISTAN'S FEDERALLY ADMINISTERED

T

RIBAL AREAS (2008), reprinted in COMBATING ISLAMIC MILITANCY AND TERRORISM IN PAKISTAN'S BORDER

R

EGION 59, 64 (Nikolas J. Koppel ed., 2010).

465

Interview with Sameer Rahman (anonymized name) and Mahmood Muhammad (anonymized name),

in Islamabad, Pakistan (Feb. 29, 2012).

466

Id.

467

Id.

80

earn money to pay for the expense."

468 Now a double amputee, Dawood makes a living

selling vegetables when he can in a market in Mir Ali.

469

US authorities have not made any coordinated effort to provide compensation to strike

victims in Pakistan, although compensation schemes to address civilian harm do exist in

Afghanistan.

470 Pakistani authorities have offered limited compensation in some

instances, but these offers, rejected by many Waziris on principle,

471 fail to address

adequately the damage and loss of income the victims have sustained.

472

M

ENTAL HEALTH IMPACTS OF DRONE STRIKES AND THE PRESENCE OF DRONES

One of the few accounts of living under drones ever published in the US came from a

former

New York Times journalist who was kidnapped by the Taliban for months in

FATA.

473 In his account, David Rohde described both the fear the drones inspired

among his captors, as well as among ordinary civilians: "The drones were terrifying.

From the ground, it is impossible to determine who or what they are tracking as they

circle overhead. The buzz of a distant propeller is a constant reminder of imminent

death."

474 Describing the experience of living under drones as 'hell on earth', Rohde

explained that even in the areas where strikes were less frequent, the people living there

still feared for their lives.

475

Community members, mental health professionals, and journalists interviewed for this

report described how the constant presence of US drones overhead leads to substantial

468

Interview with Dawood Ishaq (anonymized name), in Islamabad, Pakistan (Mar. 8, 2012).

469

Id.

470

CAMPAIGN FOR INNOCENT VICTIMS IN CONFLICT, supra note 451, at 63.

471

See, e.g., Interview with Khalil Khan, Noor Khan, and Imran Khan, in Islamabad, Pakistan (Feb. 26,

2012) ("I mean, after the strike, we lost an entire community of elders, so we did not take these 3

lakh

rupees and we didn't take compensation because we thought we were more than that."); Interview with

Khairullah Jan, in Islamabad, Pakistan (Feb. 29, 2012) ("We think the Pakistani government has a hand,

or at least a heart, in it. We are Pashtuns and we will not accept compensation for this."); Interview with

Abdul Qayyum Khan, in Peshawar, Pakistan (May 9, 2012) ("We don't need any financial benefit. I don't

want to sell my son.").

472

CAMPAIGN FOR INNOCENT VICTIMS IN CONFLICT, supra note 451, at 51-57.

473

See David Rohde, The Drone War, REUTERS (Jan. 26, 2012),

http://www.reuters.com/article/2012/01/26/us-david-rohde-drone-wars-idUSTRE80P11I20120126.

474

Id.

475

Id.

81

levels of fear and stress in the civilian communities below.

476 One man described the

reaction to the sound of the drones as "a wave of terror" coming over the community.

"Children, grown-up people, women, they are terrified. . . . They scream in terror."

477

Interviewees described the experience of living under constant surveillance as

harrowing. In the words of one interviewee: "God knows whether they'll strike us

again or not. But they're always surveying us, they're always over us, and you

never know when they're going to strike and attack."

478 Another interviewee who lost

both his legs in a drone attack said that "[e]veryone is scared all the time. When we're

sitting together to have a meeting, we're scared there might be a strike. When you can

hear the drone circling in the sky, you think it might strike you. We're always scared. We

always have this fear in our head."

479

A Pakistani psychiatrist, who has treated patients presenting symptoms he attributed to

experience with or fear of drones, explained that pervasive worry about future trauma is

emblematic of "anticipatory anxiety,"

480 common in conflict zones.481 He explained that

the Waziris he has treated who suffer from anticipatory anxiety are constantly worrying,

"'when is the next drone attack going to happen? When they hear drone sounds, they

run around looking for shelter."

482 Another mental health professional who works with

drone victims concluded that his patients' stress symptoms are largely attributable to

their belief that "[t]hey could be attacked at any time."

483

476

See, e.g. Interview with Azhar Aslam (anonymized name), in Peshawar, Pakistan (May 9, 2012) ("We

have lost our peace of mind. We are not at peace. All the time we are scared. There could be a drone attack

at any time. All the time, we are just scared."); Interview with Idris Farid (anonymized name), in

Islamabad, Pakistan (Feb. 26, 2012) ("There's a sense of fear pervading around all the time."); Interview

with Iqbal Ali Mir (anonymized name), in Islamabad, Pakistan (Feb. 26, 2012) ("We are all scared in our

hearts because nobody knows who will be hit.").

477

Interview with Nasim Rahman (anonymized name), in Islamabad, Pakistan (May 9, 2012).

478

Interview with Khalid Raheem (anonymized name), in Islamabad, Pakistan (Feb. 26, 2012).

479

Interview with Dawood Ishaq (anonymized name), in Islamabad, Pakistan (Mar. 8, 2012).

480

Interview with Sulayman Afraz (anonymized name and location), in Pakistan (2012). Anticipatory

anxiety refers to a "complex combination of a future-oriented cognitive state, negative affect, and

automatic arousal," involving a "sense of uncontrollability focused on possible future threat, danger, or

other upcoming potentially negative effects." Phyllis Chua et al.,

A Functional Anatomy of Anticipatory

Anxiety

, 9 NEUROIMAGE 563, 563 (1998) (citing David Barlow et al., Fear, Panic, Anxiety, and Disorders

of Emotion

, 43 NEBRASKA SYMPOSIUM ON MOTIVATION 251-328 (1996)).

481

See generally Abdel Aziz Mousa Thabet, Yehia Abed, & Panos Vostanis, Emotional Problems in

Palestinian Children Living In A War Zone: A Cross-Sectional Study

, 359 LANCET 1801 (2002), available

at

http://www.sciencedirect.com/science/article/pii/S0140673602087093.

482

Interview with Sulayman Afraz (anonymized name and location), in Pakistan (2012).

483

Interview with Ateeq Razzaq (anonymized name and location), in Pakistan (2012).

82

Uncontrollability—a core element of anticipatory anxiety—emerged as one of the most

common themes raised by interviewees. Haroon Quddoos, a taxi driver who survived a

first strike on his car, only to be injured moments later by a second missile that hit him

while he was running from the burning car, explained:

We are always thinking that it is either going to attack our homes or whatever we

do. It's going to strike us; it's going to attack us . . . . No matter what we are

doing, that fear is always inculcated in us. Because whether we are driving a car,

or we are working on a farm, or we are sitting home playing . . . cards–no matter

what we are doing we are always thinking the drone will strike us. So we are

scared to do anything, no matter what.

484

Interviewees indicated that their own powerlessness to minimize their exposure to

strikes compounded their emotional and psychological stress. "We are scared. We are

worried. The worst thing is that we cannot find a way to do anything about it. We feel

helpless."

485 Ahmed Jan summarized the impact: "Before the drone attacks, it was as if

everyone was young. After the drone attacks, it is as if everyone is ill. Every person is

afraid of the drones."

486 One mother who spoke with us stated that, although she had

herself never seen a strike, when she heard a drone fly overhead, she became terrified.

"Because of the terror, we shut our eyes, hide under our scarves, put our hands over our

ears."

487 When asked why, she said, "Why would we not be scared?"488

A humanitarian worker who had worked in areas affected by drones stated that although

far safer than others in Waziristan, even he felt constant fear:

Do you remember 9/11? Do you remember what it felt like right after? I was in

New York on 9/11. I remember people crying in the streets. People were afraid

about what might happen next. People didn't know if there would be another

attack. There was tension in the air. This is what it is like. It is a continuous

tension, a feeling of continuous uneasiness. We are scared. You wake up with a

start to every noise.

489

In addition to feeling fear, those who live under drones–and particularly interviewees

who survived or witnessed strikes–described common symptoms of anticipatory anxiety

484

Interview with Haroon Quddoos (anonymized name), in Islamabad, Pakistan (Mar. 8, 2012).

485

Interview with Mohsin Haq (anonymized name), in Islamabad, Pakistan (Feb. 26, 2012).

486

Interview with Ahmed Jan, in Islamabad, Pakistan (Feb. 26, 2012).

487

Interview with Farah Kamal (anonymized name), in Peshawar, Pakistan (May 15, 2012).

488

Id.

489

Interview with Peter Brenner (anonymized name), in Pakistan (2012).

83

and post-traumatic stress disorder. Interviewees described emotional breakdowns,

490

running indoors or hiding when drones appear above,

491 fainting,492 nightmares and

other intrusive thoughts,

493 hyper startled reactions to loud noises,494 outbursts of anger

or irritability,

495 and loss of appetite and other physical symptoms.496 Interviewees also

reported suffering from insomnia and other sleep disturbances,

497 which medical health

professionals in Pakistan stated were prevalent.

498 A father of three said, "drones are

always on my mind. It makes it difficult to sleep. They are like a mosquito. Even when

490

A teenager from Machi Khel described seeing "a lot of people [who] have been mentally affected" by

drone strikes, and noted that sometimes people "have breakdowns where they start crying all of a sudden

and they are really scared." Interview with Sadaullah Wazir, in Islamabad, Pakistan (Feb. 26, 2012).

491

Interview with Firoz Ali Khan (anonymized name), in Islamabad, Pakistan (Feb. 26, 2012) ("whenever

my wife sees a drone she is very confused and scared and runs inside the house"); Interview with Misbah

Naseri (anonymized name), in Islamabad, Pakistan (May 9, 2012) ("We hide in different places.");

Interview with Sahar Nazir in Peshawar, Pakistan (May 15, 2012) (recounting second-hand anecdote of a

woman who ran around frantically inside her home looking for places to hide when she heard a drone

overhead).

492

Interview with Khalil Arshad (anonymized name), in Islamabad, Pakistan (Mar. 9, 2012); Interview

with Haidar Nauman (anonymized name), in Islamabad, Pakistan (Mar. 9, 2012).

493

Interview with Umar Ashraf (anonymized name), Islamabad, Pakistan (Mar. 9, 2012) (describing how

he has to keep himself distracted with work, otherwise "the sound of the drone stays in my brain");

Interview with Syed Akhunzada Chitan, National Assembly Member, in Islamabad, Pakistan (May 14,

2012) (describing how people wake up in the night screaming, hallucinating about drones).

494

Interview with Idris Farid (anonymized name), in Islamabad, Pakistan (Feb. 26, 2012) ("Any loud

noise, I get scared because I think it might be a drone."); Interview with Fahad Mirza (anonymized name),

in Islamabad, Pakistan (Feb. 26, 2012) (describing frightened reactions to noise, explosions, and loud

sounds).

495

Interview with Faheem Qureshi, in Islamabad, Pakistan (Mar. 2, 2012) ("[After I was injured in the

strike,] I became very short-tempered and small things annoyed me. I got angry very quickly, small things

agitated me."); Interview with Saeed Yayha (anonymized name), in Islamabad, Pakistan (Mar. 9, 2012)

("[W]hen the [drones] are there, I can't talk to people. I start fighting with everybody even when someone

is talking to me very sweetly. I start fighting with them because of all the pressure in my head.").

496

Pakistani psychiatrists interviewed attributed the frequent patient presentation of physical symptoms

(such as aches and pains and vomiting) to the common reluctance of patients to recognize or acknowledge

their emotional distress. Interview with Sulayman Afraz (anonymized name and location), in Pakistan

(2012); Interview with Ateeq Razzaq (anonymized name and location), in Pakistan (2012); Interview with

Hatim Sheikh (anonymized name), in Peshawar, Pakistan (2012); Interview with Abbas Uddin

(anonymized name and location), in Pakistan (2012). Psychiatrists may refer to physiological responses to

deeper psychological problems as "conversion" or "somatization" disorders.

See AMERICAN PSYCHIATRIC

A

SSOCIATION, DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS, § 300.11, 300.81 (4th ed.

2000).

497

Interview with Haroon Quddoos (anonymized name), in Islamabad, Pakistan (Mar. 8, 2012); Interview

with Saeed Yayha (anonymized name), in Islamabad, Pakistan (Mar. 9, 2012); Interview with Azhar

Aslam (anonymized name), in Peshawar, Pakistan (May 9, 2012).

498

Interviews with Medical Health Professionals who requested anonymity, in Lahore, Pakistan (2012).

84

you don't see them, you can hear them, you know they are there."

499 According to a

strike survivor, "When the drone is moving, people cannot sleep properly or can't rest

properly. They are always scared of the drones."

500 Saeed Yayha, a day laborer who was

injured from flying shrapnel in the March 17, 2011

jirga attack and must now rely on

charity to survive, said:

I can't sleep at night because when the drones are there . . . I hear them making

that sound, that noise. The drones are all over my brain, I can't sleep. When I

hear the drones making that drone sound, I just turn on the light and sit there

looking at the light. Whenever the drones are hovering over us, it just makes me

so scared.

501

Akhunzada Chitan, a parliamentarian who occasionally travels to his family home in

Waziristan reported that people there "often complain that they wake up in the middle

of the night screaming

because they are hallucinating

about drones."

502

Interviewees also reported a

loss of appetite as a result of

the anxiety they feel when

drones are overhead. Ajmal

Bashir, an elderly man who

has lost both relatives and

friends to strikes, said that

"every person—women,

children, elders—they are all

frightened and afraid of the drones . . . [W]hen [drones] are flying, they don't like to eat

anything . . . because they are too afraid of the drones."

503 Another man explained that

"We don't eat properly on those days [when strikes occur] because we know an innocent

Muslim was killed. We are all unhappy and afraid."

504

499

Interview with Mohammad Kausar (anonymized name), in Islamabad, Pakistan (Feb. 26, 2012).

500

Interview with Ahmed Jan, in Islamabad, Pakistan (Feb. 26, 2012).

501

Interview with Saeed Yayha (anonymized name), in Islamabad, Pakistan (Mar. 9, 2012).

502

Interview with Syed Akhunzada Chitan, National Assembly Member, in Islamabad, Pakistan (May 14,

2012).

503

Interview with Ajmal Bashir (anonymized name), in Islamabad, Pakistan (Feb. 26, 2012).

504

Interview with Arman Yousef (anonymized name), in Islamabad, Pakistan (Feb. 26, 2012).

"Drones are always on my mind. It

makes it difficult to sleep. They are

like a mosquito. Even when you don't

see them, you can hear them, you

know they are there."

- Mohammad Kausar (anonymized name), father of three

85

Several Pakistani medical and mental health professionals told us that they have seen a

number of physical manifestations of stress in their Waziri patients.

505 Ateeq Razzaq

and Sulayman Afraz, both psychiatrists, attributed the phenomenon in part to Pashtun

cultural norms that discourage the expression of emotional or psychological distress.

506

"People are proud," Razzaq explained to us, "and it is difficult for them to express their

emotions. They have to show that they are strong people."

507 Reluctant to admit that

they are mentally or emotionally distressed, the patients instead "express their

emotional ill health through their body symptoms," resulting in what Afraz called

"hysterical reactions," or "physical symptoms without a real [organic] basis, such as

aches, and pains, vomiting, etcetera."

508 The mental health professionals with whom we

spoke told us that when they treat a Waziri patient complaining of generic physical

symptoms, such as body pain or "headaches, backaches, respiratory distress, and

indigestion," they attempt to determine whether the patient has been through a

traumatic experience. It is through this questioning that they have uncovered that some

of their patients had experienced drones, or lost a relative in a drone strike.

509

Mental health professionals we spoke with in Pakistan also said that they had seen

numerous cases of Post-Traumatic Stress Disorder (PTSD)

510 among their patients from

505

Interview with Sulayman Afraz (anonymized name and location), in Pakistan (2012); Interview with

Ateeq Razzaq (anonymized name and location), in Pakistan (2012); Interview with Hatim Sheikh

(anonymized name), in Peshawar, Pakistan (2012); Interview with Abbas Uddin (anonymized name and

location), in Pakistan (2012).

506

Interview with Sulayman Afraz (anonymized name and location), in Pakistan (2012); Interview with

Ateeq Razzaq (anonymized name and location), in Pakistan (2012).

507

Interview with Ateeq Razzaq (anonymized name and location), in Pakistan (2012).

508

Id.; see Interview with Sulayman Afraz (anonymized name and location), in Pakistan (2012).

509

Interview with Ateeq Razzaq (anonymized name and location), in Pakistan (2012); see also Interview

with Sulayman Afraz (anonymized name and location), in Pakistan (2012); Interview with Hatim Sheikh

(anonymized name), in Peshawar, Pakistan (2012).

510

PTSD is an anxiety disorder experienced by some individuals who have been exposed to a traumatic

event. In diagnosing PTSD, psychiatrists look for three main categories of symptoms not present before

the traumatic event took place: "intrusive recollection," which can include flashbacks and nightmares;

"avoidance of stimuli associated with the trauma and numbing of general responsiveness"; and persistent

symptoms of anxiety or "increased arousal," which can include difficulty sleeping, irritability, or an

exaggerated startle response. A

MERICAN PSYCHIATRIC ASSOCIATION, DIAGNOSTIC AND STATISTICAL MANUAL

OF

MENTAL DISORDERS, § 309.81 (4th ed. 2000); see also John H. Casada, et. al., Psychophysiologic

Responsivity in Posttraumatic Stress Disorder: Generalized Hyperresponsiveness Versus Trauma

Specificity

, 44 BIOLOGICAL PSYCHIATRY 1037 (1998).

86

Waziristan related to exposure to drone strikes and the constant presence of drones.

511

For example, one psychiatrist described a female patient of his who:

was having shaking fits, she was screaming and crying . . . . I was guessing there

might be some stress . . . then I [discovered] there was a drone attack and she had

observed it. It happened just near her home. She had witnessed a home being

destroyed–it was just a nearby home, [her] neighbor's.

512

Interviewees also described the impacts on children.

513 One man said of his young niece

and nephew that "[t]hey really hate the drones when they are flying. It makes the

children very angry."

514 Aftab Gul Ali, who looks after his grandson and three

granddaughters, stated that children, even when far away from strikes, are "badly

affected."

515 Hisham Abrar, who had to collect his cousin's body after he was killed in a

drone strike, stated:

When [children] hear the drones, they get really scared, and they can hear them

all the time so they're always fearful that the drone is going to attack them. . .

[B]ecause of the noise, we're psychologically disturbed—women, men, and

511

Interview with Sulayman Afraz (anonymized name and location), in Pakistan (2012). Afraz is a

psychiatrist who has treated patients from Waziristan whom he has diagnosed with PTSD.

Id. He

described his patients as having "the classic PTSD symptoms: restlessness, inability to sleep, flashbacks,

nightmares, [and] hyper startle reaction").

Id.; see also Interview with Ateeq Razzaq (anonymized name

and location), in Pakistan (2012) (describing treating a number of cases of PTSD related to drones);

Interview with Abbas Uddin (anonymized name and location), in Pakistan (2012).

512

Interview with Abbas Uddin (anonymized name and location), in Pakistan (2012).

513

One symptom frequently reported and requiring further research was of itchy eyes and skin, often in

children. A number of interviewees linked these symptoms with the drone strikes.

See Interview with

Waleed Shiraz (anonymized name), in Islamabad, Pakistan (Feb. 26, 2012) (attributing itchy skin to

chemicals purportedly released in drone strikes);

see also Interview with Aftab Gul Ali (anonymized

name), in Islamabad, Pakistan (Feb. 26, 2012); Interview with Noor Behram, in Islamabad, Pakistan

(Mar. 9, 2012); Interview with Haidar Nauman (anonymized name), in Islamabad, Pakistan (Mar. 9,

2012). Allergy-like symptoms can be a product of traumatic stress.

See Atul Gawande, The Itch, NEW

Y

ORKER (June 30, 2008),

http://www.newyorker.com/reporting/2008/06/30/080630fa_fact_gawande#ixzz1yrmCxIAZ. Atul

Gawande, a physician and author, is an Associate Professor at the Harvard School of Public Health and

Associate Professor of Surgery at Harvard Medical School. He has written that "[s]evere stress and other

emotional experiences can . . . give rise to a physical symptom like itching—whether from the body's

release of endorphins (natural opioids, which, like morphine, can cause itching), increased skin

temperature, nervous scratching, or increased sweating."

Id.; see also Petra C. Arck, et. al,

Neuroimmunology of Stress: Skin Takes Center Stage

, 126 J. OF INVESTIGATIVE DERMATOLOGY 1697, 1701

(2006) ("stress exerts severe skin inflammation"). In the case of North Waziristan, however, it is unclear

without further research whether the itchy symptoms are related to stress, or whether they have a physical

cause related or unrelated to strikes.

514

Interview with Khalil Arshad (anonymized name), in Islamabad, Pakistan (Mar. 9, 2012).

515

Interview with Aftab Gul Ali (anonymized name), in Islamabad, Pakistan (Feb. 26, 2012).

87

children. . . Twenty-four hours, [a] person is in stress and there is pain in his

head.

516

Noor Behram, a Waziri journalist who investigates and photographs drone strike sites,

noted the fear in children: "if you bang a door, they'll scream and drop like something

bad is going to happen."

517 A Pakistani mental health professional shared his worries

about the long-term ramifications of such psychological trauma on children:

The biggest concern I have as a [mental health professional] is that when the

children grow up, the kinds of images they will have with them, it is going to have

a lot of consequences. You can imagine the impact it has on personality

development. People who have experienced such things, they don't trust people;

they have anger, desire for revenge . . . So when you have these young boys and

girls growing up with these impressions, it causes permanent scarring and

damage.

518

The small number of trained mental health professionals

519 and lack of health

infrastructure in North Waziristan exacerbates the symptoms and illnesses described

here.

520 Several interviewees provided a troubling glimpse of the methods some

communities turn to in order to deal with mental illness in the absence of adequate

alternatives. One man said that "some people have been tied in their houses because of

their mental state."

521 A Waziri from Datta Khel—which has been hit by drone strikes

over three dozen times in the last three years alone

522—said that a number of individuals

516

Interview with Hisham Abrar (anonymized name), in Islamabad, Pakistan (Feb. 26, 2012).

517

Interview with Noor Behram, in Islamabad, Pakistan (Mar. 9, 2012).

518

Interview with Sulayman Afraz (anonymized name and location), in Pakistan (2012); See, e.g., William

Yule, et. al.,

The Long-Term Psychological Effects of a Disaster Experienced in Adolescence: 1: The

Incidence and Course of PTSD

, 41 J. CHILD PSYCHOLOGY & PSYCHIATRY 503 (2003).

519

One medical professional who works with Waziri drone victims said that he believed there were only a

few psychiatrists in the entire province. Interview with Zafar Husam (anonymized name and location), in

Pakistan (May 2012).

520

The mental health professionals we spoke with all raised concerns over the limited access to health

services in the region. According to an April 2008 report by the US Government Accountability Office

(GAO), FATA has 41 hospitals for a population of 3.1 million, and a doctor to population ratio of 1 to

6,762. U

NITED STATES GOVERNMENT ACCOUNTABILITY OFFICE, COMBATING TERRORISM: THE UNITED STATES

L

ACKS COMPREHENSIVE PLAN TO DESTROY THE TERRORIST THREAT AND CLOSE THE SAFE HAVEN IN PAKISTAN'S

F

EDERALLY ADMINISTERED TRIBAL AREAS 6 (2008), available at

http://www.gao.gov/assets/280/274592.pdf.

521

Interview with Dawood Ishaq (anonymized name), in Islamabad, Pakistan (Mar. 8, 2012).

522

See Obama 2010 Pakistan Strikes, THE BUREAU OF INVESTIGATIVE JOURNALISM,

http://www.thebureauinvestigates.com/2011/08/10/obama-2010-strikes/ (last visited Aug. 30, 2012);

Obama 2011 Pakistan Strikes

, THE BUREAU OF INVESTIGATIVE JOURNALISM,

88

"have lost their mental balance . . . are just locked in a room. Just like you lock people in

prison, they are locked in a room."

523 Some of those interviewed reported that, to deal

with their symptoms, they were able to obtain anti-anxiety medications and antidepressants.

524

One Waziri man who lost his son in a drone strike explained that people

take tranquilizers to "save them from the terror of the drones."

525 Umar Ashraf obtained

a prescription for Lexotanil to treat "the mental issues I was facing," and said that taking

the medicine makes him feel better.

526 Saeed Yayha, however, said that the prescription

the doctors gave him to deal with "the pressure in his head" does not work for him;

527

"[i]t just soothes me for half an hour but it does not last very long."

528

I

MPACTS ON EDUCATION OPPORTUNITIES

Numerous interviewees reported that drone strikes have affected young Waziris' access

to education, which is especially troubling given the impact of threats and violence by

armed non-state actors against schools,

529 and FATA's already low literacy rates.530

http://www.thebureauinvestigates.com/2011/08/10/obama-2011-strikes/ (last visited Aug. 30, 2012);

Obama 2012 Pakistan Strikes

, THE BUREAU OF INVESTIGATIVE JOURNALISM,

http://www.thebureauinvestigates.com/2012/01/11/obama-2012-strikes/ (last visited Aug. 30, 2012).

523

Interview with Ismail Hussain (anonymized name), in Islamabad, Pakistan (Feb. 26, 2012).

524

Interview with Khalil Arshad (anonymized name), in Islamabad, Pakistan (Mar. 9, 2012); Interview

with Sadaullah Wazir, in Islamabad, Pakistan (Feb. 26, 2012); Interview with Nadeem Malik (anonymized

name), in Peshawar, Pakistan (May 9, 2012); Interview with Abdul Qayyum Khan, in Peshawar, Pakistan

(May 9, 2012); Interview with Haroon Quddoos (anonymized name), in Islamabad, Pakistan (Mar. 8,

2012); Interview with Faheem Qureshi, in Islamabad, Pakistan (Mar. 2, 2012); Interview with Saeed

Yayha (anonymized name), in Islamabad, Pakistan (Mar. 9, 2012). Most did not know the names of the

medicines they were taking, but Khalil Arshad showed us his prescription for Lexotanil, a benzodiazopine

derivative, and Nadeem Malik showed us his package of escitalopram, an anti-depressant.

See Interview

with Khalil Arshad (anonymized name), in Islamabad, Pakistan (Mar. 9, 2012); Interview with Nadeem

Malik (anonymized name), in Peshawar, Pakistan (May 9, 2012).

525

Interview with Abdul Qayyum Khan, in Peshawar, Pakistan (May 9, 2012). "Tranquilizer" was the word

used by Abdul Qayyum's interpreter; he likely was referring to anti-anxiety medications.

526

Interview with Umar Ashraf (anonymized name), Islamabad, Pakistan (Mar. 9, 2012).

527

Interview with Saeed Yayha (anonymized name), in Islamabad, Pakistan (Mar. 9, 2012).

528

Id.

529

See e.g., SOCIETY FOR THE PROTECTION OF THE RIGHTS OF CHILDREN, THE STATE OF PAKISTAN'S CHILDREN

53-54 (2012) ("Schools in the conflict affected areas of FATA and Khyber Pakhtunhwa were subjected to

persistent attacks by militant forces. Countless schools were blown up causing extensive damage to

educational infrastructure. Furthermore, threats of violence prevented students and teachers from

attending schools. As a result, thousands of educational institutions especially girls school became

nonfunctional and dropout rates increased tenfold . . ."),

available at

http://www.sparcpk.org/SOPC/Education.pdf.

89

First, some of those injured in strikes reported reduced access to education and desire to

learn because of the physical, emotional, and financial impacts of the strike. Second,

some families have pulled their children out of school to take care of injured relatives or

to compensate for the income lost after the death or injury of a relative. Third, some

families reported taking their children out of school due to fear that they would be killed

in a drone strike.

One father, after seeing the bodies of three dead children in the rubble of a strike,

decided to pull his own children out of school.

531 "I stopped [them] from getting an

education," he admitted.

532 "I told them we will be finished one day, the same as other

people who were going [to school] and were killed in the drone attacks."

533 He stated

that this is not uncommon: "I know a lot of people, girls and boys, whose families have

stopped them from getting [an] education because of drone attacks."

534 Another father

stated that when his children go to school "they fear that they will all be killed, because

they are congregating."

535 Ismail Hussain, noting similar trends among the young, said

that "the children are crying and they don't go to school. They fear that their schools will

be targeted by the drones."

536

Mohammad Kausar, a father of three, explained: "Strikes are always on our minds. That

is why people don't go out to schools, because they are afraid that they may be the next

ones to be hit."

537 A college student, whose brother was killed in a drone strike, told us

that in some cases, staff and teachers also "don't come because of these drone strikes.

The principal and maybe a few nominal staff come just for presence, but, apart from

that, nobody comes . . . other people are scared to come to our places to teach us."

538

530

FATA has an overall literacy rate of 17.42%. Socio Economic Indicators, GOVERNMENT OF PAKISTAN

F

EDERALLY ADMINISTERED TRIBAL AREA,

http://fata.gov.pk/index.php?option=com_content&view=article&id=55&Itemid=91 (last visited Aug. 21,

2012).

531

Interview with Najeeb Saaqib (anonymized name), in Islamabad, Pakistan (Feb. 26, 2012).

532

Id.

533

Id.

534

Id.; see also Interview with Faheem Qureshi, in Islamabad, Pakistan (Mar. 2, 2012) (affirming that

families keep their children at home because of drones).

535

Interview with Noor Shafeeq (anonymized name), in Islamabad, Pakistan (Feb. 26, 2012).

536

Interview with Ismail Hussain (anonymized name), in Islamabad, Pakistan (Feb. 26, 2012).

537

Interview with Mohammad Kausar (anonymized name), in Islamabad, Pakistan (Feb. 26, 2012).

538

Interview with Khairullah Jan, in Islamabad, Pakistan (Feb. 29, 2012).

90

These fears are not without a legitimate basis, as drones have reportedly struck schools

in the past,

539 resulting in extensive damage to educational infrastructure, as well as the

deaths of dozens of children.

540

Children and teenagers who have stayed in school described how drones have affected

their concentration and diminished their drive to study. Faheem Qureshi, the sole

survivor of the first strike in

North Waziristan carried

out under President

Obama, was one of the top

four students in his class

before the drone strike

fractured his skull and

nearly blinded him.

541 Now,

struggling with attention,

cognitive, and emotional

difficulties, he described

how his studies have been

affected:

539

The most well-known school strike was an October 6, 2006 strike on a religious school in Bajaur that

killed over 80 people, including 69 children.

See, e.g., Yousaf Ali, Most Bajaur Victims Were Under 20,

N

EWS (Nov. 5, 2006),

http://www.thenews.com.pk/TodaysPrintDetail.aspx?ID=4043&Cat=13&dt=11/5/2006;

see also Salman

Masood,

Pakistan Says It Killed 80 Militants in Attack on Islamic School, N.Y. TIMES (Oct. 31, 2006),

http://www.nytimes.com/2006/10/31/world/asia/31pakistan.html?_r=1 (reporting on a on a religious

school in Bajaur, resulting in reportedly 81-82 killed, including 69 children). Possible child casualties also

have been reported in a number of other strikes on schools, but have not been confirmed.

See, e.g., Griff

Witte,

Blast Kills At Least 20 in Pakistan, WASH. POST (June 20, 2007),

http://www.washingtonpost.com/wp-dyn/content/article/2007/06/19/AR2007061901898.html ("Local

residents said . . . that at least two missiles fired from the drone had destroyed a religious school and

several adjacent houses, according to Rahimullah Yousefzai, a Peshawar-based journalist. . . . there might

have been as many as 50 people in the school at the time of the blast, including children.");

Suspected US

Missile Strike Kills Eight in Pakistan

, NEWS TRACK INDIA (Oct. 23, 2008),

http://www.newstrackindia.com/newsdetails/30650 ("A local journalist and tribal elder, Malik Mumtaz,

said on the telephone that all those killed and injured [in a strike on a religious school] were students aged

between 12 and 18.").

540

See Chris Woods, Over 160 Children Reported Among Drone Deaths, THE BUREAU OF INVESTIGATIVE

J

OURNALISM (Aug. 11, 2011), http://www.thebureauinvestigates.com/2011/08/11/more-than-160-

children-killed-in-us-strikes/ ("A CIA strike on a madrassa or religious school in 2006 killed up to 69

children . . .");

see also Ali, supra note 539.

541

Interview with Faheem Qureshi, in Islamabad, Pakistan (Mar. 2, 2012); see also January 23, 2009

Strike Narrative,

supra Chapter 3: Living Under Drones.

"Our minds have been diverted from

studying. We cannot learn tings

because we are always in fear of the

drones hovering over us, and it really

scares the small kids who go to

school."

- Faheem Qureshi, teenage drone strike victim

91

Our minds have been diverted from studying. We cannot learn things because we

are always in fear of the drones hovering over us, and it really scares the small

kids who go to school. . . . At the time the drone struck, I had to take exams, but I

couldn't take exams after that because it weakened my brain. I couldn't learn

things, and it affected me emotionally. My [mind] was so badly affected . . .

542

Waleed Shiraz, who was disabled in a January 2008 attack that killed his father,

described how the strike altered his goals and devastated his family. A political science

major in college, Waleed "dreamt of either leading some school in Peshawar as a

principal or becoming a lawyer or even a politician representing Pakistan."

543 When the

strike took place, he was home on his first holiday from the National University of

Modern Languages in Islamabad, spending time with his family and studying for

exams.

544 At the time, he planned to study languages. Since the strike, those plans have

radically changed:

I can't dream of going back to college. I am unemployed. No one will give me

admission into college and who is going to finance it? We are unemployed and

our financial situation is extremely poor. Out of the ten kanals of land we owned

[1

¼ acres], we have sold five [5/8 acres] and the remaining five sit idle because

my two younger brothers are too young. They can't go to school, because I can't

afford supporting them, buying their books, and paying their fees. They are home

most of the day and they are very conscious of the fact that drones are hovering

over them. [The presence of drones] intimidates them. . . . My education is

wasted.

545

Teenager Sadaullah Wazir, also stated that he has had to give up on his dreams after

losing both legs in a drone strike.

546 "Before the drone strikes started, my life was very

good. I used to go to school and I used to be quite busy with that, but after the drone

strikes, I stopped going to school now. I was happy [then] because I thought I would

become a doctor."

547

Shahbaz Kabir explained that "education was always a problem in Waziristan, but, after

the drone attacks, it got even worse. A lot of the children—most of the children—had to

stop going to school."

548 Many with whom we spoke, such as Malik Najeeb Saaqib,

542

Interview with Faheem Qureshi, in Islamabad, Pakistan (Mar. 2, 2012).

543

Interview with Waleed Shiraz (anonymized name), in Islamabad, Pakistan (Feb. 26, 2012).

544

Id.

545

Id.

546

Interview with Sadaullah Wazir, in Islamabad, Pakistan (Feb. 26, 2012).

547

Id.

548

Interview with Shahbaz Kabir (anonymized name), in Islamabad, Pakistan (Feb. 26, 2012).

92

lamented the deterioration in education and expressed concern about what it meant for

the future:

We want our children to get [an] education, to take [our story] to the world and

get exposure for what's going on here. We lag behind because of our lack of

education and lack of facilities in our area. . . .We want our girls and boys to get

[a] proper education. [We want] someone to become a doctor, someone to

become an air pilot, but just because of drone attack[s] we can't take them to

school, can't allow them.

549

Mohsin Haq, 14, explained that some of his classmates have given up on school

because "[t]hey are mentally disturbed. They can't focus. They're just too worried

about their family. They're not sure about anything, so school doesn't make sense

to them."

550 He also revealed his fears about the impacts on future generations,

and his hopes for change:

[The children in my community] are very optimistic that someday, when these

things do stop, they will continue with their life as they were before, start going to

school again. They still dream about a bright future, about the aspiring people

they want to be, the future administrators, the future principals of the schools,

and teachers and future politicians. . . . Every family, everybody, they do want to

think about their bright futures, their prosperous jobs, and their young kids. But

they can't think like that because of these drones, because of this uncertainty.

551

I

MPACTS ON BURIAL TRADITIONS AND WILLINGNESS TO ATTEND FUNERALS

Interviewees stated that the US drone campaign has undermined the cultural and

religious practices in North Waziristan related to burial, and made family members

afraid to attend funerals.

Religion plays an important role in community life in Muslim-majority North

Waziristan,

552 and Islam, like other religious and non-religious traditions, accords

549

Interview with Najeeb Saaqib (anonymized name), in Islamabad, Pakistan (Feb. 26, 2012).

550

Interview with Mohsin Haq (anonymized name), in Islamabad, Pakistan (Feb. 26, 2012).

551

Id.

552

Palwasha Kakar, Tribal Law of Pashtunwali and Women's Legislative Authority 2-3 (Afghan Legal

History Project, Harvard Law School, 2004),

available at

http://www.law.harvard.edu/programs/ilsp/research/kakar.pdf ("In the Pashtun's mind, Pashtunwali

has a religious identity in Islam . . .").

93

significant respect for the dead. Many consider it the community's duty to bury the

deceased as soon as possible after death,

553 to wash and cover the deceased,554 and to

hold a communal funeral service,

555 an event that involves recitations of prayer for the

deceased and often serves as a collective coping mechanism.

556 Proper burial

ceremonies and grieving rituals are "essential to reduc[ing] or prevent[ing]

psychological distress" during times of large-scale disaster, and thus erosion of

ceremonies attendant to death is likely to have a significant impact on the way

communities grieve and deal with the loss of strike victims.

557

Because drone strikes have targeted funerals and spaces where families have gathered to

offer condolences to the deceased,

558 they have inhibited the ability of families to hold

dignified burials. Interviewees stated that they stayed away from funerals for fear of

being targeted. According to Ibrahim Qasim of Manzar Khel, "[t]here used to be funeral

processions, lots of people used to participate. . . . But now, [the US has] even targeted

funerals, they have targeted mosques, they have targeted people sitting together, so

553

Id. ("Islamic burial rituals normally require . . . prompt burial.").

554

Id. ("Islamic burial rituals normally require four elements: washing the body, shrouding . . .").

555

Id. ("Islamic burial rituals normally require . . . funeral prayers . . ."); see also Aziz Sheikh, Death and

Dying—A Muslim Perspective

, 91 J. OF ROYAL SOCIETY OF MEDICINE 138, 138-40 (1998) (detailing Islamic

rituals and practices with respect to dying and noting that "often the dead will be buried within 24 hours,"

and "a funeral prayer is held in the local mosque, and family and community members follow the

funeral.").

556

Rajaie Batniji, Mark Van Ommeren & Benedetto Saraceno, Mental and Social Health in Disasters:

Relating Qualitative Social Science Research and the Sphere Standard

, 62 SOC. SCIENCE & MEDICINE

1853, 1855 (2006).

557

Batniji, Van Ommeren & Saraceno, supra note 556, at 1855. See also Sue Lautze & Angela Raven-

Roberts, The Vulnerability Context: Is There Something Wrong With This Picture (Sept. 23, 2003)

(unpublished manuscript presented at the FAO International Workshop on "Food Security in Complex

Emergencies, Tivoli, 23-25 September, 2003) (on file with author) ("The healing process involves

psychological as well as socio-cultural practices that enable closure, e.g., bodies need to be identified and

buried . . .").

558

Drone Blitz on Pakistan Enters Third Straight Day, GUARDIAN (June 4, 2012),

http://www.guardian.co.uk/world/2012/jun/04/15-dead-drone-pakistan;

see also Irfan Burki, 10 Killed

in Two South Waziristan Drone Attacks

, NEWS (Jun. 4, 2012), http://www.thenews.com.pk/Todays-

News-13-15090-10-killed-in-two-South-Waziristan-drone-attacks (reporting on a drone that struck

people gathered for funeral prayers, resulting in the death of up to ten individuals); Chris Woods &

Christina Lamb,

Obama Terror Drones: CIA Tactics in Pakistan Include Targeting Rescuers and

Funerals

, THE BUREAU OF INVESTIGATIVE JOURNALISM (Feb. 4, 2012),

http://www.thebureauinvestigates.com/2012/02/04/obama-terror-drones-cia-tactics-in-pakistaninclude-

targeting-rescuers-and-funerals/ (reporting that between January 2009 and February 2012,

"[m]ore than 20 civilians have [] been attacked in deliberate strikes on funerals and mourners.").

94

people are scared of everything."

559 Firoz Ali Khan provided a similar account, noting

that "not many people go to funerals because funerals have been struck by drones. Many

people are scared. They don't go to funerals because of their fear."

560 Dawood Ishaq,

who lost both his legs in a strike, confirmed this, explaining that people are reluctant to

go to the funerals of people who have been killed in drone strikes because they are afraid

of being targeted.

561

In addition, because the

Hellfire missiles fired from

drones often incinerate the

victims' bodies,

562 and leave

them in pieces and

unidentifiable, traditional

burial processes are rendered

impossible. As Firoz Ali Khan,

a shopkeeper whose father-inlaw's

home was struck,

graphically described, "These

missiles are very powerful. They destroy human beings . . .There is nobody left and small

pieces left behind. Pieces. Whatever is left is just little pieces of bodies and cloth."

563 A

doctor who has treated drone victims described how "[s]kin is burned so that you can't

tell cattle from human."

564 When another interviewee came upon the site of the strike

that killed his father, "[t]he entire place looked as if it was burned completely, so much

so that even [the victims'] own clothes had burnt. All the stones in the vicinity had

become black."

565 Ahmed Jan, who lost his foot in the March 17 jirga strike, discussed

the challenges rescuers face in identifying bodies: "People were trying to find the body

559

Interview with Ibrahim Qasim (anonymized name), in Islamabad, Pakistan (Mar. 9, 2012); see also

Interview with Hisham Abrar (anonymized name), in Islamabad, Pakistan (Feb. 26, 2012) ("A lot of

people don't go to funerals now because they're scared of drone attacks.").

560

Interview with Firoz Ali Khan (anonymized name), in Islamabad, Pakistan (Feb. 26, 2012).

561

Interview with Dawood Ishaq (anonymized name), in Islamabad, Pakistan (Mar. 8, 2012).

562

See supra note 278.

563

Interview with Firoz Ali Khan (anonymized name), in Islamabad, Pakistan (Feb. 26, 2012).

564

Interview with Zafar Husam (anonymized name and location), in Pakistan (May 2012).

565

Interview with Saad Afridi (anonymized name), in Islamabad, Pakistan (Feb. 26, 2012).

"They destroy human beings…. There

is nobody left and small pieces left

behind. Pieces. Whatever is left is just

little pieces of bodies and cloth."

- Firoz Ali Khan (anonymized), Waziri business owner

95

parts. We find the body parts of some people, but sometimes we do not find

anything."

566

One father explained that key parts of his son's burial process had to be skipped over as

a result of the severe damage to his body. "[A]fter that attack, the villagers came and

took the bodies to the hospital. We didn't see the bodies. They were in coffins, boxes.

The bodies were in pieces and burnt."

567 Idris Farid, who was injured and lost several of

his relatives in the March 17

jirga

strike, described how,

after that strike, relatives "had

to collect their body pieces

and bones and then bury them

like that."

568 The difficulty of

identifying individual corpses

also makes it difficult to

separate individuals into

different graves. Masood Afwan, who lost several relatives in the March 17

jirga strike,

described how the dead from that strike were buried: "They held a funeral for

everybody, in the same location, one by one. Their bodies were scattered into tiny

pieces. They…couldn't be identified."

569

I

MPACTS ON ECONOMIC, SOCIAL, AND CULTURAL ACTIVITIES

Those interviewed stated that the widespread fear of drones has led some people to shy

away from social gatherings, and inhibited their willingness to carry out day-to-day

activities and important community functions.

570

566

Interview with Ahmed Jan, in Islamabad, Pakistan (Feb. 26, 2012).

567

Interview with Abdul Qayyum Khan, in Peshawar, Pakistan (May 9, 2012).

568

Interview with Idris Farid (anonymized name), in Islamabad, Pakistan (Feb. 26, 2012).

569

Interview with Masood Afwan (anonymized name), in Islamabad, Pakistan (Feb. 26, 2012).

570

Importantly, virtually all the interviewees who described deterioration in community life traced it

specifically to the start of the drone program.

See, e.g., Interview with Khalil Arshad (anonymized name),

in Islamabad, Pakistan (Mar. 9, 2012) ("Before the drones, people were happy and liked to go anywhere.

Now, because of drones, people are scared and upset."); Interview with Ismail Hussain (anonymized

name), in Islamabad, Pakistan (Feb. 26, 2012) ("Before this we were all very happy. We lived a very good

life. But after these drone attacks a lot of people are victims and have lost members of their family. A lot of

"[s]kin is burned so that you can't tell

cattle from human."

- Zafar Husam, doctor who has treated drone victims

(anonymized name)

96

One interviewee stated that, "after the drones, people can't go and talk with or sit with

anybody at any time. And so they [face great difficulty carrying] on their business and

their families."

571 One man who lost a cousin in the March 17, 2011 jirga strike,

explained:

We do not come out of our villages because it's very dangerous to go out

anywhere. . . . In past we used to participate in activities like wedding gatherings

[and] different kinds of

jirgas, different kinds of funerals. . . . We used to go to

different houses for condolences, and there were all kinds of activities in the past

and we used to participate. But now it's a risk to go to any place or participate in

any activities.

572

The fears the interviewees described were not limited to ceremonial gatherings or other

large group activities. Many said that they were afraid even to congregate in groups or

receive guests in their home. Umar Ashraf, who has noticed the changes in community

dynamics over the past few years, observed that "[W]e do not like to sit like this, like

friends [gesturing in front of

him at the small circle of

interviewer, interviewee, and

translator], because we have

fear, since [they] usually

attack people when they sit in

gatherings."

573 Sameer

Rahman, whose family's

house was hit in a strike,

confessed that "there are

barely any guests who come anymore, because everyone's scared."

574 He also stated that

he does not allow his children to visit other people's homes when they have guests over,

because he believes having guests makes it more likely that the house will be attacked.

575

them, they have mental illnesses."); Interview with Shahbaz Kabir (anonymized name), in Islamabad,

Pakistan (Feb. 26, 2012) ("Before the drone attacks, our land was a prosperous land and people were

living in a peaceful way. Now, they are all the time scared and worried about the attacks"); Interview with

Abbas Kareem (anonymized name), in Islamabad, Pakistan (Feb. 26, 2012) ("[Life] was very good. It was

good. It was a life of no problems. No consequences, no fear in our hearts. We lived a very good time.").

571

Interview with Ajmal Bashir (anonymized name), in Islamabad, Pakistan (Feb. 26, 2012).

572

Interview with Sayed Majid (anonymized name), in Peshawar, Pakistan (May 9, 2012).

573

Interview with Umar Ashraf (anonymized name), Islamabad, Pakistan (Mar. 9, 2012).

574

Interview with Sameer Rahman (anonymized name) and Mahmood Muhammad (anonymized name),

in Islamabad, Pakistan (Feb. 29, 2012).

"[m]ore than two can't sit together

outside because they are scared they

might be struck by drones."

- Sadaullah Wazir, teenage drone victim

97

Sadaullah Wazir, a teenager, told us that drones have "made life quite difficult [in that]

more than two can't sit together outside because they are scared they might be struck by

drones. . . . We often discuss that too many people shouldn't sit together outside because

they are vulnerable then."

576 Another teenager told us:

We all used to get together, all our friends in the village. We used to have fun. But

now, that's not the case anymore. Earlier, in the village, we used to sit late into

the night, till one o'clock in the morning, but now everybody's habits have

changed. Everybody goes home directly in the evening.

577

Some of the Waziris interviewed described specific impacts of drone strikes on

commerce and certain economic activities, a key issue that requires further research.

One college student from

North Waziristan explained

that "Because of these

drones, people have

stopped coming or going

to the bazaars. . . . [I]t has

affected trade to

Afghanistan."

578 The

owner of a shop selling

toys in a North Waziristan

market stated that ever

since the drone strikes

began, "It's very hard for

us, we just barely get by

[with what we make in the shop]. . . . People are afraid of dying. They are scared of

drones."

579 One man, who once owned a car that he used to transport goods to and from

the rest of Pakistan, said that in the past he would agree to be hired for 200 rupees a

day.

580 Now, however, because of drones and the risks associated with their presence,

"nobody is even willing to work for 500 rupees."

581 This suggests that drones may have

575

Id.

576

Interview with Sadaullah Wazir, in Islamabad, Pakistan (Feb. 26, 2012).

577

Interview with Faheem Qureshi, in Islamabad, Pakistan (Mar. 2, 2012).

578

Interview with Khairullah Jan, in Islamabad, Pakistan (Feb. 29, 2012).

579

Interview with Firoz Ali Khan (anonymized name), in Islamabad, Pakistan (Feb. 26, 2012).

580

Id.

581

Interview with Haroon Quddoos (anonymized name), in Islamabad, Pakistan (Mar. 8, 2012).

"If I am walking in the market, I have

this fear that maybe the person walking

next to me is going to be a target of the

drone . . . . [or] . . . . Maybe they will

target the car in front of me or behind

me."

- Safdar Dawar, President of the Tribal Union of Journalists

98

resulted in increased transportation costs for anyone dependent on goods moving in or

out of FATA.

Interviewees stated that day-to-day activities, such as buying groceries or traveling to

work, were nerve-wracking. Safdar Dawar, President of the Tribal Union of Journalists,

the main association of journalists in the areas affected by US drones, described in

simple terms how people in North Waziristan make everyday decisions about how to

spend their time under the shadow of drones:

If I am walking in the market, I have this fear that maybe the person walking next

to me is going to be a target of the drone. If I'm shopping, I'm really careful and

scared. If I'm standing on the road and there is a car parked next to me, I never

know if that is going to be the target. Maybe they will target the car in front of me

or behind me. Even in mosques, if we're praying, we're worried that maybe one

person who is standing with us praying is wanted. So, wherever we are, we have

this fear of drones.

582

Fahad Mirza, who has had several relatives badly injured in strikes, made a similar

point: "We can't go to the markets. We can't drive cars. When they're hovering over

us, we're all scared. One thinks they'll drop it on our house, and another thinks it'll

be on our house, so we run out of our houses."

583

One of the most troubling community-wide consequences of the fear of gathering is, in

several interviewees' views, the erosion of the

jirga system, a community-based conflict

resolution process that is fundamental to Pashtun society.

584 Khalil Khan, the son of a

community leader killed in the March 17, 2011

jirga strike, explained that "everybody

after the strike seems to have come to the conclusion that we cannot gather together in

large numbers and we cannot hold a

jirga to solve our problems."585 Noor Khan, whose

father Malik Daud Khan presided over that

jirga and was killed, confirmed this account:

582

Interview with Safdar Dawar, President, Tribal Union of Journalists, in Islamabad, Pakistan (Feb. 29,

2012).

583

Interview with Fahad Mirza (anonymized name), in Islamabad, Pakistan (Feb. 26, 2012).

584

See generally Rare Condemnation by PM, Army Chief: 40 Killed in Drone Attack, DAWN (Mar. 18,

2011), http://dawn.com/2011/03/18/rare-condemnation-by-pm-army-chief-40-killed-in-drone-attack/;

L

UTZ RZEHAK, AFGHANISTAN ANALYSTS NETWORK, DOING PASHTO (2011), available at http://aanafghanistan.

com/uploads/20110321LR-Pashtunwali-FINAL.pdf; S

HERZAMAN TAIZI, JIRGA SYSTEM IN

T

RIBAL LIFE (2007), available at http://www.tribalanalysiscenter.com/PDFTAC/

Jirga%20System%20in%20Tribal%20Life.pdf; H

ASSAN M. YOUSUFZAI & ALI GOHAR, TOWARDS

U

NDERSTANDING PUKHTOON JIRGA (2005), available at

http://peace.fresno.edu/docs/Pukhtoon_Jirga.pdf.

585

Interview with Khalil Khan, Noor Khan, & Imran Khan, in Islamabad, Pakistan (Feb.26, 2012).

99

Everybody is scared, especially the elders. . . [T]hey can't get together and discuss

problems . . . [I]f a problem occurs, they can't resolve it, because they are all

scared that, if we get together, we will be targeted again. . . . Everybody, all the

mothers, all the wives, they have told their people not to congregate together in a

jirga

. . . . [T]hey are pleading to them not to, as they fear they will be targeted.586

The

jirga is a vitally important part of Pashtun communal and political life, providing

opportunities for community input, conflict resolution, and egalitarian decisionmaking.

587

Hampering its functions could have serious implications for the communal

order, especially in an area already devastated by death and destruction.

I

MPACTS ON COMMUNITY TRUST

Interviewees stated that US drone strikes have contributed to an undermining of

community trust, and exacerbated tensions. Many Waziris have come to believe that

paid informants help the CIA identify potential targets, including by placing small

tracking devices, often referred to as "chips," or "sims," in vehicles or houses.

588 Stories

about the CIA's use of these chips were widely reported in 2009,

589 but we have not been

able to corroborate whether any form of tracking or signaling devices were or are in fact

being used. Nonetheless, many of those whom we interviewed believe that the chips

586

Id.

587

See generally RZEHAK, supra note 584; TAIZI, supra note 584; YOUSUFZAI & GOHAR, supra note 584.

588

See Interview with Khalil Arshad (anonymized name), in Islamabad, Pakistan (Mar. 9, 2012);

Interview with Umar Ashraf (anonymized name), Islamabad, Pakistan (Mar. 9, 2012); Interview with

Ismail Hussain (anonymized name), in Islamabad, Pakistan (Feb. 26, 2012); Interview with Hayatullah

Ayoub Khan (anonymized name), in Islamabad, Pakistan (Mar. 2, 2012); Interview with Sameer Rahman

and Mahmood Muhammad (anonymized name), in Islamabad, Pakistan (Feb. 29, 2012); Interview with

Sayed Majid (anonymized name), in Peshawar, Pakistan (May 9, 2012); Interview with Khalid Raheem

(anonymized name), in Islamabad, Pakistan (Feb. 26, 2012); Interview with Najeeb Saaqib (anonymized

name), in Islamabad, Pakistan (Feb. 26, 2012).

589

See, e.g., Carol Grisanti & Mushtaq Yusufzai, Taliban-Style Justice for Alleged US Spies, NBC (Apr. 17,

2009), http://worldblog.nbcnews.com/_news/2009/04/17/4376383-taliban-style-justice-for-alleged-usspies?

lite; Noah Schachtman,

Spy Chips Guiding CIA Drone Strikes, Locals Say, WIRED (June 1, 2009),

http://www.wired.com/dangerroom/2009/06/spy-chips-guiding-cia-drone-strikes-locals-say/; Declan

Walsh,

Mysterious 'Chip' is CIA's Latest Weapon Against al Qaida Targets Hiding in Pakistan's Tribal

Belt

, GUARDIAN (May 31, 2009), http://www.guardian.co.uk/world/2009/may/31/cia-drones-tribesmentaliban-

pakistan.

100

exist, and are afraid of being planted with a chip.

590 Najeeb Saaqib, for example,

explained how he believes drones targets are chosen:

I think there are some other intelligence agencies, foreign intelligence agencies,

also working there in the shape of our own people. They grow a large beard and

take the same positions as our own people, working for those external agencies.

They put a chip or something else in places, and then a drone strikes those places.

That's what we think.

591

Hayatullah Ayoub Khan similarly explained that "drones [select] their targets with the

help of chips which are dropped in homes or cars by informants."

592 Many other

residents of North Waziristan gave similar accounts.

593 Policy analyst Samina Ahmed of

the International Crisis Group also noted this widespread belief, explaining that many

have told her that the Americans have "got people who throw parchiz [a local word for

chips] into a car, or at the side of a house, and then the drone comes and it attacks that

target."

594

These beliefs have bred a great deal of mistrust within the community, as neighbors

suspect neighbors of spying for US, Pakistani, or Taliban intelligence, and of using

drone strikes to settle feuds. As one resident of a drone-affected community explained:

"People have internal enemies and conflicts with each other. [T]o get revenge [on]

another party, they put chips on that house," which then signals to the drones that the

house is a target.

595 As a result, interviewees stated that communities are in a constant

state of alert, and suspicious of outsiders. Sayed Majid confessed that "we do not allow

[people from other villages] in the area very freely as they may have a sim [chip]. . . .

[W]e have to keep an eye on strangers especially and do not let them wander freely."

596

Farah Kamal put it more directly: "[P]eople start to think that other tribes are throwing

590

See supra note 588; see also Interview with Sameer Rahman (anonymized name) and Mahmood

Muhammad (anonymized name), in Islamabad, Pakistan (Feb. 29, 2012) ("[i]f you hold a sim in your

finger, I'm pretty sure the missile's going to come and hit your finger.").

591

Interview with Najeeb Saaqib (anonymized name), in Islamabad, Pakistan (Feb. 26, 2012).

592

Interview with Hayatullah Ayoub Khan (anonymized name), in Islamabad, Pakistan (Mar. 2, 2012).

593

See, e.g., Interview with Khalil Arshad (anonymized name), in Islamabad, Pakistan (Mar. 9, 2012)

("The Pakistani government gives money to our people for those chips to place in the houses, then the

Americans fire on those places."); Interview with Noor Behram, in Islamabad, Pakistan (Mar. 9, 2012)

("Some people say it's through GPS, some people say it's through the chips."); Interview with Sameer

Rahman (anonymized name) and Mahmood Muhammad (anonymized name), in Islamabad, Pakistan

(Feb. 29, 2012) ("The chip, the sim, is what we're looking for . . .").

594

Interview with Samina Ahmed, International Crisis Group, in Islamabad, Pakistan (Feb. 28, 2012).

595

Interview with Umar Ashraf (anonymized name), Islamabad, Pakistan (Mar. 9, 2012).

596

Interview with Sayed Majid (anonymized name), in Peshawar, Pakistan (May 9, 2012).

101

the chips. There is so much confusion and mistrust created within the tribal

communities. Drone attacks have intensified existing mistrust."

597

597

Interview with Farah Kamal (anonymized name), in Peshawar, Pakistan (May 15, 2012).

103

C

HAPTER 4: LEGAL ANALYSIS

This section provides an overview of the debate about the legality of the US targeted

killing program and drone campaign in Pakistan under both international

598 and US

domestic law. The section is intended for a non-legal audience, and thus should not be

seen as a comprehensive analysis of the complexities of international legal doctrine. It

outlines the legal issues regarding:

whether the US use of force in Pakistan violates Pakistan's sovereignty in

contravention of the U.N. Charter. This is a question of

jus ad bellum, the body of

law concerning the recourse to force, and depends on whether Pakistan has

consented to the

strikes, or whether

the US is lawfully

acting in selfdefense;

when and which

individuals may

lawfully be targeted

under applicable

international

human rights or

humanitarian law.

Regardless of one's

assessment of the

legality of the recourse to the use of force (

jus ad bellum)–the use of force against

a specific individual must also comply with either international humanitarian law

(in the context of an armed conflict) or international human rights law (outside

armed conflict). In this regard, the legality of so-called "signature strikes" is

highly suspect, as are attacks resulting in significant civilian casualties, attacks on

598

See Special Rapporteur on extrajudicial, summary or arbitrary executions, Study on Targeted Killings,

Human Rights Council, UN Doc. A/HRC/14/24/Add.6 (May 28, 2010) (by Philip Alston),

available at

http://www2.ohchr.org/english/bodies/hrcouncil/docs/14session/A.HRC.14.24.Add6.pdf (detailing the

legal regime governing "targeted killing" in great detail, and providing an authoritative and

comprehensive analysis of the legal regime governing both the legal—and illegal—use of drones to target

and kill individuals in the context of counter-terrorism).

Repeated public statements by

Pakistani officials, which intensified in

2012—declaring that US strikes are

illegal, counter-productive, and violate

the country's sovereignty—clearly cast

doubt on whether Pakistan consents to

ongoing operations.

104

first responders and funerals, and the targeting of individuals not engaged in the

Afghanistan theater, particularly those who do not pose an imminent threat;

the extent to which the US has met its legal obligations to operate transparently

and to ensure accountability for alleged rights abuses;

whether current drone policy violates US domestic law, in light of its possible

expansion of the role of the executive vis-à-vis the Congress, and the prohibition

on assassination.

The US government's extreme reluctance to provide details about particular strikes or

the targeted killing program in general has impeded much-needed democratic debate

about the legality and wisdom of US policies and practices, and stymied understanding

about their actual impacts. The US has largely refused to answer basic questions about

the drone program posed in litigation or by civil society, journalists, or public

officials.

599 US officials have made some public comments,600 and there has been

extensive reliance on selective, limited, and favorable leaks about the program to

journalists. Yet discussions about the legality of the drones policy under both under

International Humanitarian Law (IHL), the body of law governing armed conflict, and

International Human Rights Law (IHRL), often require fact-dependent contextual

599

For questions and critiques from external actors, see, e.g., Special Rapporteur, Study on Targeted

Killings

, supra note 598; Owen Bowcott, Drone Strikes Threaten 50 Years of International Law, Says

UN Rapporteur

, GUARDIAN (June 21, 2012), http://www.guardian.co.uk/world/2012/jun/21/dronestrikes-

international-law-un#start-of-comments;

US Drone Strikes 'Raise Questions'- UN's Navi Pillay,

BBC N

EWS (June 8, 2012), http://www.bbc.co.uk/news/world-asia-18363003; Letter from Amnesty

International et al. to Barack Obama, President of the United States (May 31, 2012),

available at

http://www.madre.org/index/resources-12/madre-statements-57/news/letter-to-administrationpressing-

for-transparency-on-drone-strikes-805.html;

US: Transfer CIA Drone Strikes to Military,

H

UMAN RIGHTS WATCH (April 20, 2012), http://www.hrw.org/news/2012/04/20/us-transfer-cia-dronestrikes-

military.

600

See e.g., John Brennan, Assistant to the President for Homeland Security and Terrorism, The Ethics

and Efficacy of the President's Counterterrorism Strategy, Address at the Woodrow Wilson International

Center for Scholars (Apr. 30, 2012),

available at http://www.lawfareblog.com/2012/04/brennanspeech/;

Eric Holder, Attorney General, Department of Justice, Address at Northwestern University School of Law

(Mar. 5, 2012),

available at http://www.justice.gov/iso/opa/ag/speeches/2012/ag-speech-1203051.html;

Jeh C. Johnson, General Counsel, Department of Defense, National Security Law, Lawyers and Lawyering

in the Obama Administration, Address at Yale Law School (Feb. 22, 2012),

available at

http://www.cfr.org/national-security-and-defense/jeh-johnsons-speech-national-security-law-lawyerslawyering-

obama-administration/p27448; Harold K. Koh, Legal Advisor, Department of State, The

Obama Administration and International Law, Address at the Annual Meeting of the American Society of

International Law (Mar. 25, 2010),

available at http://www.state.gov/s/l/releases/remarks/139119.htm;

Stephen W. Preston, General Counsel, Central Intelligence Agency, The CIA: Lawless Rogue or Regulated

Business?, Address at Stanford Law School (Feb. 21, 2012).

105

analysis. This report relies on information documented through extensive first-hand

accounts to aid in its analysis.

W

HETHER THE US USE OF FORCE IN PAKISTAN VIOLATES PAKISTAN'S

S

OVEREIGNTY

Article 2(4) of the U.N. Charter prohibits the threat or use of force by one state against

another.

601 Two exceptions to the Article 2(4) prohibition on the use of force are

particularly relevant to the question of whether US targeted killings in Pakistan are

lawful: (1) when the use of force is carried out with the consent of the host state;

602 and

(2) when the use of force is in self-defense in response to an armed attack or an

imminent threat, and where the host state is unwilling or unable to take appropriate

action.

603

601

UN Charter art. 2, para. 4. Some international lawyers interpret this language in Article 2(4) to indicate

a prohibition only of a subset of acts of force—those that challenge the territorial integrity or political

independence of the host state. C

HRISTINE GRAY, INTERNATIONAL LAW AND THE USE OF FORCE 24-25 (2008).

This interpretation, though, has largely been rejected by the weight of international legal opinion, which

views Article 2(4) as "outlawing any transboundary use of military force." Sean D. Murphy,

Terrorism

and the Concept of 'Armed Attack' in Article 51 of the U.N. Charter

, 43 HARV. INT'L L.J. 41, 42 (2002). The

United Kingdom articulated a version of this interpretation in the

Corfu Channel case in the first matter

adjudicated by the International Court of Justice ('ICJ'), arguing that its intrusion on Albanian territorial

waters to recover evidence regarding the destruction of two British warships did not threaten Albania's

territorial integrity or political independence, and, therefore, did not violate Article 2(4).

See generally

The Corfu Channel Case (Alban. v. U.K.), 1949 I.C.J. 4, 194 (Apr. 9). The ICJ rejected this claim outright;

while the language leaves open the possibility of a narrow rejection based on the particular facts, the ICJ

has subsequently construed Article 2(4) as a blanket ban on armed intervention.

Id.; see generally

Military and Paramilitary Activities in and Against Nicaragua (Nicar. v. US), 1986 I.C.J 14, 202 (June 27);

Case Concerning Armed Activities on the Territory of the Congo (Dem. Rep. of Congo v. Uganda), 2005

I.C.J. 168 (Dec. 19).

602

See, e.g., G.A. Res. 36/103, UN Doc A/RES/36/103 (Dec. 9, 1981) (further identifying the "duty of a

State to refrain from economic, political, or military activity in the territory of another State without its

consent."); Special Rapporteur,

Study on Targeted Killings, supra note 598, at ¶ 35; OSCAR SCHACHTER,

I

NTERNATIONAL LAW IN THEORY AND PRACTICE 114 (1991); Ashley Deeks, 'Unwilling or Unable': Toward a

Normative Framework for Extraterritorial Self-Defense

, 51 VA. J. OF INT'L LAW 483, 492 (2012); Eliav

Lieblich,

Intervention and Consent: Consensual Forcible Interventions in Internal Armed Conflicts as

International Agreements

, 29 B.U. INT'L L.J. 337, 350 (2011) ("[C]onsent can be expressed in many

forms, in different moments along the time continuum, and does not necessarily have to be explicit- as

long as it is proven genuine.").

603

Special Rapporteur, Study on Targeted Killings, supra note 598, at ¶ 45. A third exception, involving

collective security under Chapter VII of the UN Chapter, is inapplicable, since the US drone program in

Pakistan lacks UN authorization.

106

Pakistani consent:

Some analysts, citing information released by Wikileaks,604

maintain that Pakistan had, at some prior point, tacitly supported drone strikes.

605 It is

not known whether Pakistan continues to consent privately to the program today.

Repeated public statements by Pakistani officials, which intensified in 2012—declaring

that US strikes are illegal, counter-productive, and violate the country's sovereignty

606

clearly cast doubt on whether Pakistan consents to ongoing operations.

Self-defense:

In the absence of Pakistani consent, US use of force in Pakistan may not

constitute an unlawful violation of Pakistan's sovereignty if the force is necessary in selfdefense

607

in response to an armed attack

608–either as a response to the attacks of

604

Tim Lester, WikiLeaks: Pakistan Quietly Approved Drone Attacks, US Special Units, CNN (Dec. 1,

2010), http://articles.cnn.com/2010-12-01/us/wikileaks.pakistan.drones_1_drone-attacks-predatorstrikes-

interior-minister-rehman-malik?_s=PM:US (quoting former US Ambassador Anne Patterson's

recounting of a meeting with former Pakistani Prime Minister Yousaf Gilani, where he acknowledged "I

don't care if they do it as long as they get the right people. We'll protest in the National Assembly and then

ignore it.").

605

See, e.g., Mohammad I. Aslam, Wazirstan: The Drone Delusion, 3 SOUTH ASIA JOURNAL 55 (Jan. 2012),

available at

http://southasiajournal.net/issues/south-asia-journal-issue-3-january-2012/.

606

See, e.g., President Zardari Asks US to End Drone Strikes, Remove Mistrust, Dawn (Sept. 16, 2012),

http://dawn.com/2012/09/16/president-zardari-urges-us-to-immediately-cease-drone-strikes/ (citing

the spokesman to Pakistani President Asif Ali Zardari as saying that, in a meeting with US special envoy to

Afghanistan and Pakistan Marc Grossman, Zardari "reiterated his call for an end to the drone attacks,

terming them counterproductive in the fight against militancy and in the battle of winning hearts'");

Pakistan Condemns 'Illegal' US Drone Strikes

, REUTERS (June 4, 2012),

http://tribune.com.pk/story/388730/pakistan-condemns-illegal-us-drone-strikes/ (referencing

statement by the Pakistani Foreign Ministry, declaring drone strikes to be "illegal" and a violation of

country's sovereignty);

Pakistan Says US Not Listening: Drone Strikes Must Stop, REUTERS (Apr. 26,

2012), http://www.reuters.com/article/2012/04/26/us-pakistan-minister-dronesidUSBRE83P0AM20120426

(citing Pakistani Foreign Ministry Hina Rabbani Khar, who declared in April

2012 that "[o]n drones, the language is clear: a clear cessation of drone strikes. I maintain the position

that we'd told them categorically before. But they did not listen. I hope their listening will improve.").

607

UN Charter art. 51. Note that there has been debate about whether Article 51 applies to the use of force

against non-state actors;

see, e.g., Legal Consequences of the Construction of a Wall in the Occupied

Palestinian Territory, Advisory Opinion, 2004 I.C.J. 136, 194 (July 9) (holding that Article 51 had "no

relevance" to attacks not "imputable to a foreign state.");

see also BARRY E. CARTER & ALLEN S. WEINER,

I

NTERNATIONAL LAW 981 (6th ed. 2011) ("[T]he international community has generally been critical of the

use of force in self-defense against non-state terrorists."); O

SCAR SCHACHTER, INTERNATIONAL LAW IN

T

HEORY AND PRACTICE 165 (1991) (expressing "substantial doubts" about whether Article 51 sanctions the

use of force against terrorist groups when no state has been "guilty of an armed attack" or has "directed or

controlled the terrorists in question).

But see Legal Consequences of the Construction of Wall, Advisory

Opinion, 2004 I.C.J. 207, at 215 (July 9) (separate opinion of Judge Higgins) ("There is, with respect,

nothing in the text of Article 51 that thus stipulates that self-defense is available only when an armed

attack is made by a state.").

608

International Court of Justice legal precedent also casts doubt on whether terrorist acts within

Pakistan today can constitute "armed attacks" on the US and thus are sufficient to give rise to a right to

self-defense under Article 51.

See Military and Paramilitary Activities in and Against Nicaragua, supra

107

September 11, 2001,

609 or as anticipatory self-defense to mitigate threats posed by nonstate

groups in Federally Administered Tribal Areas (FATA).

610 For the use of force to be

lawful, the host state must also be shown to be "unwilling or unable to take [the

appropriate steps, itself, against the non-state group]."

611 Legal experts, including the

current U.N. Special Rapporteur on extrajudicial, summary or arbitrary executions,

Christof Heyns, have questioned whether "killings carried out in 2012 can be justified as

in response to [events] in 2001," noting that "some states seem to want to invent new

laws to justify new practices."

612 "Anticipatory" self-defense has been offered as a narrow

exception,

613 invoked to prevent an attack that is "instant, overwhelming, and leaving no

note 601, at 195 (distinguishing an 'armed attack' from mere 'frontier incidents');

see also GARY SOLIS, THE

L

AW OF ARMED CONFLICT: INTERNATIONAL HUMANITARIAN LAW IN WAR 153 (2010) ("The SLA was no more

than a criminal conspiracy."); Mary Ellen O'Connell,

Unlawful Killing with Combat Drones 14 (Notre

Dame Law School, Legal Studies Research Paper No. 09-43, 2010) (arguing that terrorist attacks "are

generally treated as criminal acts because they have the hallmarks of crime, not armed attacks that give

rise to the rights of self-defense"),

available at http://ssrn.com/abstract=1501144. But see NILS MELZER,

T

ARGETED KILLING IN INTERNATIONAL LAW 52 (2008) ("[M]ost authors agree that massive terrorist attacks,

such as those carried out in New York City and Washington DC on 11 September 2001, or regular terrorist

attacks of a comparatively minor scale, such as the frequent Palestinian suicide bombings carried out in

Israel, can potentially qualify as an 'armed attack' within the meaning of Article 51 UN Charter.").

609

See, e.g., Brennan, supra note 600 ("[T]he United States is an armed conflict with al-Qa'ida, the

Taliban, and associated forces, in response to 9/11 attacks, and we may also use force consistent with our

inherent right to self-defense."); Holder,

supra note 600 ("[A]nd international law recognizes the

inherent right of national self-defense. . ."); Koh,

supra note 600 ("[T]he United States is in an armed

conflict with al-Qaeda, as well as the Taliban and associated forces, in response to the horrific 9/11

attacks, and may use force consistent with its inherent right to self-defense under international law.").

610

See, e.g., Brennan, supra note 600 ("[W]e conduct targeted strikes because they are necessary to

mitigate an actual ongoing threat — to stop plots, prevent future attacks, and save Americans lives.");

Holder,

supra note 600 ("[T]he US government's use of lethal force in self defense against a leader of al

Qaeda or an associated force who presents an imminent threat of violent attack would not be unlawful.").

611

Deeks, supra note 602, at 487-88; see also Special Rapporteur, Study on Targeted Killings, supra 598,

at ¶ 35 ("[A] targeted killing conducted by one state in the territory of a second state does not violate the

second State's sovereignty if . . . . the first, targeting, State has a right under international law to use force

in self-defense under Article 51 of the UN Charter, because . . . . the second state is willing or unable to

stop armed attacks against the first State launched from its territory.").

612

Bowcott, supra note 599 (citing the Special Rapporteur's further warning that the US drone campaign

threatens "50 years of international law," and questioning whether "we [are] to accept major changes to

the international legal system which has been in existence since world war two and survived nuclear

threats").

613

See, e.g., THOMAS M. FRANCK, RECOURSE TO FORCE: STATE ACTION AGAINST THREATS AND ARMED ATTACKS

2 (2002) (describing the UN Charter as a "constitutive instrument capable of organic growth"); William C.

Bradford,

The Duty to Defend Them: A Natural Law Justification for the Bush Doctrine of Preventative

War

, 79 NOTRE DAME L. REV. 1365 (2004); Michael Glennon, The Fog of Law: Self-Defense, Inherence,

and Incoherence in Article 51 of the United Nations Charter

, 25 HARV. J.L. & PUB. POL'Y 539, 557-58

(2002). Note, however, that this interpretation is in tension with the text of Article 51 of the UN Charter,

which permits invocations of self-defense only in response to an armed attack. UN Charter art. 51

("Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if

108

choice of means, and no moment of deliberation."

614 There is little publicly available

evidence to support a claim that each of the US targeted killings in northwest Pakistan

meets these standards. Indeed, on currently available evidence, known practices–such

as signature strikes, and placing individuals on kill lists for extended periods of time

615

raise significant questions about how the self-defense test is satisfied.

an armed attack occurs against a Member of the United Nations."). Many states have questioned the

anticipatory self-defense doctrine. Scholar Christine Gray has observed that "the vast majority of states

rejected [claims of anticipatory self-defense] before the events of 9/11." C

HRISTINE GRAY, INTERNATIONAL

L

AW AND THE USE OF FORCE 10 (2008). Writing in 2008, Gray noted that despite the position in favor of

anticipatory self-defense of powerful nations such as the US, the United Kingdom, and Israel, "differences

persist today."

Id. at 160. Gray goes on to note that states rarely expressly invoke the doctrine, "a clear

indication of the doubtful status of this justification for the use of force."

Id. at 161.

614

Special Rapporteur, Study on Targeted Killings, supra note 598, at ¶ 45; see also Letter from Daniel

Webster, US Secretary of State, to Lord Ashburton, (Aug. 8, 1842),

in CARTER & WEINER, supra note 607,

at 936-37. Webster's statement, which emerged from a diplomatic incident between the US and U.K. over

the killing of US citizens in British Canada in 1837 (known as the

Caroline case), has come to be the

customary international legal standard for preemptive self-defense. A recent Congressional Research

Service report has noted that US authorities have sought to expand the definition of imminence in the

case of non-state terrorist threats. J

ENNIFER ELSEA, CONG. RESEARCH SERV., 7-5700, LEGAL ISSUES RELATED

TO THE LETHAL TARGETING OF

US CITIZENS SUSPECTED OF TERRORIST ACTIVITIES 14 (2012) That report notes

that this "proposed redefinition of 'imminence' as a requirement for justifying the use of force in self

defense on the territory of another country may pose challenges to the international law regarding the use

of force. The standard definition of imminence from the

Caroline case, 'instant, overwhelming, and

leaving no choice of means and no moment for deliberation,' appears to have been completely reversed in

the case of a non-state actor).

Id. at 20.

615

Jo Becker & Scott Shane, Secret 'Kill List' Proves a Test of Obama's Principles and Will, N.Y. TIMES

(May 29, 2012), http://www.nytimes.com/2012/05/29/world/obamas-leadership-in-war-on-alqaeda.

html?pagewanted=all.

109

Further, it must be shown that the host state is "unwilling or unable to take [the

appropriate steps against

the non-state group]."

616

Pakistan has at times

failed to act decisively

against non-state

groups,

617 raising

questions about its ability

and willingness to take

necessary steps. At others,

however, it has also shown

a willingness to take

action.

618 Any such action

by Pakistan must,

however, also comport with all IHRL and IHL concerning the use of force (see below for

a discussion on

jus in bello considerations).

616

Deeks, supra note 602, at 487-88. See also Special Rapporteur, Study on Targeted Killings, supra 598,

at ¶ 35 ("[A] targeted killing conducted by one state in the territory of a second state does not violate the

second State's sovereignty if . . . . the first, targeting, State has a right under international law to use force

in self-defense under Article 51 of the UN Charter, because . . . . the second state is willing or unable to

stop armed attacks against the first State launched from its territory.").

617

See, e.g., Jaysharee Bajoria and Eben Kaplan, Backgrounder: The ISI and Terrorism: Behind the

Accusations

, COUNCIL ON FOREIGN RELATIONS (May 4, 2011), http://www.cfr.org/pakistan/isi-terrorismbehind-

accusations/p11644;

Bob Gates, America's Secretary of War, CBS NEWS (May 17, 2009),

http://www.cbsnews.com/2102-18560_162-5014588.html?tag=contentMain;contentBody (noting

Defense Secretary Robert Gates conceding that "to a certain extent, [Pakistan] play[s] both sides");

Pakistan Helping Afghan Taliban- NATO

, BBC NEWS (Feb. 1, 2012), http://www.bbc.co.uk/news/worldasia-

16821218 (citing a leaked 2012 NATO report claiming that "Pakistan's manipulation of the Taiban

senior leadership continues unabashed."); Declan Walsh & Eric Schmitt, New Bold From Militants Poses

Risk to US-Pakistan Ties, N.Y. T

IMES (July 30, 2012),

http://www.nytimes.com/2012/07/31/world/asia/haqqani-network-threatens-us-pakistanities.

html?pagewanted=1&_r=2&nl=todaysheadlines&emc=edit_th_20120731 (maintaining that the

Haqqani Network, a non-state group affiliated with the Taliban, operates "unmolested by the Pakistani

military" in North Waziristan").

618

Interview with Samina Ahmed, International Crisis Group, in Islamabad, Pakistan (Feb. 28, 2012)

("It's a pattern we've seen since 2002, where the Pakistani military has delivered foreign Al-Qaeda in

return for benefits."). Pakistan has arrested dozens of senior Al-Qaeda leaders, including Khalid Sheikh

Mohammed, and undertaken operations against militant groups in Swat Valley and parts of FATA.

U.N. Special Rapporteur on

extrajudicial, summary or arbitrary

executions Christof Heyns, has

questioned whether "killings carried out

in 2012 can be justified as in response

to [events] in 2001."

110

C

IRCUMSTANCES IN WHICH INDIVIDUALS MAY LAWFULLY BE LETHALLY

T

ARGETED

Separately from the question of whether US use of force in Pakistan violates Pakistani

sovereignty, the legality of strikes against particular individuals turns on their

compliance with IHL and/or IHRL. US strikes that occur outside the context of any

armed conflict are governed by IHRL law. If an armed conflict exists, both IHRL, and

IHL, as the

lex specialis ("law governing a specific subject matter"), apply. 619

T

HE EXISTENCE OF AN ARMED CONFLICT IN PAKISTAN

The existence of an armed conflict is determined according to objective legal criteria.

620

In the context of a non-international armed conflict (insofar as a "conflict" exists in

Pakistan between the US and others, it is a non-international conflict because it involves

non-state actors), factors such as whether the violence reaches a minimum level of

intensity and duration,

621 and involves a sufficiently identifiable and organized nonstate

group,

622 are relevant.

619

Special Rapporteur, Study on Targeted Killings, supra note 598, at ¶ 29; see also INTERNATIONAL

C

OMMITTEE OF THE RED CROSS, INTERNATIONAL HUMANITARIAN LAW AND OTHER LEGAL REGIMES: INTERPLAY

IN

SITUATIONS OF VIOLENCE (2003), available at

http://www.icrc.org/eng/assets/files/other/interplay_other_regimes_nov_2003.pdf ("In short, the

participants [of the XXVIIth Round Table on Current Problems in Humanitarian Law] agreed that the

existence of an armed conflict could permit the suspension of the application of derogable human rights

but only to the extent necessary, for the limited duration of exceptional events justifying their suspension

and subject to compliance with certain precise conditions. At the same time, a consensus emerged that,

even in this hypothesis of conflict, at least the non-derogable rules of human rights law continue to apply

and to complement IHL.").

620

See Sylvain Vité, Typology of Armed Conflicts in International Law: Legal Concepts and Actual

Situations

, 91 INT. REV. OF THE RED CROSS 69, 72 (2009) (noting the Geneva Conventions specified that

"international humanitarian law was. . . . no longer based solely on the subjectivity inherent in the

recognition of the state of war, but was to depend on verifiable facts in accordance with objective

criteria").

621

See Int'l Comm. of the Red Cross, How is the Term "Armed Conflict" Defined in International

Humanitarian Law?

(Mar. 2008) (laying out customary IHL); see also Additional Protocol II to the

Geneva Conventions of 12 August 1949, and Relating to the Protection of Non-International Armed

Conflicts, June 8, 1977, art. 1(2), 1125 UNTS 609,

available at

http://www.icrc.org/ihl.nsf/full/475?opendocument (requiring that the conflict amount to more than

"situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence and

other acts of a similar nature") [hereinafter Protocol II].

111

US officials have been quick to apply IHL without establishing that the requisite

threshold for its application has been met. Yet numerous experts have raised questions

about whether the US is, in fact, in an armed conflict with all of the groups whose

members the US has targeted. This is because of factors such as the lack of

centralization and organization within some non-state groups,

623 and the existence of

only sporadic and isolated attacks by some groups.

624

The treaty has not yet been ratified by the US.

See id. Nonetheless, its ratification has been recommended

by both Presidents Reagan and Obama.

See Message from Ronald Regan, President of the US, to the

Senate Transmitting a Protocol to the 1949 Geneva Conventions (Jan. 29, 1987),

available at

http://www.reagan.utexas.edu/archives/speeches/1987/012987b.htm; Press Release, White House, Fact

Sheet: New Actions on Guantanamo and Detainee Policy (Mar. 7, 2011),

available at

http://www.lawfareblog.com/wp-content/uploads/2011/03/Fact_Sheet_-

_Guantanamo_and_Detainee_Policy.pdf. The treaty has been ratified by 166 countries.

See Protocol II,

supra

. Further, many of its provisions have been incorporated into customary law. Special Rapporteur,

Study on Targeted Killings

, supra note 598, at ¶ 52.

622

Int'l Comm. of the Red Cross, supra note 621, at 5; see Protocol II, supra note 621, at art. 1(2) (holding

that the conflict must pit "armed forces" against "dissident armed forces or other organized armed groups

which, under responsible command, exercise such control over a part of its territory as to enable them to

carry out sustained and concerted military operations and to implement this Protocol"); Special

Rapporteur,

Study on Targeted Killings, supra note 598, at ¶ 52; Prosecutor v. Tadic, Case No. IT-94-1-IA,

Appeals Judgment, at ¶ 120 (July 15, 1999) (defining an organized group as one that "normally has a

structure, a chain of command and a set of rules as well as outward symbols of authority.").

623

Paul Pillar, Still Fighting Bush's GWOT, CONSORTIUM NEWS (June 23, 2012),

http://consortiumnews.com/2012/06/23/still-fighting-bushs-gwot/ ("[T]here is no distinct entity called

Al Qaeda that provides a sound basis for defining and delimiting an authorized use of military force.");

see

also

Kenneth Anderson, Targeted Killing in U.S Counterterrorism Strategy and Law 4 (Series on The

Brookings Institution, Georgetown University Law Center and the Hoover Institution Series on

Counterterrorism and American Statutory Law, No. 9, 2009),

available at

http://www.brookings.edu/research/papers/2009/05/11-counterterrorism-anderson ("Islamist terror

appears to be fragmenting into loose networks of shared ideology and aspiration rather than vertical

organizations linked by command central."); Bruce Hoffman,

The Changing Face of Al Qaeda and the

Global War on Terrorism

, 27(6) STUD. IN CONFLICT & TERRORISM 549, 552 (2004) (outlining that Al

Qaeda is "more akin to an ideology," "diffuse and amorphous," and "less centralized with more opaque

command and control relationships.").

624

In addition, the US policy lumps together Al Qaeda, the Taliban, and associated forces, from the TTP

and Laskhar-e-Taiba to the Haqqani Network and Hezb-e-Islami Gulbuddin, all of which have different

agendas and methodologies. This characterization has been challenged.

See, e.g., AMNESTY

I

NTERNATIONAL, UNITED STATES OF AMERICA: 'TARGETED KILLING' POLICIES VIOLATE THE RIGHT TO LIFE 12

(2012). Indeed, as one international law scholar has argued, to treat these disparate groups as a single

entity would be "akin to claiming that not only could the Korean war, the Vietnam war, and the Cuban

Missile Crisis . . . be considered part of a single armed conflict . . . but that anyone, or any group,

suspected of holding Communist opinions, anywhere around the globe, would also be seen as party to the

conflict." N

OAM LUBELL, EXTRATERRITORIAL USE OF FORCE AGAINST NON-STATE ACTORS 96 (2010).

112

D

RONE STRIKES UNDER INTERNATIONAL HUMANITARIAN LAW

If there is an armed conflict, the legality of any drone strike must then be evaluated in

accordance with IHL, including particularly the fundamental principles of distinction,

625

proportionality,

626 humanity,627 and military necessity.628

Distinction is particularly challenging in FATA, because fighters regularly intermingle

with civilians, engage in

routine activities and do not

wear uniforms. Nonetheless,

militaries engaged

in an armed conflict must

always attempt to

distinguish between legitmate

and illegitimate

targets for an attack.

Generally, "the civilian population as such, as well as individuals civilians, shall not be

the object of attack."

629 Civilians lose this protection when they "take a direct part in

hostilities."

630 Under the formulation of the International Committee of the Red Cross

(ICRC) of what constitutes direct participation in hostilities, the act committed must

625

Protocol II, supra note 621, at art. 13(2) ("The civilian population as such, as well as individual

civilians, shall not be the object of attack. Acts or threats of violence the primary purpose of which is to

spread terror among the civilian population are prohibited.").

626

JEAN-MARIE HENCKAERTS & LOUISE DOSWALD-BECK, INTERNATIONAL COMMITTEE OF THE RED CROSS,

C

USTOMARY INTERNATIONAL HUMANITARIAN LAW: VOL. 1: RULES 46 (2006) ("Launching 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, is prohibited.").

627

Robin Coupland, Humanity: What is it and How Does it Influence International Law?,83 INT. REV. OF

THE

RED CROSS 969, 984, http://www.icrc.org/eng/resources/documents/misc/57jrlm.htm

("Humanity . . . limits, to the greatest extent possible, the effects of armed violence on people's security

and health. Importantly, it extends to restraining the capacity for armed violence so that humans can live

in a peaceable, constructive society in which, for instance, family life, education and commerce, i.e.,

humanity-humankind, can flourish.").

628

INT'L COMM. OF THE RED CROSS, INTERPRETIVE GUIDANCE ON THE NOTION OF DIRECT PARTICIPATION IN

THE

HOSTILITIES UNDER HUMANITARIAN LAW 77 (2009) ("[T]he kind and degree of force which is

permissible against persons not entitled to protection against direct attack must not exceed what is

actually necessary to accomplish a legitimate military purpose in the prevailing circumstances."),

available at

http://www.icrc.org/eng/assets/files/other/icrc-002-0990.pdf.

629

Protocol II, supra note 621, at art. 13(2).

630

Id. at art. 13(3).

US officials have been quick to apply

IHL without establishing that the

requisite threshold for its application

has been met.

113

adversely and directly affect the opposing party in a concrete manner or lead to the loss

of life or property as part of a campaign in support of one party to a conflict.

631 This

definition adopts an approach focused on specific hostile acts of a certain magnitude

rather than organizational membership or more indirect forms of support.

632 The ICRC

has further distinguished between civilians who participated in specific acts and those

who maintain a continuous combatant function (CCF) by virtue of involvement on a

"persistently recurrent basis."

633 While a civilian participating in a specific act becomes a

permissible target during the execution of,

634 and, in some formulations, the

preparation of and deployment to and from the particular act,

635 a person who

maintains CCF status, under the ICRC formulation, may be targeted at any time. The

recognition under IHL that, at times, a civilian can become akin to a regular combatant

makes it "imperative that the other constituent parts of the [ICRC's Interpretive]

Guidance [on the Notion of Direct Participation in the Hostilities Under Humanitarian

Law] (threshold of harm, causation, and belligerent nexus) not be diluted."

636 Even

when a person is deemed to be a legitimate target of an attack, the attack must also

satisfy IHL's other core requirements. At a minimum, any attack must serve a legitimate

military objective, and the expected harm or risk to civilians must not outweigh the

expected military objective.

The research conducted for this study raises serious concerns about the compliance of

particular strikes, and targeted killing trends and practices, with IHL. These legal

concerns include questions regarding:

631

INT'L COMM. OF THE RED CROSS, supra note 628, at 44.

632

Id. at 46; See also Special Rapporteur, Study on Targeted Killings, supra note 598, at ¶ 63-64.

633

INT'L COMM. OF THE RED CROSS, supra note 628, at 44. The principle of 'continuing combatant function'

has been criticized by those who believe it provides too little and too much protection for civilians in

situations of conflict.

See, e.g., Special Rapporteur, Study on Targeted Killings, supra note 598, at ¶ 66

("Creation of the CCF category also raises the risk of erroneous targeting of someone who, for example,

may have disengaged from their function."); Bill Boothby, "

And For Such Time As": The Time Dimension

to Direct Participation in Hostilities

, 42 N.Y.U. J. INT'L. L. & POL. 741, 753-58 (2010) (questioning the

ICRC formulation of CCF and counseling 'consideration' of the US position in opposition to the existence

of the category); Human Rights Institute, Columbia Law School, Targeting Operations with Drone

Technology: Humanitarian Law Implications 18-21 (Mar. 25, 2011) (Background Note for the American

Society of International Law Annual Meeting),

available at

http://www.law.columbia.edu/ipimages/Human_Rights_Institute/BackgroundNoteASILColumbia.pdf.

634

Id.

635

Kenneth Watkin, Opportunity Lost: Organized Armed Groups and the ICRC 'Direct Participation in

Hostilities' Interpretive Guidance

, 42 N.Y.U. J. INT'L. L. & POL. 640, 692 (2010) ("Carrying out an attack

or preparing to do so would constitute taking direct part in hostilities.").

636

Special Rapporteur, Study on Targeted Killings, supra note 598, at ¶ 67.

114

individual strikes, including those on mosques, funerals, schools, or meetings for

elders to gather and resolve community disputes, where large numbers of

civilians are present. Even when such strikes are aimed at one or more

individuals who may be deemed legitimate military targets, the presence of large

numbers of civilians in such spaces may make the strike disproportionate. Strikes

that result in large numbers of civilian deaths also raise questions about whether

adequate precautions

in attack were taken;

signature strikes, which

reportedly are based on

behavior patterns

observed from on high

and interpreted

thousands of miles

away. The practice of

such strikes raises

concerns about

whether they are

conducted with the

proper safeguards to ensure that they strike lawful targets;

637

637

Becker & Shane, supra note 615.

"[I]f civilian 'rescuers' are indeed

being intentionally targeted, there is

no doubt about the law: those strikes

are a war crime."

- Christof Heyns, U.N. Special Rapporteur on

extrajudicial, summary or arbitrary executions

115

strikes on rescuers and first responders, as documented in the Living Under

Drones Chapter.

638 These may violate the principle of distinction, and also

contravene specific rules protecting the wounded and humanitarian assistance.

639

It might be that, under the ICRC formulation of the CCF test, a fighter could be

lawfully targeted even while the person is at that moment rescuing someone.

640

However, available evidence raises very serious concerns about such strikes,

given that they occur in areas where civilians are very likely to be present. The

short time between first and second strikes at rescue sites further raises questions

over how an individual's

lawful target status could

be properly determined.

Evidence uncovered by

our research team that

humanitarian actors may

not attend to strikes

immediately because of

second-strike fears is

especially troubling.

641 As

U.N. Special Rapporteur

on extrajudicial, summary

or arbitrary executions

Christof Heyns

observed, "[I]f civilian 'rescuers' are indeed being intentionally targeted, there is

no doubt about the law: those strikes are a war crime;"

642

the proportionality of particular strikes, in light of the higher-end estimates of

civilian casualties noted in the Numbers chapter.

643 Recent revelations regarding

638

See infra Chapter 3: Living Under Drones.

639

See HENCKAERTS & DOSWALD-BECK, supra note 626, at 79, 105, 396 (explaining the rules with regards

to the search for, collection and evacuation of the wounded, sick and shipwrecked (Rule 109); Medical

Personnel (Rule 25); and Humanitarian Relief Personnel (Rule 31)).

640

See e.g., Robert Chesney, Is DPH the Relevant Standard in Pakistan? An Important Element in the

Debate Missing from BIJ's report

, LAWFARE (Feb. 6, 2012), http://www.lawfareblog.com/2012/02/isdph-

the-relevant-standard-in-pakistan-an-important-element-in-the-debate-missing-from-bijs-report/.

641

See infra Chapter 3: Living Under Drones.

642

Jack Serle, UN Expert Labels CIA Tactic Exposed by Bureau 'a War Crime', THE BUREAU OF

I

NVESTIGATIVE JOURNALISM (June 21, 2012), http://www.thebureauinvestigates.com/2012/06/21/unexpert-

labels-cia-tactic-exposed-by-bureau-a-war-crime/.

The data we gathered, reviewed in

light of parallel political events and

key moments of US-Pakistani

relations, suggests a troubling

correlation between events of

political significance and the

intensity of drone strikes.

116

the Obama administration's "guilt by association"

644 approach to counting dronestrike

casualties, classifying 'all military-age males' as 'combatants' absent

exonerating evidence, reinforce these concerns;

645

the necessity of particular strikes, in light of research we conducted on the timing

and intensity of drone attacks between January 2010 and June 2012, as well as

analysis done by the Congressional Research Service. The data we gathered,

reviewed in light of parallel political events and key moments in US-Pakistani

relations, suggests a troubling correlation between events of political significance

and the intensity of drone strikes. Take, for example, the events that followed the

arrest of CIA contractor Raymond Davis, who reportedly killed two men in

Pakistan on January 27, 2010. Pakistani authorities arrested Davis on that same

day, January 27. Although the US had launched six strikes in the three weeks

preceding his arrest (January 6-27), it did not strike again for over three weeks

after the incident. During this period, US authorities engaged in a high-level

lobbying campaign to ensure the release of Davis.

646 Some attribute the pause in

drone strikes to US efforts to secure Davis's release and/or to "avoid angering a

population already riveted by the Davis arrest."

647 Then, in the period between

February 20 and Davis's eventual release on March 16, the US launched eleven

643

See infra Chapter 2: Numbers; US Drone Strikes 'Raise Questions', supra note 599 (quoting UN High

Commissioner for Human Rights Navi Pillay after a June 2012 trip to Pakistan as stating that "drone

attacks do raise serious questions about compliance with international law, in particular the principle of

distinction and proportionality").

644

Becker & Shane, supra note 615.

645

Overly permissive criteria after the fact, together with serious public accountability and transparency

deficits, provide little assurance that each use of lethal force strictly complies with the relevant law.

Indeed, in many other contexts, a failure to examine carefully the legality of government use of force after

a killing has led to development of a culture of impunity and heightened the risk of unlawful killing.

See,

e.g.

, U.N. Special Rapporteur on extrajudicial, summary or arbitrary executions, Study on Police

Oversight Mechanisms

, Human Rights Council, UN Doc A/HRC/14/24/Add.8 (May 28, 2010) (by Philip

Alston),

available at

http://www2.ohchr.org/english/bodies/hrcouncil/docs/14session/A.HRC.14.24.Add8.pdf; H

UMAN

R

IGHTS WATCH, URBAN POLICE VIOLENCE IN BRAZIL: TORTURE AND POLICE KILLINGS IN SÃO PAULO AND RIO

DE

JANEIRO AFTER FIVE YEARS 13 (1993) (arguing that failure to sanction police officers, including one who

had killed 44 civilians allegedly in acts of defense of human life, fostered a culture of impunity in São

Paulo state, contributing to an increase in police killing, which totaled over 1400 in 1992 alone).

646

Mark Mazzetti, Ashley Parker, Jane Perlez & Eric Schmitt, American Held in Pakistan Worked With

C.I.A.

, N.Y. TIMES (February 21, 2012),

http://www.nytimes.com/2011/02/22/world/asia/22pakistan.html?_r=1&pagewanted=all.

647

Ishtiaq Mashud, Al Qaeda Figure Believed Killed in US Drone Strike, WASH. TIMES (Feb. 21, 2011),

http://www.washingtontimes.com/news/2011/feb/21/al-qaeda-figure-believed-killed-us-dronestrike/?

page=all.

117

strikes. Following the March 16 release, with the exception of the March 17

jirga

strike,

648 the US did not authorize another strike afterwards for almost a month

(until April 13).

649 The Congressional Research Service (CRS) reached a similar

conclusion: "[m]essaging to Pakistan appears to continue to be part of the

[drone] program's intent."

650 Apart from the Raymond Davis incident, CRS cited

two additional examples of the intensification of drone strikes related to political

events.

651

I

N THE ABSENCE OF ARMED CONFLICT, ONLY INTERNATIONAL HUMAN RIGHTS LAW

A

PPLIES

IHRL permits the intentional use of lethal force only when strictly necessary and

proportionate. Thus, "targeted killings" as typically understood (intentional and

premeditated killings) cannot be lawful under IHRL, which allows intentional lethal

force only when necessary to protect against a threat to life, and where there are "no

other means, such as capture or non-lethal incapacitation, of preventing that threat to

life."

652 There is little public evidence that many of the targeted killings carried out fulfill

this strict legal test. Indeed, and as described above, many particular strikes and

practices suggest breaches of the test, including: signature strikes; strikes on rescuers;

the administration's apparent definition of "militant;" the lack of evidence of imminent

threat; and the practice of extensive surveillance and presence on a list before killing.

648

See infra Chapter 3: Living Under Drones.

649

For full details, refer to Appendix C. In a similar vein, strikes fluctuated significantly during the time

period immediately before and after the May 2012

New York Times investigative piece on targeted killing.

Becker & Shane,

supra note 615. The revelations in the Times piece were widely perceived as a boon to

Obama's popularity at home.

See, e.g., Charles Krauthammer, Barack Obama: Drone Warrior, WASH.

P

OST (May 31, 2012), http://www.washingtonpost.com/opinions/barack-obama-dronewarrior/

2012/05/31/gJQAr6zQ5U_story.html. The US launched nine strikes across North Waziristan in

the seven days before and after the

Times piece although it had not launched a single strike in the two

weeks preceding that period and only two in the subsequent two weeks. For full details, refer to Appendix

B.

650

K. ALAN KRONSTADT, CONG. RESEARCH SERV., R41832, PAKISTAN-US RELATIONS 22 (2012), available at

http://fpc.state.gov/documents/organization/193708.pdf.

651

Id. ("major strikes closely followed … the Administration's July 2011 announcement on partial

suspension of US military aid to Islamabad;" and "a series of drone strikes came immediately after the

May 2012 NATO summit where President Obama refused to meet with his Pakistani counterpart.").

652

Special Rapporteur, Study on Targeted Killings, supra note 598, at ¶ 33.

118

The nature and effect of the US targeted killing policy may also contravene in some

instances other sections of the International Covenant on Civil and Political Rights

(ICCPR),

653 an international human rights treaty ratified by the US. Sections of the

ICCPR potentially violated by US drone practice include Article 7 (prohibition on cruel,

inhumane, and degrading treatment or punishment), Article 9.1 (right to liberty and

security), Article 17 (right to freedom from arbitrary or unlawful interference with

privacy, family, and home), Article 21 (right to peaceful assembly), and Article 22 (right

to freedom of association).

654 Thus, for example, Articles 21 and 22 might be violated

where drone strike practices cause individuals to fear assembling in groups—as

described by many interviewees—out of concern that they might be assumed to be

engaged in suspicious activity that might result in a signature strike.

US D

OMESTIC LAW

US drone strikes must also comply with US domestic law. Under Article II of the US

Constitution, the President wields significant authority over questions involving

national security and the use of force.

655 The Constitution, though, also entrusts key

responsibilities, including the authority to declare war, to Congress.

656 When acting

pursuant to Congressional authorization in an area delegated to him under the

Constitution, the President has relatively expansive authority to act.

657

The principal domestic legislative basis offered to justify drone strikes is the

Authorization to Use Military Force (AUMF), a joint resolution of both houses of

Congress passed exactly one week after 9/11. The AUMF permits the President to use

"all necessary and appropriate force against those nations, organizations, or persons he

653

International Covenant on Civil and Political Rights, opened for signature Dec. 16, 1966, 999

U.N.T.S. 171 (entered into force Mar. 23, 1976).

654

See generally id.

655

US Const. art. II, § 2, cl. 1 ("The President shall be Commander in Chief of the Army and Navy of the

United States…");

see Youngstown Sheet & Tube Co. v. Sawyer, 343 US 579, 645 (1952) (Jackson, J.,

concurring) ("I should indulge the widest latitude of interpretation to sustain [the President's] exclusive

function to command the instruments of national force, at least when turned against the outside world for

the security of our society. . . His command power is not such an absolute as might be implied from that

office in a militaristic system but is subject to limitations consistent with a constitutional Republic whose

law and policy-branch is a representative Congress.").

656

See, e.g., US Const. art. I, § 8, cl. 1, 11 ("The Congress shall have the Power To. . . . declare War.").

657

Youngstown Sheet, 343 U.S at 635 ("When the President acts pursuant to an express or implied

authorization of Congress, his authority is at its maximum.").

119

determines planned, authorized, committed, or aided the terrorist attacks that occurred

on September 11, 2001, or harbored such organizations or persons."

658 While

subsequent legal and judicial developments expanded the government's

detention

authority beyond the parameters of the AUMF,

659 the AUMF continues to provide the

legal basis for the

use of force against Al Qaeda. The 2012 National Defense

Authorization Act (NDAA), for example, while affirming the President's power to detain

forces "associated" with Al Qaeda and Taliban and "engaged in hostilities against the

United States or its coalition partners,"

660 notes that "nothing in this section is intended

to limit or expand the authority of the President or the scope of the Authorization for

Use of Military Force."

661 Congress, which has been more engaged recently in oversight

of the drone program,

662 has yet to expand or limit the authorization for the executive to

use force under the AUMF at this writing.

US officials have cited the AUMF to support their position that the country is at 'war' not

only with Al Qaeda and the Taliban, but also with all alleged affiliated groups, wherever

they may operate, and at any point when they emerge.

663 For example, Jeh Johnson,

General Counsel of the Department of Defense, has stated that the US government

considers the AUMF to authorize force against "associated forces."

664 An associated

force, according to Johnson, is "(1) an organized, armed group that has entered the fight

alongside Al Qaeda, and (2) is a co-belligerent with Al Qaeda in hostilities against the

658

Authorization for Use of Military Force, Pub. L. No. 107-40, 115 Stat. 224 (2001).

659

See, e.g., Al-Bihani v. Obama, 590 F.3d 866, 872 (D.C. Cir. 2010) (holding that the AUMF grants the

President authority to detain individuals who are "part of forces associated with Al Qaeda or the

Taliban."); Military Commissions Act of 2006, Pub. L. No. 109-366, 120 Stat. 2600 (2006) (defining an

unlawful enemy combatant for the purposes of jurisdiction as a "a person who has engaged in hostilities

or who has purposefully and materially supported hostilities against the United States or its cobelligerents

who is not a lawful enemy combatant (including a person who is part of the Taliban, al Qaeda

or associated forces)").

Al-Bihani and the Military Commissions Act do not consider targeted killings.

660

National Defense Authorization Act Fiscal Year 2012, H.R. 1540, 112th Cong. § 1021(b)(2) (2012).

Note, though, that the Constitutionality of this provision has been challenged.

See, e.g., Hedges v. Obama,

No. 12 Civ. 331(KBF), 2012 WL 3999839 (S.D.N.Y. 2012) (ruling that § 1021(b)(2) is unconstitutional and

enjoining its enforcement). At the time of this writing, the 2nd Circuit judge had issued a stay on the

decision pending appeal.

Hedges v. Obama, No. 12-3176, slip op. at 1 (2d Cir. Sept. 17, 2012).

661

Id. at § 1021(d).

662

Ken Dilanian, Congress Keeps Closer Watch on CIA Drone Strikes, L.A. TIMES (June 25, 2012),

http://www.latimes.com/news/nationworld/world/middleeast/la-na-drone-oversight-

20120625,0,7967691,full.story.

663

See, e.g., Jeh C. Johnson, General Counsel, Department of Defense, National Security Law, Lawyers

and Lawyering in the Obama administration, Address at Yale Law School (Feb. 22, 2012),

available at

http://www.cfr.org/national-security-and-defense/jeh-johnsons-speech-national-security-law-lawyerslawyering-

obama-administration/p27448.

664

Id.

120

United States or its coalition partners."

665 The plain language of the AUMF, though,

would appear only to authorize the use of force against those tied to the attacks of

September 11, 2001, and not

any "associated forces" who may subsequently allegedly

join with Al Qaeda.

666 While the AUMF would thus cover actions against Al Qaeda and

the Afghan Taliban, strikes against groups not involved with the 9/11 attacks, including,

for example, the Haqqani Network and TTP, would not be covered under the currently

existing language.

The express legislative authorization in the AUMF, read in conjunction with the wartime

powers of the executive under Article II, endow the President with expansive authority

to act on use of force questions in the post-9/11 context.

667 In addition, the President has

the authority to issue findings to authorize CIA action beyond the parameters of

Congressional authorization as long as such action does not otherwise violate domestic

law.

668 Some argue that this allows the President to authorize the CIA to take preemptive

lethal action in self-defense against terrorists in response to an imminent

threat, without first obtaining Congressional approval.

669 While all US presidents have

embraced an executive order issued by President Gerald Ford in 1976

670 prohibiting

political assassination,

671 at least two presidents have reportedly relied on classified legal

memoranda to conclude that "executive orders banning assassination do not prevent the

president from lawfully singling out a terrorist for death by covert action."

672

665

Id.

666

See, e.g., Jonathan Masters, Backgrounder: Targeted Killings, COUNCIL ON FOREIGN RELATIONS (Apr.

30, 2012), http://www.cfr.org/counterterrorism/targeted-killings/p9627 (quoting John Bellinger, former

legal adviser for the US Department of State under Secretary of State Condoleezza Rice from 2005 to

2009 and current Adjunct Senior Fellow at the Council on Foreign Relations, who argues that the AUMF

is "still tied to the use of force against people who planned, committed, and or [sic] aided those involved

in 9/11.").

667

Youngstown Sheet, 343 US at 591.

668

50 USC. § 413b(a) (2006).

669

W. Hays Parks, Memorandum of Law: Executive Order 12333 and Assassination, 27 ARMY LAWYER 4,

7-8 (1989).

670

Exec. Order No. 11,905, 41 Fed. Reg. 7703 (Feb. 18, 1976).

671

See, e.g., Exec. Order No. 12,036, 43 Fed. Reg. 3674 (Jan. 24, 1978) (closing the loopholes on the US

assassination ban and declaring that "no employee of the United States Government shall engage in, or

conspire to engage in, assassination"); Exec. Order No. 12,333, 3 C.F.R. 200 (1981).

672

Barton Gellman, CIA Weights 'Targeted Killing' Missions, WASH. POST (Oct. 28, 2001),

http://www.washingtonpost.com/ac2/wp-dyn?pagename=article&node=&contentId=A63203-

2001Oct27&notFound=true;

see also Jeremy Scahill, The Democrats' Selective Amnesia on

Assassination: Clinton Did it and Obama Does it Too

, HUFFINGTON POST (July 15, 2009),

http://www.huffingtonpost.com/jeremy-scahill/the-democrats-selective-a_b_233708.html;

US Policy on

121

To the extent that strikes may occur pursuant to executive findings authorizing CIA

action beyond the parameters of Congressional authorization, the legal framework

guiding CIA engagement must be examined. Many have questioned what rules govern

the CIA,

673 with some even suggesting that the express purpose of the CIA is to

safeguard vital national interests by means of covert action that may go beyond the

parameters of the law.

674 The CIA's involvement in drone strikes in Pakistan does not

absolve the US from its responsibility to adhere to binding domestic law. Although the

CIA is governed by a different section of the US Code (Title 50) than that which

regulates the armed forces (Title 10), the CIA "may not authorize any action that would

violate the Constitution or any statute of the United States."

675 Director of National

Intelligence James Clapper explained in a January 2012 Senate Intelligence Committee

hearing that the entirety of Harold Koh's March 2010 speech at the American Society of

International Law's annual conference, which laid out the legal requirements to which

the US is bound and the administration's legal justification for targeted killings, applied

equally to intelligence agencies.

676

Executive orders to the CIA authorizing covert action (such as drone strikes), though,

are not public, and thus their terms cannot be examined. Should they not provide a legal

basis for actions of this sort or should the US invocation of self-defense be invalid in

particular instances, individual strikes could constitute acts of illegal extrajudicial

assassination. Assassination has long been condemned in the US. Thomas Jefferson

wrote in a letter to James Madison in 1789 that "assassination, poison, [and perjury]"

were all "legitimate purposes in the dark ages…but exploded and held in just horror in

the 18

th century."677 As recently as 2001, the US Ambassador to Israel Martin Indyk

Assassinations

, CNN (Nov. 4, 2002), http://articles.cnn.com/2002-11-

04/justice/us.assassination.policy_1_assassination-prohibition-cia-lawyers?_s=PM:LAW/.

673

See, e.g., Michael McAndrew, Wrangling in the Shadows: The Use of United States Special Forces in

Covert Military Operations in the War on Terror

, 29 B.C. INT'L & COMP. L. REV. 153, 161 (2006).

674

Kathryn Stone, "All Necessary Means" Employing CIA Operatives in a Warfighting Role Alongside

Special Operations Forces

(US Army War College Strategy Research Project #0704-0188, Apr. 7, 2003),

available at

http://www.fas.org/irp/eprint/stone.pdf ("Whereas US military operations are more easily

proven to be in compliance with both national and international law because they occur in the public

domain, this is not the case with CIA covert operations . . . . there are overriding national interests (vital

interests) that must be protected outside the framework of international law.").

675

50 USC. § 413b(a)(5) (2006).

676

Senate Select Intelligence Committee Holds Hearing on Worldwide Threats, 112th Cong. (2012)

(statement of James Clapper, Director of National Intelligence).

677

Letter from Thomas Jefferson to James Madison (Aug. 28, 1789), in 15 THE PAPERS OF THOMAS

J

EFFERSON 367 (Julian P. Boyd ed., 1958); see Philip Alston, The CIA and Targeted Killing Beyond

122

declared that "the United States government is very clearly on record as against targeted

assassinations… they are extrajudicial killings, and we do not support that."

678 Strikes of

this sort occurring outside of authorized armed conflict would be subject to US domestic

law.

679 If US citizens are targeted, constitutional protections and due process

requirements also apply.

680

A

CCOUNTABILITY AND TRANSPARENCY

International law requires states to ensure basic transparency and accountability for

wrongs. States must investigate war crimes allegations, and prosecute where

appropriate.

681 The obligation to be transparent is particularly relevant when there are

civilian victims; indeed, some have argued that parties to an armed conflict are

obligated to record civilian casualties.

682 IHRL further "places a particular emphasis on

the obligation of states to investigate, prosecute and punish any alleged violation of the

norms banning extrajudicial executions."

683 A proper investigation requires

Borders

(New York Univ. Law Sch. Pub. Law & Legal Theory Research Paper Series, Working Paper No.

11-64, Sept. 16, 2011),

available at http://ssrn.com/abstract=1928963.

678

Jane Mayer, The Predator War, NEW YORKER (Oct. 26, 2009),

http://www.newyorker.com/reporting/2009/10/26/091026fa_fact_mayer.

679

Special Rapporteur, Study on Targeted Killings, supra note 598, at ¶ 71.

680

For a discussion of the additional constitutional legal considerations involved in the targeting of US

citizens, see Complaint at ¶ 41-43,

Al-Aulaqi v. Panetta, No. 12-cv-01192-RMC (filed on 07/18/2012), as

well as Memorandum in Support of Plaintiff's Motion for a Preliminary Injunction at 8-23, Al-Aulaqi v.

Obama, 727 F.Supp.2d 1 (D.D.C. 2010). In an interview with Jessica Yellin of

CNN on September 5, 2012,

President Obama recognized, in response to a question about the standards that apply to drone strikes

when 'the target is an American'?', that "[as an] American citizen, they are subject to the protections of the

Constitution and due process."

Obama Reflects on Drone Warfare (CNN television broadcast Sept. 5,

2012),

available at http://security.blogs.cnn.com/2012/09/05/obama-reflects-on-drone-warfare/.

681

HENCKAERTS & DOSWALD-BECK, supra note 626, at 607 (explaining Rule 158).

682

Susan Breau & Rachel Joyce, Discussion Paper: The Legal Obligation to Record Civilian Causalities of

Armed Conflict

2 (Oxford Research Group, June 2011), available at

http://www.oxfordresearchgroup.org.uk/sites/default/files/1st%20legal%20report%20formatted%20FI

NAL.pdf

; see also Susan Breau, Marie Aronsson, & Rachel Joyce, Discussion Paper 2: Drone Attacks,

International Law, and the Recording of Civilian Causalities of Armed Conflict 2

(Oxford Research

Group, June 2011),

available at

http://www.oxfordresearchgroup.org.uk/sites/default/files/ORG%20Drone%20Attacks%20and%20Inter

national%20Law%20Report.pdf

.

683

Alston, supra note 677, at 22; see also Special Rapporteur, Study on Targeted Killings, supra note

598, at ¶ 15 (citing to the Israel High Court of Justice, The Public Committee Against Torture et al. v. The

Government of Israel, et al., HCJ 769/02, Judgment of 14 Dec. 2006 (PCATI) for the holding that "after

each targeted killing, there must be a retroactive and independent investigation of the 'identification of

the target and the circumstances of the attack'").

123

transparency: as the European Court of Human Rights explained, "[t]here must be a

sufficient element of public scrutiny of the investigation or its results to secure

accountability in practice as well as in theory, maintain public confidence in the

authorities' adherence to the rule of law and prevent any appearance of collusion in or

tolerance of unlawful acts."

684

By failing to account adequately for their activities in any public forum and even

refusing to acknowledge publicly the existence of targeted killing operations for years or

to explain sufficiently their legal basis, the US has failed to meet its international legal

obligations to ensure transparency

and accountability. In

addition, while Article 51 of

the U.N. Charter, which the

US has implicitly invoked to

justify strikes, requires that

"measures taken by Members

in the exercise of [their] right

to self-defense . . . be immediately

reported to the Security

Council,"

685 the US has yet to

make such a report. Recent public disclosures and the occasional willingness by public

officials to discuss the program publicly is welcome progress, but more is still required.

Partial and selective leaks to journalists and vague invocations of legal doctrine in talks

in public fora are poor substitutes for proper transparency and oversight. Officials boast

of the rigor of internal oversight mechanisms and decision-making processes,

686 but, as

former U.N. Special Rapporteur on extrajudicial, summary or arbitrary executions

Professor Philip Alston concluded:

Assertions by Obama administration officials, as well as by scholars, that these

operations comply with international standards are undermined by the total

absence of any forms of credible transparency or verifiable accountability. The

CIA's internal control mechanisms, including the Inspector-General, have had no

discernible impact; executive control mechanisms have either not been activated

at all or have ignored the issue; congressional oversight has given a 'free pass' to

684

Anguelova v. Bulgaria, 38 Euro. Ct. H.R. 31, ¶ 140 (2002) (cited in Alston, supra note 677, at 23).

685

UN Charter art. 51.

686

See, e.g., Brennan, supra note 600 ("[T]he United States government has never been so open

regarding its counterterrorism policies and legal justification."); Preston,

supra note 600.

Partial and selective leaks to

journalists and vague invocations of

legal doctrine in talks in public fora

are poor substitutes for proper

transparency and oversight.

124

the CIA; judicial review has been effectively precluded; and external oversight has

been reduced to media coverage which is all too often dependent on information

leaked by the CIA itself.

687

687

Alston, supra note 677, at 118.

125

C

HAPTER 5: STRATEGIC CONSIDERATIONS

The central justification for US drone strikes is that they are necessary to make the US

safer by disrupting militant activity. Proponents argue that they are an effective,

accurate, and precise tool to that end. However, serious questions have been raised

about the accuracy and efficacy of strikes, and the publicly available evidence that they

have made the US safer overall is ambiguous at best. Considerable costs also have been

documented. The under-accounted-for harm to civilians–injuries, killings, and broad

impacts on daily life, education, and mental health–was analyzed in detail above, and

must be factored as a severe cost of the US program.

688 In addition, it is clear that US

strikes in Pakistan foster anti-American sentiment and undermine US credibility not

only in Pakistan but throughout the region. There is strong evidence to suggest that US

drone strikes have facilitated recruitment to violent non-state armed groups, and

motivate attacks against both US military and civilian targets. Further, current US

targeted killing and drone strike practices may set dangerous global legal precedents,

erode the rule of law, and facilitate recourse to lethal force.

A significant rethinking of current policies, in light of all available evidence, the

concerns of various stakeholders, and short and long-term costs and benefits, is long

overdue.

D

RONE STRIKE ACCURACY AND EFFECTIVENESS IN HAMPERING ARMED VIOLENCE

The US government and advocates for US targeted killing policies put much emphasis

on the precision of drone strikes, and their effectiveness in combating terrorism and

making the US safer by hampering the operational capacity of militants. Indeed, as

Peter Bergen and Jennifer Rowland have argued, "CIA drone attacks in Pakistan have

undoubtedly hindered some of the Taliban's operations, killed hundreds of their lowlevel

fighters, and a number of their top commanders."

689 The "terrorizing presence" of

drones overhead has also reportedly disrupted the ability of armed non-state actors to

688

See supra Chapter 3: Living Under Drones.

689

Peter Bergen & Jennifer Rowland, Drones Decimating Taliban in Pakistan, CNN (July 4, 2012),

http://edition.cnn.com/2012/07/03/opinion/bergen-drones-taliban-pakistan/index.html.

126

gather and organize within Waziristan.

690 Documents selectively released by the US

after the raid on bin Laden's Abbottabad compound indicate that bin Laden himself

expressed concern about, and modified operations in response to, drone strikes.

691

However, claims about accuracy and efficacy deserve serious scrutiny.

First, concerns have been raised about the technical accuracy of strikes.

692 More

significantly, however, is the fact that the accuracy of a drone strike fundamentally

hinges on the accuracy of the intelligence on which the targeting is premised. That

intelligence has often been questioned. An anonymous US official cited by Tom Junod in

his August 2012

Esquire article admitted that "[y]ou get information from intelligence

channels and you don't know how reliable it is or who the source was. The intelligence

services have criteria, but most of the time the people making the decision have no idea

what those criteria are."

693

Targeting decisions appear to be based on information obtained from assets and

informants on the ground, signals intelligence, and aerial drone surveillance.

694 As Jane

Mayer notes, "the precise video footage makes it much easier to identify targets. But the

strikes are only as accurate as the intelligence that goes into them."

695 Bob Woodward

690

David Rohde, The Drone War, REUTERS MAG. (Jan. 26, 2012),

http://www.reuters.com/article/2012/01/26/us-davos-reutersmagazine-dronewaridUSTRE80P19R20120126;

see also supra

Chapter 3: Living Under Drones.

691

See, e.g., Pam Benson, Bin Laden Documents: Fear of Drones, CNN (May 3, 2012),

http://security.blogs.cnn.com/2012/05/03/bin-laden-documents-fear-of-drones/.

692

See infra Chapter 1: Background and Context (noting questions about the technical precision of

drones, including the problem of latency). In particular,

see discussion of lawsuit concerning software

summarized in note 31.

693

Tom Junod, The Lethal Presidency of Barack Obama, ESQUIRE (Aug. 2012), available at

http://www.esquire.com/print-this/obama-lethal-presidency-0812?page=all.

694

See Declan Walsh, Mysterious 'Chip' is CIA's Latest Weapon Against al-Qaida Targets Hiding in

Pakistan's Tribal Belt

, GUARDIAN (May 31, 2009), http://www.guardian.co.uk/world/2009/may/31/ciadrones-

tribesmen-taliban-pakistan;

see also Dashiell Bennett, Pakistani Death Squads Target

Informants Who Help Drone Attacks

, ATLANTIC WIRE (Dec. 29, 2011), available at

http://news.yahoo.com/pakistani-death-squads-target-informants-help-drone-attacks-130952142.html

(discussing how a militant group called the Khorasan Mujahedin is kidnapping, torturing, and killing

those in Pakistan's tribal areas it suspects of helping the US drones).

695

Jane Mayer, The Predator War, NEW YORKER (Oct. 26, 2009), available at

http://www.newyorker.com/reporting/2009/10/26/091026fa_fact_mayer;

see also UN Special

Rapporteur on extrajudicial, summary, or arbitrary executions,

Study on Targeted Killing, ¶ 81, Human

Rights Council, UN Doc A/HRC/14/24/Add.6 (May 28, 2010) (by Philip Alston),

available at

http://unispal.un.org/pdfs/AHRC1424Add6.pdf ("The precision, accuracy and legality of a drone strike

depend on the human intelligence upon which the targeting decision is based.").

127

explains in

Obama's Wars, "[w]ithout the local informants…there would not be good

signals intelligence so that the drones know where to target."

696

Public information about the US experience in Afghanistan and Iraq, as well as in the

context of rendition and the Guantanamo detentions, creates cause for concern about

the reliability of the intelligence that informs lethal targeting decisions. In April 2011,

for example, US forces used a predator drone to fire upon and kill two American soldiers

in Afghanistan who had apparently been mistaken for Taliban fighters.

697 In September

2010, US special forces bombed the convoy of Zabet Amanullah, a candidate in

parliamentary elections, killing him along with nine fellow election workers; US forces

reportedly mistakenly believed Amanullah to be a member of the Taliban.

698 In both

Afghanistan and Iraq, there have been documented cases of opportunistic informants

providing false tips to settle scores, advance sectarian or political agendas, or to obtain

financial reward.

699 For example, in Guantanamo, a reported 86 percent of those

imprisoned were turned over to coalition forces in response to a bounty offered by the

US.

700 Pakistani and Afghan villagers reported the bounty amount was "[e]nough money

to take care of your family, your village, your tribe for the rest of your life."

701 For several

years, the US government regularly referred to Guantanamo detainees as "the worst of

the worst."

702 Classified as "enemy combatants," prisoners remained in US custody for

significant periods of time, often years, and often without being charged. Yet of the 779

696

BOB WOODWARD, OBAMA'S WARS 106-07 (2010).

697

Jim Miklaszewski, 2 US servicemen mistakenly killed by drone attack in Afghanistan, NBC NEWS

(April 11, 2011), http://www.msnbc.msn.com/id/42537620/ns/world_newssouth_

and_central_asia/t/us-servicemen-mistakenly-killed-drone-attack-afghanistan/.

698

Kate Clark, AFGHANISTAN ANALYSTS NETWORK, THE TAKHAR ATTACK: TARGETED KILLINGS AND THE

P

ARALLEL WORLDS OF US INTELLIGENCE AND AFGHANISTAN (2011), available at http://aanafghanistan.

com/uploads/20110511KClark_Takhar-attack_final.pdf. US authorities contended that

Muhammad Amin and Zabet Amanullah were the same person.

Id. at 2. According to Clark, this assertion

was demonstrated to be false when Amin was interviewed in Pakistan after the September 2, 2010 strike.

Id.

699

See, e.g., Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, Mission to

Afghanistan, ¶¶ 14-18, Human Rights Council, UN Doc. A/HRC/11/2/Add.4 (May 6, 2009) (by Philip

Alston),

available at

http://www.extrajudicialexecutions.org/application/media/Afghanistan%202009%20report.pdf;

Anthony Shadid,

For an Iraqi Family, 'No Other Choice', WASH. POST (Aug. 1, 2003),

http://www.pulitzer.org/archives/6812.

700

Guantánamo by the Numbers [Infographic], AMERICAN CIVIL LIBERTIES UNION (May 4, 2012),

http://www.aclu.org/national-security/guantanamo-numbers.

701

Id.

702

Jeff Stein, Rumsfeld Complained of 'Low Level' GTMO Prisoners, Memo Reveals, WASH. POST (Mar. 3,

2011), http://voices.washingtonpost.com/spy-talk/2011/03/rumsfeld_complained_of_low_lev.html.

128

detainees held at Guantanamo Bay since 2002, 603 have now been released.

703

According to the US government itself, 92% of prisoners in the facility were never Al

Qaeda fighters.

704

What does this mean in the targeted killing context? Human rights lawyer Clive Stafford

Smith of Reprieve articulates the implications:

Just as with Guantanamo Bay, the CIA is paying bounties to those who will

identify "terrorists." Five thousand dollars is an enormous sum for a Waziri

informant, translating to perhaps £250,000 in London terms. The informant has

a calculation to make: is it safer to place a GPS tag on the car of a truly dangerous

terrorist, or to call down death on a Nobody (with the beginnings of a beard),

reporting that he is a militant? Too many "militants" are just young men with

stubble.

705

Tom Junod has similarly argued:

The US invaded Iraq on the pretext of evidence that was fallacious, if not

dishonest. The US detained the "worst of the worst" in Guantánamo for years

before releasing six hundred of them, uncharged, which amounts to the

admission of a terrible mistake. The Lethal Presidency is making decisions to kill

based on intelligence from the same sources. These decisions are final, and no

one will ever be let go. Six hundred men. What if they had never been detained?

What if, under the precepts of the Lethal Presidency, they had simply been

killed?

706

The trend of the US claiming to have targeted or killed the same high-value target

multiple times also serves to undermine assertions about the accuracy of US

intelligence. For example, although proclaimed dead in January 2009

707 and again in

September 2009,

708 Ilyas Kashmiri, the alleged head of Al Qaeda's paramilitary

operations in Pakistan, gave an interview to a Pakistani journalist in October that same

703

The Guantanamo Docket: A History of the Detainee Population, N.Y. TIMES (July 11, 2012),

http://projects.nytimes.com/guantanamo/.

704

Guantánamo by the Numbers, supra note 700.

705

Clive Stafford Smith, We are Sleepwalking into the Drone Age, Unaware of the Consequences,

G

UARDIAN (June 2, 2012), http://www.guardian.co.uk/commentisfree/2012/jun/02/drone-age-obamapakistan.

706

Junod, supra note 693.

707

See, e.g., Hasnain Kazim, Relatives of Pakistani Drone Victims to Sue CIA, DER SPIEGEL (Jan. 21,

2011), http://www.spiegel.de/international/world/striking-back-at-the-us-relatives-of-pakistani-dronevictims-

to-sue-cia-a-740638.html.

708

See, e.g., Alex Rodriguez & Zulfiqar Ali, Pakistani Al Qaeda Leader Killed in US Strike, L.A. TIMES

(Sept. 18, 2009), http://articles.latimes.com/2009/sep/18/world/fg-pakistan-drone18.

129

year.

709 Our research team spoke with a survivor of the September 2009 strike in which

Kashmiri was initially reported to have died. That survivor, Sadaullah Wazir, who was

15 years old or younger at the time of the strike, lost both his legs and an eye in the

strike.

710 Kashmiri was again proclaimed dead in June 2011,711 but even this account has

been contested.

712 Similarly, Abu Yahya Al-Libi, declared to be Al Qaeda's #2 or #3, was

thought killed in a December 2009 drone strike,

713 only to be reportedly killed more

than three years later in June 2012.

714 Michael Hastings of Rolling Stone has also traced

the multiple US attempts to strike the TTP's former leader Baitullah Mehsud:

A year earlier, a drone strike killed Baitullah Mehsud, the head of the Pakistani

Taliban, while he was visiting his father-in-law; his wife was vaporized along with

him. But the US had already tried four times to assassinate Mehsud with drones,

killing dozens of civilians in the failed attempts. One of the missed strikes,

according to a human rights group, killed 35 people, including nine civilians, with

reports that flying shrapnel killed an eight-year-old boy while he was sleeping.

Another blown strike, in June 2009, took out 45 civilians, according to credible

press reports.

715

Second, the vast majority of the 'militants' targeted have been low-level insurgents,

killed in circumstances where there is little or no public evidence that they had the

means or access to pose a serious threat to the US. In 2011, a White House evaluative

709

Syed Saleem Shahzad, Al-Qaeda's Guerrilla Chief Lays Out Strategy, ASIA TIMES (Oct. 15, 2009),

http://www.atimes.com/atimes/South_Asia/KJ15Df03.html.

710

Interview with Sadaullah Wazir, in Islamabad, Pakistan (Feb. 29, 2012). Sadaullah was uncertain of his

exact age; he told our research team that he believed his current age to be between 15 and 17.

Id.

711

Myra MacDonald, Ilyas Kashmiri Reported Killed in Drone Strike in Pakistan, REUTERS (June 4, 2011),

http://blogs.reuters.com/pakistan/2011/06/04/ilyas-kashmiri-reported-killed-in-drone-strike-inpakistan/.

712

Rezaul H. Laskar, Kashmiri Still Alive: Report, HINDUSTAN TIMES (July 16, 2011),

http://www.hindustantimes.com/world-news/Pakistan/Kashmiri-still-alive-Report/Article1-

721767.aspx.

713

Sources: Drone Killed Top Qaeda Operative, CBS NEWS (Dec. 12, 2009),

http://www.cbsnews.com/stories/2009/12/11/world/main5967266.shtml (reporting that al-Libi,

characterized as "al Qaeda's number 3" was mistakenly believed to have been killed in a strike that killed

Saleh al-Somali, "one of a half dozen top Qaeda operatives").

714

White House: Al Qaeda No. 2 Leader is dead, CNN (June 6, 2012),

http://www.cnn.com/2012/06/05/world/asia/pakistan-drone-libi/index.html?hpt=hp_t1.

715

Michael Hastings, The Rise of the Killer Drones: How America Goes to War in Secret, ROLLING STONE

(Apr. 26, 2012), http://www.rollingstone.com/politics/news/the-rise-of-the-killer-drones-how-americagoes-

to-war-in-secret-20120416?print=true. According to

TBIJ, media reports placed the range of civilian

deaths in the June 23, 2009 strike between 18 and 45.

Obama 2009 Pakistan Strikes, THE BUREAU OF

I

NVESTIGATIVE JOURNALISM (Aug. 10, 2011), http://www.thebureauinvestigates.com/2011/08/10/obama-

2009-strikes/.

130

report on drone strikes, in fact, found that the CIA was "primarily killing low-level

militants in its drone strikes."

716 Journalist Adam Entous reached a similar conclusion

in a May 2010

Reuters piece: based on conversations with unnamed US officials, he

noted that only 14 top-tier leaders of Al Qaeda, the Taliban, or other militant groups and

two dozen high-to-mid-level leaders had been killed, with the remaining "90 percent by

some measure" of those militant deaths consisting of "lower-level fighters."

717 In

September 2012, Peter Bergen and Megan Braun, reporting New American Foundation

data, stated that since 2004, 49 "militant leaders" had been killed in strikes (accounting

for 2% of all drone killings); the rest were largely "low-level combatants."

718

Strikes that kill low-level fighters are of dubious value to US security interests. This is

particularly true in light of revelations that the US counts all killed adult males as

"combatants," absent exonerating evidence.

719 In other words, claims that drones have

killed hundreds of low-level fighters may well mask the deaths of civilians.

Third, analysts have raised questions about the effectiveness of "decapitation" strategies

(the targeted killing or capture of an organization's high-level leaders and mobilizers in

order to incapacitate the entire group). As RAND analyst Bruce Hoffman observed in

2004, Al Qaeda is a "nimble, flexible and adaptive entity."

720 The frequency with which

the US claims to have killed the number two of the various militant groups operating in

North Waziristan attests to how readily leaders have been replaced. Indeed, former

director of National Intelligence Dennis Blair noted in explaining the ineffectiveness of

drones, "[Al] Qaeda officials who are killed by drones will be replaced. The group's

716

Peter Bergen & Jennifer Rowland, CIA Drone War in Pakistan in Sharp Decline, CNN (Mar. 28, 2012),

http://www.cnn.com/2012/03/27/opinion/bergen-drone-decline/index.html.

717

Adam Entous, Drones Kill Low-Level Militants, Few Civilians: US, REUTERS (May 3, 2010),

http://www.reuters.com/article/2010/05/03/us-pakistan-usa-drones-idUSTRE6424WI20100503.

718

Peter Bergen & Megan Braun, Drone is Obama's Weapon of Choice, CNN (Sept. 6, 2012),

http://www.cnn.com/2012/09/05/opinion/bergen-obama-drone/index.html.

719

See Jo Becker & Scott Shane, Secret 'Kill List' Proves a Test of Obama's Principles and Will, N.Y. TIMES

(May 29, 2012), http://www.nytimes.com/2012/05/29/world/obamas-leadership-in-war-on-alqaeda.

html?pagewanted=all.

720

Bruce Hoffman, The Changing Face of Al Qaeda and the Global War on Terrorism, 27 STUD. IN

C

ONFLICT & TERRORISM 549, 551 (2004); see also Paul Pillar, Still Fighting Bush's GWOT,

C

ONSORTIUMNEWS.COM (June 23, 2012), http://consortiumnews.com/2012/06/23/still-fighting-bushsgwot/.

131

structure will survive and it will still be able to inspire, finance and train individuals and

teams to kill Americans."

721

Fourth, while the drone program may have inhibited militant organizing in certain

areas, it may have also effected a shift in the location of militant organizing activity.

Douglas Lute, Obama's former Special Assistant and Senior Coordinator for Afghanistan

and Pakistan, stated, "I don't think anybody believes that we'll have much more than a

disruption effect on Al Qaeda . . . and its associates."

722 With drone strikes focused on

Waziristan, some Al Qaeda and Taliban leaders have moved to other parts of Pakistan,

where they have reportedly continued to operate. Osama bin Laden was found hiding in

Abbottabad; 9/11 architect Khaled Sheikh Muhammad was captured in Rawalpindi;

723

suspected militant Abu Zubaydah was apprehended in Faisalabad;

724 and Mullah Omar

has been widely rumored to be in Karachi.

725

US D

RONE STRIKE POLICIES FOMENT ANTI-AMERICAN SENTIMENT AND MAY AID

R

ECRUITMENT TO ARMED NON-STATE ACTORS

Admiral Mike Mullen has observed,

Each time an errant bomb or a bomb accurately aimed but against the wrong

target kills or hurts civilians, we risk setting out strategy back months, if not

years. Despite the fact that the Taliban kill and maim far more than we do,

civilian casualty incidents such as those we've recently seen in Afghanistan will

721

Dennis C. Blair, Drones Alone Are Not the Answer, N.Y. TIMES (Aug. 14, 2011),

http://www.nytimes.com/2011/08/15/opinion/drones-alone-are-not-the-answer.html.

722

Woodward, supra note 696, at 284.

723

See, e.g., Stephen Kurczy, Top 5 Al Qaeda-linked Militants Pakistan Has Captured, CHRISTIAN SCIENCE

M

ONITOR (MAY 3, 2011), http://www.csmonitor.com/World/Asia-South-Central/2011/0503/Top-5-Al-

Qaeda-linked-militants-Pakistan-has-captured/Khalid-Sheikh-Mohammad; Elaine Shannon & Michael

Weisskopf,

Khalid Sheikh Mohammed Names Names, TIME (Mar. 24, 2003),

http://www.time.com/time/world/article/0,8599,436061,00.html.

724

White House Hails bin Laden Aide's Capture, CNN (Apr.02, 2002), http://articles.cnn.com/2002-04-

02/world/pakistan.alqaeda_1_key-terrorist-recruiter-qaeda-bin?_s=PM:asiapcf.

725

See, e.g., Taliban Chief Hides in Pakistan, WASH. TIMES (Nov. 20, 2009),

http://www.washingtontimes.com/news/2009/nov/20/taliban-chief-takes-cover-in-pakistan-populace/.

132

hurt us more in the long run than any tactical success we may achieve against the

enemy.

726

It is clear from polling and our research team's interviews that drone strikes breed

resentment and discontent toward

the US, and there is evidence to

suggest that the strikes have aided

militant recruitment and motivated

terrorist activity.

US drone strikes are extremely

unpopular in Pakistan. A 2012 poll

by the Pew Research Center's Global

Attitude project found that only 17%

of Pakistanis supported drone

strikes. And remarkably, among

those who professed to know a lot or

a little about drones, 97% considered

drone strikes bad policy.

727 As

numerous analysts have noted, "[i]f

the price of the drone campaign that

increasingly kills only low-level

Taliban is alienating 180 million

Pakistanis–that is too high a price to

pay."

728

726

Admiral Mike Mullen, Chairman of the Joint Chiefs of Staff, Remarks at the Kansas State University

Landon Lecture Series, Kansas State University (Mar. 3, 2010),

available at

http://www.jcs.mil/speech.aspx?id=1336.

727

Id.

728

Bergen & Braun, supra note 718 (welcoming a reported reduction in US drone strikes in Pakistan since

2010).

More than two dozen US

congressmen penned a letter to

President Obama in June 2012

that described drones as

"faceless ambassadors that

cause civilian deaths, and are

frequently the only direct

contact with Americans that

targeted communities have."

- Bipartisan letter signed by 26 US

Members of Congress to President Obama,

June 12, 2012

133

The Waziris interviewed for this report almost uniformly reported having neutral or in

some instances positive views of the US before the advent of the drone campaign. One

18-year-old, for example, admitted, "[f]rankly speaking, before the drone attacks, I

didn't know anything about a

country called America. I didn't

know where it was or its role in

international affairs."

729 But the

strikes now foster the development

of strongly negative views toward

the US. Another interviewee

explained: "Before the drone

attacks, we didn't know [anything]

about America. Now everybody has

come to understand and know

about America . . . . Almost all

people hate America."

730 Noor

Khan, whose father, Daud Khan, a respected community leader, was killed when a drone

struck the March 17, 2011

jirga over which he presided, remarked that "America on one

hand claims that it wants to bring peace to the world and it wants to bring education.

But look at them, what they are doing?"

731 One man, who has lost relatives in drone

strikes, expressed his deep-seated anger toward the US, declaring that "we won't forget

our blood, for two hundred, two thousand, five thousand years—we will take our

revenge for these drone attacks."

732 A Waziri who lost his younger brother in a strike

stated that there would be revenge: "Blood for blood. . . . All I want to say to them is . . .

why are you killing innocent people like us that have no concern with you?"

733

A teenage victim of a drone strike commented: "America is 15,000 kilometers away from

us; God knows what they want from us. We are not rich . . . . We don't have as much

food as they do. God knows what they want from us."

734 Unable to find any other

explanation for why US strikes have struck innocent people in their community, some

729

Interview with Shahbaz Kabir (anonymized name), in Islamabad, Pakistan (Feb. 26, 2012).

730

Interview with Umar Ashraf (anonymized name), in Islamabad, Pakistan (Mar.9, 2012); see also

Interview with Saad Afridi (anonymized name), in Islamabad, Pakistan (Feb. 26, 2012) ("Before drone

attacks, I didn't know America.").

731

Interview with Khalil Khan, Noor Khan, and Imran Khan, in Islamabad, Pakistan (Feb.26, 2012).

732

Interview with Uzair Rashid (anonymized name), in Islamabad, Pakistan (Feb. 26, 2012).

733

Interview with Mehfooz Shaukat (anonymized name), in Islamabad, Pakistan (Feb. 29, 2012).

734

Interview with Faheem Qureshi, in Islamabad, Pakistan (Feb.29, 2012).

"When people are out there

picking up body parts after a

drone strike, it would be very

easy to convince those people to

fight against America."

- Noor Behram, Pakistani Photojournalist

134

Waziris believe that the US actively seeks to kill them simply for being Muslims, viewing

the drone campaign as a part of a religious crusade against Islam.

735

Recognizing the danger posed by a campaign that breeds such hostility, more than two

dozen US congressmen penned a letter to President Obama in June 2012 that described

drones as "faceless ambassadors that cause civilian deaths, and are frequently the only

direct contact with Americans that targeted communities have."

736

Many of the journalists, NGO and humanitarian workers, medical professionals, and

Pakistani governmental officials with whom we spoke expressed their belief that, on

balance, drone strikes likely increase terrorism. Syed Akhunzada Chittan, for example, a

parliamentarian from North Waziristan, expressed his conviction that "for every

militant killed," many more are born.

737 In another interview, a Pakistani professional

told us that a professional school classmate had joined the Taliban after a drone strike

killed a friend of his.

738 Noor Behram is a Waziri-based journalist who has spent years

photographing and interviewing victims of drone strikes. Having personally witnessed

the immediate aftermath of numerous strikes, he relates: "When people are out there

picking up body parts after a drone strike, it would be very easy to convince those people

to fight against America."

739

Numerous policy analysts, officials, and independent observers have come to similar

conclusions. David Kilcullen, a former advisor to US General David Petraeus, has stated

735

Interview with Waleed Shiraz (anonymized name), in Islamabad, Pakistan (Feb. 26, 2012). Shiraz, a

political science graduate who became disabled due to a drone attack, described what he believes

motivated the US: "It is proven that America is working against Muslims, because every country it has

waged a war against . . . is a Muslim nation."

Id. Fayaz Habib, a Waziri who lost his father in the March

17

th jirga strike, told us: "It just seems that America wants to target the people of Wazirstan . . . not just

the people of Wazirstan . . . but also in Pakistan and Iraq. They just want to target Muslims." Interview

with Khalil Khan, Noor Khan, and Imran Khan, in Islamabad, Pakistan (Feb. 26, 2012);

see also Interview

with Marwan Aleem (anonymized name), in Islamabad, Pakistan (Feb. 26, 2012) ("The

kalima shehada

[the Islamic declaration of belief in the oneness of Allah]. . . is the reason that innocent people are being

victimized. Because we are all Muslims, we are being victimized."); Interview with Sameer Rahman

(anonymized name) and Mahmood Muhammad (anonymized name), in Islamabad, Pakistan (Feb. 29,

2012).

736

Letter from Dennis Kucinich et al. to President of the US Barack Obama (June 12, 2012), available at

http://kucinich.house.gov/uploadedfiles/combat_drones_061212.pdf

; see also Jeremy Herb, Lawmakers

Want Legal Justification for Drone Strikes

, HILL (June 13, 2012), http://thehill.com/blogs/defconhill/

operations/232523-lawmakers-want-legal-justification-for-drone-strikes.

737

Interview with Syed Akhunzada Chittan, Pakistani Parliamentarian, in Islamabad, Pakistan (May 14,

2012).

738

Interview with Zafar Husam (anonymized name), in Pakistan (May 12, 2012).

739

The Rachel Maddow Show (MSNBC television broadcast Jun. 29, 2012).

135

that, "every one of these dead noncombatants represents an alienated family, a new

desire for revenge, and more recruits for a militant movement that has grown

exponentially even as drone strikes have increased."

740 Der Spiegel has also reported

that in Pakistan "militants profit in a gruesome way from the drone missions. After each

attack in which innocent civilians die, they win over some of the relatives as

supporters—with a few even volunteering for suicide attacks."

741 As a May 2012 New

York Times

article succinctly put it, "[d]rones have replaced Guantánamo as the

recruiting tool of choice for militants."

742 Pakistani Ambassador to the US Sherry

Rehman told CNN's Christiane Amanpour in a recent interview that the drone program

"radicalizes foot soldiers, tribes, and entire villages in our region," and that "[w]e

honestly feel that there are better ways now of eliminating Al Qaeda."

743 It is also

important to note that similar counter-productive effects have been noted in Yemen.

744

740

David Kilcullen & Andrew McDonald Exum, Death From Above, Outrage Down Below, N.Y. TIMES

(May 16, 2009), http://www.nytimes.com/2009/05/17/opinion/17exum.html?pagewanted=all.

741

Kazim, supra note 707.

742

Becker & Shane, supra note 719.

743

Huma Imtiaz, Drone Program is Counterproductive for Pakistan's Goals: Rehman, EXPRESS TRIBUNE

(July 10, 2012), http://tribune.com.pk/story/406195/concerns-over-drone-strikes-cannot-be-brushedaside-

sherry-rehman/.

744

Ibrahim Mothana, How Drones Help Al Qaeda, N.Y. TIMES (June 13, 2012),

http://www.nytimes.com/2012/06/14/opinion/how-drones-help-al-qaeda.html ("Drones are causing

more and more Yemenis to hate America and join radical militants; they are not driven by ideology but

rather by a sense of revenge and despair . . . . [R]ather than winning the hearts and minds of Yemeni

civilians, America is alienating them by killing their relatives and friends. Indeed, the drone program is

leading to the Talibanization of vast tribal areas and the radicalization of people who could otherwise be

America's allies in the fight against terrorism in Yemen.");

see also Sudarsan Raghavan, In Yemen, US

Airstrikes Breed Anger, and Sympathy for al-Qaeda

, WASH. POST (May 30, 2012),

http://www.washingtonpost.com/world/middle_east/in-yemen-us-airstrikes-breed-anger-andsympathy-

for-al-qaeda/2012/05/29/gJQAUmKI0U_story.html (noting also that "hundreds of tribesmen

have joined AQAP in the fight against the US-backed Yemeni government" and that strikes are "angering

powerful tribes that could prevent AQAP from gaining strength"); Jeremy Scahill,

Washington's War in

Yemen Backfires

, NATION (Feb. 14, 2012), http://www.thenation.com/article/166265/washingtons-waryemen-

backfires# ("The US bombs and the Yemeni military shelling of Zinjibar have increased support

for Ansar al Sharia, allowing it to fulfill its claim that it is a defender of the people in the face of an

onslaught backed by America."); Michelle Shephard,

Drone Death in Yemen of an American Teenager,

T

ORONTO STAR (Apr. 14, 2012), http://www.thestar.com/news/world/article/1161432--drone-death-inyemen-

of-an-american-teenager (attributing to Yemeni analysis Abdul Ghani al-Iryani the conclusion that

the emergence of Ansar al Sharia resulted from "what they saw as American aggression"). For similar

effects in other contexts,

see generally David Jaeger, Esteban Klor, Sami Miaari & M. Daniele Paserman,

The Struggle for Palestinian Hearts and Minds: Violence and Public Opinion in the Second Intifada

(Nat'l Bureau of Econ. Research, Working Paper No. 13956, 2008),

available at

http://www.nber.org/papers/w13956.pdf, as well as S

ETH G. JONES & MARTIN C. LIBICKI, RAND CORP.,

H

OW TERRORIST GROUPS END: LESSONS FOR COUNTERING AL QA'IDA (2008), available at

http://www.rand.org/pubs/monographs/2008/RAND_MG741-1.pdf, which posits that the "use of

136

While quantitative data is limited, one study, in June 2012 by the Middle East Policy

Council, identified a correlation between drone strikes and terrorist attacks in the years

2004-2009. That study found it "probable that drone strikes provide motivation for

retaliation, and that there is a substantive relationship between the increasing number

of drone strikes and the increasing number of retaliation attacks."

745 A July 2010 study

by the New America Foundation revealed that almost six in ten residents of the

Federally Administered Tribal Areas (FATA) now believe that suicide attacks are often

or sometimes justified against the US military,

746 although a July 2012 journalistic

assessment by Bergen and Rowland suggests that drone strikes may have contributed to

reduced suicide attacks in Pakistan in 2010-2011.

747

Indeed, US drone strikes have been explicitly referred to as a motive for a number of

specific planned or implemented terrorist attacks. For instance, a suicide bomber who

targeted a CIA compound in Khost, Afghanistan identified drones as his motivation,

announcing that "[t]his [suicide] attack will be the first of the revenge operations against

the Americans and their drone teams outside the Pakistani borders."

748 Faisal Shahzad,

who allegedly attempted to detonate a car bomb in Times Square, viewed his planned

attack as retaliation for several US policies, including drone strikes.

749 In addition,

Najibullah Zazi, an Afghan who allegedly plotted to attack New York's subway system

substantial US military power against terrorist groups also runs a significant risk of turning the local

population against the government by killing civilians," and, in evaluating quantitative historical data

from 1968—2006 finds that "[a]gainst most terrorist groups . . . military force is usually too blunt an

instrument."

Id. at xiv.

745

Leila Hudson, Colin S. Owens & Matt Flannes, Drone Warfare: Blowback from the New American

Way of War

, MIDDLE E. POL'Y COUNCIL, 122, 126 (June 15, 2012), available at

http://www.mepc.org/journal/middle-east-policy-archives/drone-warfare-blowback-new-american-waywar;

see also

David A. Jaeger & Zahra Siddique, Are Drone Strikes Effective in Afghanistan and

Pakistan? On the Dynamics of Violence between the United States and the Taliban

2 (Institute for the

Study of Labor, Discussion Paper No. 6262, 2011),

available at http://ftp.iza.org/dp6262.pdf (finding a

strong, but balanced effect between vengeance attacks and deterrent effect, noting "a positive vengeance

effect in the first week following a drone strike [in Pakistan and] a negative deterrent/incapacitation effect

in the second week following a drone strike, when we examine the likelihood of a terrorist attack by the

Taliban.").

746

NEW AMERICA FOUNDATION, SENTIMENT SURVEY QUESTIONS: DRONE STRIKES,

http://pakistansurvey.org/question/drone-strikes (last visited Sept. 9, 2012).

747

Bergen & Rowland, supra note 689 (citing reduced numbers of suicide bombings in 2010 and 2011 and

suggesting that "strikes may have contributed to a relative decrease in violence across Pakistan").

748

Megan Chuchmach, Nick Schifrin, & Luis Martinez, Martyrdom Video from CIA Base Bomber Links

Deadly Attack to Pakistani Taliban

, ABC NEWS (Jan. 9, 2010), http://abcnews.go.com/Blotter/cia-basebomber-

martyrdom-video-taped-deadly-afghanistan/story?id=9521756#.T-Y-G7VfGuk.

749

Chris Dolmetsch, Times Square Bomber Vows Revenge in Al-Arabiya Video, WASH. POST (July 14,

2010), http://www.washingtonpost.com/wp-dyn/content/article/2010/07/14/AR2010071404860.html.

137

was "in part, motivated by drone strikes in [his] ancestral homeland[]."

750 Similarly, a

group responsible for the bombing of a Pakistani police academy in early 2009 cited the

collaboration of Pakistani authorities with the US drone campaign.

751 It is also clear that

some US officials themselves consider that drone strikes may influence the likelihood of

terrorist activity in the US. A June 2012 deposition suggests, at least, that the New York

City Police Department has monitored conversations involving individuals from

"countries of concern"

752 following and about drone strikes,753 to "find those people that

were radicalized towards violence."

754

Those we interviewed in Pakistan emphasized their belief that enmity toward the US

stems largely from particular US rights-violating post-9/11 policies, and could be

reversed if the US changed course. Many expressed hope for reconciliation with the US,

for good relations with the American people, and aspirations for a peaceful future. A

victim of the March 17, 2011

jirga strike, for example, stated: "We don't have any

revenge or anything else to take from America if they stop the drone attacks."

755 Many

interviewees repeatedly implored our research team to ask the US government to stop or

fundamentally change drone strike policies,

756 and instead assist their communities

through, for example, investments in health and education infrastructure.

757

750

DANIEL KLAIDMAN, KILL OR CAPTURE: THE WAR ON TERROR AND THE SOUL OF THE OBAMA PRESIDENCY 119

(2012).

751

Lahore 'was Pakistan Taleban Op', BBC NEWS (Mar. 31, 2009),

http://news.bbc.co.uk/2/hi/south_asia/7973540.stm.

752

Deposition of Thomas Galati, Commanding Officer of the New York City Police Department

Intelligence Division 24-27, 36-37 Handschu v. Special Services Division (S.D.N.Y. 2012),

available at

http://bit.ly/Sgw0fr.

753

Id. at 37.

754

Id. at 27.

755

Interview with Ahmed Jan, in Islamabad, Pakistan (Feb. 26, 2012). Of course, as we observed earlier,

some experiential victims do harbor animosity toward the US.

756

See, e.g., Interview with Ahmed Jan, in Islamabad, Pakistan (Feb. 26, 2012) ("This is why we have

come on this march to send this message across to the US to stop targeting us."); Interview with Umar

Ashraf (anonymized name), in Islamabad, Pakistan (Mar. 9, 2012) ("The first thing we want is for drones

to stop."); Interview with Firoz Ali Khan (anonymized name), in Islamabad, Pakistan (Feb. 26, 2012)("I

would like to ask that the drone strikes stop. We are sick of them."); Interview with Marwan Aleem

(anonymized name), in Islamabad, Pakistan (Feb. 26, 2012) ("Please stop these attacks."). It should be

noted that we spoke with some Pakistanis who, primarily due to their contempt of Taliban militants,

supported drone strikes. As one Pakistani official who requested anonymity told our research team,

"[s]ome people in South Waziristan who have suffered most at [the] hands of Taliban support drone

strikes." Interview with Pakistani official, in Peshawar, Pakistan (May 8, 2012).

757

See, e.g., Interview with Waleed Shiraz (anonymized name), in Islamabad, Pakistan (Feb. 26, 2012) (in

light of effect of drones on his education, appealing for aid or grant to continue his studies); Interview

138

D

RONES UNDERMINE US CREDIBILITY IN PAKISTAN AND THROUGHOUT THE

R

EGION

Despite the vast foreign aid the US has invested in Pakistan, a 2012 poll by the Pew

Research Center's Global

Attitude project found that

74% of Pakistanis consider

the US an enemy, up from

64% three years ago.

758

Only 45% of Pakistanis felt

it important to improve

relations with the US,

down from 60% the

previous year, and fewer support cooperation or even receiving aid from the US.

759

The growing unpopularity of the US in Pakistan weakens the countries' bilateral

relationship, makes it more difficult for Pakistani political leaders to work

collaboratively with the US, and risks undermining Pakistani democracy and

development. The deterioration of the Pakistani-US bilateral relationship may also place

US security at risk.

Dennis Blair, former Director of National Intelligence, described how unilateral

American drone attacks in Pakistan are eroding US "influence and damaging our ability

to work with Pakistan to achieve other important security objectives like eliminating

Taliban sanctuaries, encouraging Indian-Pakistani dialogue, and making Pakistan's

nuclear arsenal more secure."

760 Cameron Munter, who announced his early resignation

as US Ambassador to Pakistan in May 2012,

761 reportedly revealed to colleagues that he

with Najeeb Saaqib (anonymized name), in Islambad, Pakistan (Feb. 26, 2012) ("I think the government

or international agencies should give proper facilities like education, health, electricity so that our people

can also get educations and go to universities and change the thinking and [their] mindset.").

758

PEW RESEARCH CENTER, PAKISTANI PUBLIC OPINION EVER MORE CRITICAL OF US: 74% CALL AMERICA AN

E

NEMY (2012), available at http://www.pewglobal.org/files/2012/06/Pew-Global-Attitudes-Project-

Pakistan-Report-FINAL-Wednesday-June-27-2012.pdf.

759

Id.

760

Blair, supra note 721.

761

Rob Crilly, US Ambassador to Pakistan Steps Down Early, TELEGRAPH (May 8, 2012),

http://www.telegraph.co.uk/news/worldnews/asia/pakistan/9252189/US-ambassador-to-Pakistansteps-

down-early.html.

74% of Pakistanis consider the US an

enemy, up from 64% three years ago.

- Pew Research Center Global Attitude Survey 2012

139

"didn't realize his main job was to kill people."

762 In previous interviews, he criticized

the US use of drones, arguing that the attacks need to be more "judicious."

763 Although

Secretary of State Hilary Clinton strongly supports drone strikes, she reportedly also has

"complained to colleagues about the drones-only approach at Situation Room

meetings."

764 The New York Times reported in May 2012, "some officials felt the

urgency of counterterrorism strikes was crowding out consideration of a broader

strategy against radicalization."

765

The focus on drones also risks undermining Pakistan's development by incentivizing

undemocratic decision-making and fostering instability. In 2009, Anne Patterson, US

Ambassador to Pakistan, discussed the risks of the US drone strategy in a cable sent to

the Department of State. She noted, "Increased unilateral operations in these areas risk

destabilizing the Pakistani state, alienating both the civilian government and military

leadership, and provoking a broader governance crisis within Pakistan without finally

achieving the goal [of eliminating the Al Qaeda and Taliban leadership]."

766 Pakistan

High Commissioner to the United Kingdom Wajid Shamsul Hasan told

The Bureau of

Investigative Journalism

(TBIJ):

What has been the whole outcome of these drone attacks is, that you have rather

directly or indirectly contributed to destabilizing or undermining the democratic

government. Because people really make fun of the democratic government–

when you pass a resolution against drone attacks in the parliament, and nothing

happens. The Americans don't listen to you, and they continue to violate your

territory.

767

The US strikes have also contributed to the delegitimization of NGOs that are perceived

as Western, or that receive US aid, including those providing much-needed services,

762

Becker & Shane, supra note 719.

763

Adam Entous, Siobhan Gorman, & Matthew Rosenberg, Drone Attacks Split US Officials, WALL ST. J.

(June 4, 2011), http://online.wsj.com/article/SB10001424052702304563104576363812217915914.html.

764

Becker & Shane, supra note 719.

765

Id.

766

Cable from US Embassy in Islamabad to State Department (Sept. 23, 2009) (Wikileaks extract

224303),

reprinted in US Embassy Cables: 'Reviewing Our Afghanistan-Pakistan Strategy,

G

UARDIAN (Nov. 30, 2010), http://www.guardian.co.uk/world/us-embassy-cables-documents/226531.

767

Chris Woods, 'US Drone Strikes Undermine Pakistani Democracy' Says Top Diplomat, THE BUREAU

OF

INVESTIGATIVE JOURNALISM (Aug. 3, 2012), http://www.thebureauinvestigates.com/2012/08/03/usdrone-

strikes-undermine-pakistani-democracy-says-top-diplomat/.

140

such as access to water and education, and those administering the polio vaccine; this

perception has been exploited by Taliban forces.

768

The significant global opposition to drone strikes also erodes US credibility in the

international community. In 17 of the 20 countries polled by the Pew Global Attitudes

Project, the majority of those surveyed disapproved of US drone attacks in countries like

Pakistan, Somalia, and Yemen.

769 Widespread opposition spans the globe, from

traditional European allies such as France (63% disapproval) and Germany (59%

disapproval) to key Middle East states such as Egypt (89% disapproval) and Turkey

(81% disapproval).

770 As with other unpopular American foreign policy engagements,

including the invasion of Iraq and the practice of torture at Abu Ghraib and elsewhere,

drone strikes weaken the standing of the US in the world, straining its relationships with

allies, and making it more difficult for it to build multilateral alliances to tackle pressing

global challenges.

US T

ARGETED KILLING AND DRONE STRIKE PRACTICES MAY ESTABLISH

D

ANGEROUS PRECEDENTS AND UNDERMINE THE RULE OF LAW AND US

D

EMOCRACY

The practices employed, and legal frameworks articulated, by the US today may set

dangerous precedents for future engagements, including for other countries and armed

non-state actors. We are in the midst of a significant period of drone proliferation,

pushed forward on the one hand by governments and militaries, and on the other, by

manufacturers seeking to expand markets and profit. Unchecked armed drone

proliferation poses a threat to global stability, and, as more countries and non-state

actors obtain access to the technology, the risk of US-style practices of cross-border

targeted killing spreading are clear.

768

See, e.g., Musthaq Yusufzai, Taliban Bans Pakistan Polio Vaccinations Over Drone Strikes, MSNBC

(June 18, 2012), http://worldnews.msnbc.msn.com/_news/2012/06/18/12283097-taliban-banspakistan-

polio-vaccinations-over-drone-strikes?lite ("A Taliban commander in Pakistan's tribal belt has

banned a vaccination campaign against child polio in protest over frequent US drone attacks there.").

769

PEW RESEARCH CENTER, GLOBAL OPINION OF OBAMA SLIPS, INTERNATIONAL POLICIES FAULTED: DRONE

S

TRIKES WIDELY OPPOSED (2012), available at http://www.pewglobal.org/2012/06/13/global-opinion-ofobama-

slips-international-policies-faulted/. The only exceptions were the United Kingdom, in which only

a plurality, rather than a majority, opposed strikes (47 to 44% disapproval), and India and the US, in

which there was greater support for drones than opposition (32 to 21% approval in India and 62 to 28%

approval in the US).

Id.

770

Id.

141

According to the US Government Accountability Office (GAO), "at least 76 countries"

have acquired UAVs,

771 including China, Pakistan, Russia, and India.772 China alone has

25 types of systems currently in development;

773 Iran, whose arsenal includes the

"Ambassador of Death,"

774 is developing a drone with a range of more than 600 miles.775

Recently, in an unconfirmed

report, it was alleged that Israel

used a drone to strike and kill in

the territory of Egypt.

776

Reportedly, Iran has supplied the

Assad regime with drones, which it

has apparently already employed to

conduct surveillance on the

opposition.

777 Non-state

organizations like Hezbollah have

also entered the fray, reportedly

deploying an Iranian-designed drone;

778 the Free Syria Army also reportedly recently

built a small armed drone.

779 The GAO recently warned that "[t]he United States likely

771

US GOV'T ACCOUNTABILITY OFFICE, GAO-12-536, AGENCIES COULD IMPROVE INFORMATION SHARING AND

E

ND-USE MONITORING ON UNMANNED AERIAL VEHICLE EXPORTS 9 (2012); see also Micah Zenko, 10 Things

You Didn't Know About Drones

, FOREIGN POL'Y (Mar./Apr. 2012), available at

http://www.foreignpolicy.com/articles/2012/02/27/10_things_you_didnt_know_about_drones?page=

0,3 (placing the figure at 44-70 countries).

772

US GOV'T ACCOUNTABILITY OFFICE, supra note 771, at 10; see also David Cortright, The Scary Prospect

of Global Drone Warfare

, CNN (Oct. 19. 2011), http://www.cnn.com/2011/10/19/opinion/cortrightdrones/

index.html.

773

Zenko, supra note 771.

774

Id.

775

Cortright, supra note 772.

776

Mohamed Fadel Fahmy, Bedouin Man Dies in Apparent Rocket Strike on Israeli-Egyptian Border,

CNN (Aug. 27, 2012), http://edition.cnn.com/2012/08/26/world/meast/egypt-bedouin-killed/ ("An

Egyptian intelligence source confirmed the incident, saying, 'The conclusion after the investigation is that

a drone from across the border had fired a rocket and killed the Bedouin.'").

777

Iranian Weapons Help Bashar Assad Put Down Syria Protests, Officials Say, REUTERS (Mar. 24,

2012),

available at http://worldnews.msnbc.msn.com/_news/2012/03/24/10842227-iranian-weaponshelp-

bashar-assad-put-down-syria-protests-officials-say?lite.

778

Cortright, supra note 772.

779

David Cenciotti, Exposed: First Syrian Rebels DIY Unmanned Aerial Vehicle, AVIATIONIST (Aug. 31,

2012), http://theaviationist.com/2012/08/31/fsa-drone/.

"[A]t least 76 countries" . . . have

acquired UAVs, including

China, Pakistan, Russia, and

India.

- US Governemnt Accountability Office

142

faces increasing risks as additional countries of concern and terrorist organizations

acquire UAV technology."

780 As Peter Singer of the Brookings Institution has observed:

I think of where the airplane was at the start of World War I: at first it was

unarmed and limited to a handful of countries….Then it was armed and

everywhere. That is the path we're on.

781

Drone manufacturers are heavily pushing their products internationally and into new

markets,

782 and global spending on drones is expected to total more than $94 billion

over the next decade.

783 Indeed, there "is not a single new manned combat aircraft

under research and development at any major Western aerospace company, and the Air

Force is training more operators of unmanned aerial systems than fighter and bomber

pilots combined."

784

US manufacturers' exports of drones have been limited to date because of export

controls; however, significant pressure has been brought to bear on Congress,

particularly by drone manufacturers, to loosen the export regime.

785 In September 2012,

it was reported that the Pentagon had given approval for drone exports to 66

780

US GOV'T ACCOUNTABILITY OFFICE, supra note 771, at 17.

781

Scott Shane, Coming Soon: The Drones Arms Race, N.Y. TIMES (Oct. 8, 2011),

http://www.nytimes.com/2011/10/09/sunday-review/coming-soon-the-drone-armsrace.

html?pagewanted=all.

782

Drones have also rapidly been proliferating into US domestic airspace, in significant part due to the

efforts of drone manufacturers.

See, e.g., Ana Campoy, The Law's New Eye in the Sky, WALL ST. J. (Dec.

13, 2011), http://online.wsj.com/article/SB10001424052970204319004577088891361782010.html.

While they have thus far been used exclusively for surveillance, the prospect of armed drone usage by

domestic law enforcement and commercial clients should not be overlooked.

See, e.g., Conor

Friedersdorf, Congress Should Ban Armed Drones Before Cops in Texas Deploy One, A

TLANTIC (May 24,

2012), http://www.theatlantic.com/national/archive/2012/05/congress-should-ban-armed-dronesbefore-

cops-in-texas-deploy-one/257616/; Jason Gilbert,

ShockerDrone: Hackers Attach Shocking

Material to Drone Helicopter, Chase People, Stun Them

, HUFFINGTON POST (Aug. 30, 2012),

http://www.huffingtonpost.com/2012/08/30/shockerdrone-hackers-attach-stun-gun-dronehelicopter_

n_1843999.html.

783

Shane, supra note 781.

784

Peter W. Singer, Do Drones Undermine Democracy?, N.Y. TIMES (Jan. 21, 2012),

http://www.nytimes.com/2012/01/22/opinion/sunday/do-drones-underminedemocracy.

html?pagewanted=all.

785

See W.J. Hennigan, Drone Makers Urge US to Let Them Sell More Overseas, L.A. TIMES (July 1, 2012),

http://articles.latimes.com/2012/jul/01/business/la-fi-drone-foreign-sales-20120701; Andrea Stone,

Drone Lobbying Ramps Up Among Industry Manufacturers, Developers

, HUFFINGTON POST (May 25,

2012), http://www.huffingtonpost.com/2012/05/28/drone-lobbying-companies_n_1546263.html.

143

countries.

786 Representative Howard Berman (D- Los Angeles), ranking Democrat on

the House Foreign Affairs Committee, recently announced that his committee would

soon review drone sales, declaring that "it's crazy for us to shut off sales in this area

while other countries push ahead."

787 The Wall Street Journal reported in July 2012

that the US plans to provide Kenya with eight hand-launched Raven drones, which,

while currently unarmed, have sensors for pinpointing targets.

788 The drones are part of

a military assistance package aimed at helping African partners combat Al Qaeda and al

Shabaab 'militants' in Somalia.

789

Executive Director of the Arms Control Association Daryl Kimball describes how "[t]he

proliferation of this technology will mark a major shift in the way wars are waged,"

warning that "[w]e need to be very careful about who gets this technology. It could come

back to hurt us."

790 John Brennan himself acknowledged that the US is "establishing

precedent that other nations may follow."

791

The ways in which the US has used drones in the context of its targeted killing policies

has facilitated an undermining of the constraints of democratic accountability, and

rendered resort to lethal force easier and more attractive to policymakers. The decision

to use military force must be subject to rigorous checks-and-balances; drones, however,

have facilitated the use of killing as a convenient option that avoids the potential

political fallout from US casualties and the challenges posed by detention. Senator

Saxby Chambliss of Georgia, the top Republican on the Senate Intelligence Committee,

stated: "[The Obama administration's] policy is to take out high-value targets, versus

capturing high-value targets. They are not going to advertise that, but that's what they

are doing."

792

786

Doug Palmer & Jim Wolf, Pentagon Lists 66 Countries as Eligible to Buy US Drones, REUTERS (Sept.

5, 2012), http://www.reuters.com/article/2012/09/06/us-aircraft-usa-northrop-grummanidUSBRE88500B20120906;

Kevin Spak,

Pentagon OKs Drone Sales to 66, NEWSER (Sept. 6, 2012),

http://www.newser.com/story/153566/pentagon-oks-drone-sales-to-66-nations.html.

787

Hennigan, supra note 785.

788

Adam Entous, US to Provide Kenya with Drones to Fight Militants, WALL ST. J. (July 20, 2012),

http://online.wsj.com/article/SB10000872396390444097904577539362229840378.html.

789

Id.

790

Hennigan, supra note 785.

791

John O. Brennan, Assistant to the President for Homeland Security and Terrorism, The Ethics and

Efficacy of the President's Counterterrorism Strategy, Address at the Woodrow Wilson International

Center for Scholars (Apr. 30, 2012).

792

Becker & Shane, supra note 719. Obama's aides deny such a policy, arguing instead that capture is

impossible in remote parts of Pakistan and Yemen.

Id.

144

While drone warfare represents but the newest chapter in ever-increasing military

technological sophistication, "the distance between killer and killed, the asymmetry, the

prospect of automation and, most of all, the minimization of pilot risk and political risk"

render current practices particularly problematic.

793 As the technology develops, and as

drones become increasingly autonomous, these concerns will likely continue to

magnify.

794

A combat veteran of Iraq explained why drones may alter the calculus of warfare:

"[t]here's something important about putting your own sons and daughters at risk when

you choose to wage war as a nation. We risk losing that flesh-and-blood investment if we

go too far down this road."

795 A 2011 British Defense Ministry study of drones raises

these challenging questions:

If we remove the risk of loss from the decision-makers' calculations when

considering crisis management options, do we make the use of armed force more

attractive? Will decision-makers resort to war as a policy option far sooner than

previously?

796

Peter Singer insightfully describes how these questions also affect democratic

accountability: "when politicians can avoid the political consequences of the condolence

letter—and the impact the military casualties have on voters and on the news media—

they no longer treat the previously weighty matters of war and peace the same way….

[drones are] short-circuiting the decision-making process for what used to be the most

important choice a democracy could make."

797 Michael Hastings of Rolling Stone

concludes that the "immediacy and secrecy of drones makes it easier than ever for

leaders to unleash America's military might–and harder than ever to evaluate the

consequences of such clandestine attacks."

798 In 1848, President Abraham Lincoln

warned about the peril of granting such unrestrained power to the executive:

793

Id.

794

UN Special Rapporteur on extrajudicial, summary, or arbitrary executions, Interim Report of the

Special Rapporteur on extrajudicial, summary or arbitrary executions

, General Assembly, UN Doc

A/65/321 (Aug. 23, 2010) (by Philip Alston) (examining legal and ethical concerns around increasing

autonomy),

available at http://daccess-ddsny.

un.org/doc/UNDOC/GEN/N10/492/39/PDF/N1049239.pdf?OpenElement.

795

Mayer, supra note 695.

796

John Sifton, A Brief History of Drones, NATION (Feb. 7, 2012),

http://www.thenation.com/article/166124/brief-history-drones#.

797

Singer, supra note 784.

798

Hastings, supra note 715.

145

Allow the President to invade a neighboring nation, whenever he shall deem it

necessary to repel an invasion, and you allow him to do so, whenever he may

choose to say he deems it necessary for such purpose and you allow him to make

war at pleasure.

799

With policymakers making critical decisions about US policy outside the public's view,

and an utter lack of any real transparency and accountability,

800 the rule of law is

undermined and a democratic deficit created. The US government has refused to

explain adequately the legal basis for the strikes, as we discuss above in Chapter 4. In

calling for more transparency regarding the legal basis for the program, former CIA

director Michael V. Hayden stated: "democracies do not make war on the basis of legal

memos locked in a D.O.J. safe."

801

The opaque position of the US government on civilian casualties is also emblematic of

an accountability and democratic vacuum. Appendix C compares statements of US

officials on drones since January 2011 with strike data as reported by

TBIJ. The results

reveal a pattern of dishonesty in public statements about drones.

802 For example, in

June 2011, Deputy National Security Advisor John Brennan asserted that "there hasn't

been a single collateral death because of the exceptional proficiency, precision of the

capabilities we've been able to develop."

803 By this time, TBIJ had reported that at least

458 civilians had been killed

, including 31-42 in the March 17 strike (documented earlier

in this report) that had taken place less than three months prior.

804 While Brennan

subsequently clarified that he only meant to suggest that the US had yet to find credible

evidence of civilian casualties,

805 even this statement was later directly contradicted: in

May 2012, it was reported that President Obama "got word" that the first strike he

authorized on January 23, 2009 "had killed a number of innocent Pakistanis" on the

very same day.

806

799

Glenn Greenwald, Excuses for Assassination Secrecy, SALON (July 12, 2012),

http://www.salon.com/2012/07/12/excuses_for_assassination_secrecy/.

800

See Legal Analysis, supra Chapter 4: Legal Analysis.

801

Becker & Shane, supra note 719.

802

See also Justin Elliott, Obama Administration's Drone Death Figures Don't Add Up, PROPUBLICA

(J

UNE 18, 2012), http://www.propublica.org/article/obama-drone-death-figures-dont-add-up.

803

See Obama Administration Counterterrorism Strategy (C-Span television broadcast June 29, 2011),

http://www.c-spanvideo.org/program/AdministrationCo.

804

See supra Chapter 3: Living Under Drones.

805

See Scott Shane, C.I.A. Is Disputed on Civilian Toll in Drone Strikes, N.Y. TIMES (Aug. 11, 2011),

http://www.nytimes.com/2011/08/12/world/asia/12drones.html?pagewanted=all.

806

Becker & Shane, supra note 719.

146

In light of these concerns, author, political commentator, and former constitutional

lawyer Glenn Greenwald pointedly asks, "[i]f you believe the President should have the

power to order people, including US citizens, executed with no due process and not even

any checks or transparency, what power do you believe he shouldn't have?"

807

807

Greenwald, supra note 799; see also Conor Friedersdorf, Obama's Execution of the Drone War Should

Terrify Even Drone Defenders

, ATLANTIC (July 12, 2012),

http://www.theatlantic.com/politics/archive/2012/07/obamas-execution-of-the-drone-war-shouldterrify-

even-drone-defenders/259704/ ("Is it imprudent to give this president and all future presidents

the unchecked power to kill in secret? Or does human nature and the framework of checks and balances

devised by America's founders suggest that multiple layers of oversight is the wiser course?").

147

A

PPENDIX A: TESTIMONY

The following provides excerpts from the testimony of individuals who told our research

team that they had survived or witnessed drone strikes, or lost family members in

strikes.

Sadaullah Wazir, teenager, former student from the village of Machi Khel

in Mir Ali, North Waziristan, was severely injured in a September 2009

drone strike on his grandfather's home.

808 Sadaullah has filed a complaint

before the UN Human Rights Council.

809

"Before the drone strikes started, my life was very good. I used to go to school and I used

to be quite busy with that, but after the drone strikes, I stopped going to school now. I

was happy because I thought I would become a doctor." Sadaullah recalled, "Two

missiles [were] fired at our

hujra and three people died. My cousin and I were injured.

We didn't hear the missile at all and then it was there." He further explained, "[The last

thing I remembered was that] we had just broken our fast where we had eaten and just

prayed. . . .We were having tea and just eating a bit and then there were missiles. . . .

When I gained consciousness, there was a bandage on my eye. I didn't know what had

happened to my eye and I could only see from one." Sadaullah lost both of his legs and

one of his eyes in the attack. He informed us, "Before [the strike], my life was normal

and very good because I could go anywhere and do anything. But now I am not able to

do that because I have to stay inside. . . . Sometimes I have really bad headaches. . . .

[and] if I walk too much [on my prosthetic legs], my legs hurt a lot. [Drones have]

drastically affected life [in our area]."

808

Interview with Sadaullah Wazir, in Islamabad, Pakistan (Feb. 29, 2012).

809

Reprieve, Complaint Against the United States of America for the Killing of Innocent Citizens of the

Islamic Republic of Pakistan to the United Nations Human Rights Council

,

http://reprieve.org.uk/media/downloads/2012_02_22_PUB_drones_UN_HRC_complaint.pdf?utm_so

urce=Press+mailing+list&utm_campaign=89f3db0a75-

2012_02_23_drones_UN_complaint&utm_medium=email.

148

Waleed Shiraz, 22, was pursuing a Bachelor of Arts in Political Science and

taking various foreign language courses before he became disabled.

810

"My father was asleep in the

hujra as usual after a normal day, and I was studying

nearby. . . . I had liked studying in the

hujra, because it is peaceful and quiet. There was

nothing different about our routine in the prior week." Waleed recounted the

subsequent sequence of events. "[When we got hit], [m]y father's body was scattered in

pieces and he died immediately, but I was unconscious for three to four days. . . . [Since

then], I am disabled. My legs have become so weak and skinny that I am not able to walk

anymore. . . . It has also affected my back. I used to like playing cricket, but I cannot do

it anymore because I cannot run."

"I have two younger brothers, who are both unemployed, and I don't have a father and I

am disabled. I have been completely ruined. . . . [My brothers] can't go to school,

because I can't afford to support them, buying their books, and paying their fees. They

are home most of the day and they are very conscious of the fact that drones are

hovering over them. [The presence of drones] intimidates them."

"If the drones had not become routine and my father had not died and I hadn't lost my

leg, today I would have completed my MA in Political Science." Waleed explained, "I

can't dream of going back to college."

Dawood Ishaq is a father of four young children who works as a vegetable

merchant in North Waziristan.

811

"I was going to [a] chromite mine for work. On the way, as the car was going there, a

drone targeted the car. . . . All I remember is a blast, and that I saw a bit of fire in the car

before I lost consciousness. The people in the back completely burned up, and the car

caught fire." Dawood was taken to several locations for treatment, before he awoke in

Peshawar. "[The] driver and I lost our legs . . ."

810

Interview with Waleed Shiraz (anonymized name), in Islamabad, Pakistan (Feb. 26, 2012).

811

Interview with Dawood Ishaq (anonymized name), in Islamabad, Pakistan (Mar. 8, 2012).

149

Adil Hashmi's house was destroyed in a drone strike.

812

"A drone struck my home. . . .[At that time] there was nobody in my home [so] no one

[was] killed. . . . I went back to see the home, but there was nothing to do. I just saw my

home wrecked and came back. I was extremely sad, because normally a house costs

around ten

lakh, or 1,000,000 rupees [approximately $10,600], and I don't even have

5,000 rupees [approximately $53] now. I spent my whole life in that house. My father

had lived there as well."

"[I now have to rent a house.] There is a big difference between having your own home

and living on rent or mortgage. I enjoyed a lot of freedom and a lot of flexibility before. I

have five sons and they all live with me in the house in Miranshah now. . . ."

Tahir Afzal's brother died in a drone strike.

813

"It was in the afternoon around two o'clock and he was on his way to work. They were in

a car. A drone struck and four people died in it, including children who were walking on

the road. . . . There were lots of drones wandering over that day. They were wandering

all over, and as the car passed by, it was targeted." Tahir told our team, "He was my

older brother, and I miss him a lot."

"[Before, e]verybody was involved in their own labor work. We were all busy. But since

the drone attacks have started, everybody is very scared and everybody is terrorized. . . .

People are out of business, people are out of schools, because people are being killed by

these drone attacks." Tahir emphasized, "It's not a [fictional] story. It's brutality that we

are undergoing and that needs to be stopped."

Khairullah Jan's brother was killed in a drone attack.

814

"[One day, [m]y brother was coming from college . . . . dropping his friend to his house,

which is located behind our house a few kilometers away. . . . I was coming from Mir Ali

Bazaar . . . going to my house. That's when I heard a drone strike and I felt something in

my heart. I thought something had happened, but we didn't get to know until next day.

That's when all the villagers came and brought us news that [my brother] had been

812

Interview with Adil Hashmi (anonymized name), in Islamabad, Pakistan (Feb. 26, 2012).

813

Interview with Tahir Afzal (anonymized name), in Islamabad, Pakistan (Feb. 26, 2012).

814

Interview with Khairullah Jan, in Islamabad, Pakistan (Feb. 29, 2012).

150

[killed] . . . I was drinking tea when I found out. [My] entire family was there. They were

crying . . . . [T]o lose such a young one; everybody is sad and it also affects the tribe, our

community, as well. My mother is really affected. She is sad all the time, and my father

is also heavily affected. At times he used to go to Peshawar or Karachi, he was outgoing,

but now he sits at home."

"I have been affected. The love that I had for studies—that has finished. My

determination to study—that is also gone. . . . if, for instance, there is a drone strike and

four or five of your villagers die and you feel sad for them and you feel like throwing

everything away, because you feel death is near— [death is] so close, so why do you want

to study?"

Ismail Hussain's cousin was killed in a drone strike.

815

"We were sitting together and my mother said Sajid did not come home. She said there

was [a] drone [attack] and so my mother said to go ask about Sajid. . . . When I came to

know that the drone [attack] had happened in the other village, I took my motorcycle to

go to that village. . . . When I reached that village, people told me Sajid and some others

were injured and were taken to the hospital. They didn't want to make me sad. Then I

went to Miranshah hospital. I didn't meet with him because before I arrived he died.

The body of my uncle's son was put into a box. I took it to my village. I placed it in the

house of my neighbor during

Fajr [dawn] prayers. At the time of Fajr, I took it to my

home." Ismail informed us, "His mother hangs his picture on the wall. She looks at it 24

hours [a day] and cries."

Hisham Abrar's cousin was killed in a drone strike.

816

"When the weather is clear, three or four [drones] can be seen . . . . They are in the air 24

[hours a day], seven [days a week], but not when it's raining. Every time they are in the

air, they can be heard. And because of the noise, we're psychologically disturbed—

women, men, and children. . . . When there were no drones, everything was all right.

[There was] business, there was no psychological stress and the people did what they

could do for a living."

815

Interview with Ismail Hussain (anonymized name), in Islamabad, Pakistan (Feb. 29, 2012).

816

Interview with Hisham Abrar (anonymized name), in Islamabad, Pakistan (Feb. 26, 2012).

151

"[The drone strikes have caused many problems:] [f]irst, it's psychological. Diseases that

people have—psychological, mental illnesses. And that's a huge issue. Secondly, a lot of

men have been killed, so they're the wage earners for the house, and now the kids and

the families don't have a source of income because of that." Hisham noted that "[others

in the community help sometimes, but [i]n Waziristan, there are poor people, and

[victims] usually rely on . . . daily wage earning. That's only sufficient for themselves, so

it's hard to help others. But whenever they can, they do."

Khalid Raheem is an elder member of his community.

817

"We did not know that America existed. We did not know what its geographical location

was, how its government operated, what its government was like, until America invaded

Iraq and Afghanistan. We do know that Americans supported the Taliban in our area,

North Waziristan, to fight off the Soviets. But [now with] the Soviets divided and broken

. . . we have become victims of Americans. We don't know how they treat their citizens

or anything about them. All we know is that they used to support us, and now they don't.

. . . [W]e didn't know how they treated a common man. Now we know how they treat a

common man, what they're doing to us."

"We know that the consequences of drone strikes are extremely harsh. Our children, our

wives know that our breadwinners, when they go out to earn a livelihood, they might not

come back, and life may become very miserable for them in the years to come." Khalid

further explained, "Now we are always awaiting a drone attack and we know it's certain

and it's eventual and it will strike us, and we're just waiting to hear whose house it will

strike, our relatives', our neighbors', or us. We do not know. We're just always in fear."

Firoz Ali Khan is a shopkeeper in Miranshah.

818

"I have been seeing drones since the first one appeared about four to five years ago.

Sometimes there will be two or three drone attacks per day. . . . [We see drones]

hovering [24 hours a day but] we don't know when they will strike." Firoz explained,

"People are afraid of dying. . . . Children, women, they are all psychologically affected.

They look at the sky to see if there are drones. Firoz told us, "[The drones] make such a

noise that everyone is scared."

817

Interview with Khalid Raheem (anonymized name), in Islamabad, Pakistan (Feb. 26, 2012).

818

Interview with Firoz Ali Khan (anonymized name), in Islamabad, Pakistan (Feb. 26, 2012).

152

Marwan Aleem is a

malik in his community

.819

"My name is Marwan and I am from North Waziristan, in the area of Manzar Khel. I was

born and raised here, as was my grandfather. . . . [D]rone attacks create widespread

devastation. They have killed so many young men, who have left behind helpless young

orphans. We cannot figure out when a drone will strike—they may strike in two days,

three days, ten days, or a month—but they are always there."

Najeeb Saaqib is a

malik in his community

.820

"I belong to the Wazir nation. . . . I have a[n extended] family of 60 to 70 people. My

sons and daughters were going to schools, [but] the schools were affected by the drones.

I mean these attacks have been on schools, on

maliks, on elders, and on different

buildings. . . . [S]ometimes when people are moving in cars, they are hit. Sometimes

when they are gathering with friends, they are hit. Sometimes when people are

gathering to offer prayers to those killed, there are drone attacks on those people. . . .

[M]y own relatives, close family relatives, have been killed. Elders of the villages, the

maliks,

the children of the schools, other children, all have been victims of strikes.

"[In one case,] [t]here was a drone attack on a religious teacher while he was coming in

a car with some other people, after which he was brought to the village. A lot of people

were gathering, the small children and families were gathered, and another drone attack

happened, killing the small children. Two drone attacks in a single day."

Najeeb later told us, "We love unity. We love peace. We love to live in peace with other

people as well."

819

Interview with Marwan Aleem (anonymized name), in Islamabad, Pakistan (Feb. 26, 2012).

820

Interview with Najeeb Saaqib (anonymized name), in Islamabad, Pakistan (Feb. 26, 2012).

0

10

20

30

40

50

60

Jan Feb Mar Apri May June July Aug Sept Oct Nov Dec

Appendix B:

Strike & Minimum Casualty

Number of Strikes Numbers per Week (2010)

Mininum Casualties

12/30/2009:

Double

Agent kills 7

at CIA base

in Khost ,

Afghanistan

5/1:

Attempted

Car

Bombing of

Times

Square

7/11: Shabaab (Somali branch of Al-Qaeda)

claims credit for suicide bombings in Uganda

that killed 74

7/14 Martyrdom tape of failed Times Square

bomber shows up on internet

Floods

12/13: Karim Khan

names CIA station

chief in lawsuit

against CIA for drone

strike that killed his

relatives. CIA pulls

station chief

153

0

10

20

30

40

50

60

Jan Feb Mar Apr May June July Aug Sept Oct Nov Dec

Strike & Minimum Casualty Numbers per Week in 2011

Number of Strikes

Mininum Casualties

1/27

Raymond Davis

detained in

Lahore for

shooting 2

Pakistanis

3/8-3/16: Eight strikes kill min. 33

3/16: Pakistan releases Davis

3/17: Strike on jirga kills min . 42

(Mid-Apr) ISI chief

visits DC; has

"shouting match"

with Panetta

4/22: ISI chief still in

D.C.; drone strike

kills 25

5/2

Bin Laden

killed

9/22: Adm.

Mullen

accuses ISI of

directly

supporting

Haqqani

network

10/13:

Talks begin

to improve

relations

11/26: U.S.-led NATO

attack kills 24 Pakistani

soldiers at Salala

checkpoint . Tensions

flare.

Obama

Administration

announces partial

suspension of U.S.

military aid to

Islamabad

154

0

2

4

6

8

10

12

14

16

18

Jan Feb Mar Apri May June July

Strike & Minimum Casualty Numbers per Week in 2012

Number of Strikes

Mininum Casualties

1/10

U.S. ends 55

day pause in

strikes

1/28: Panetta calls upon Pakistan

to release doctor who turned in

bin Laden.

2/8: Pakistan refuses Panetta's

request 3/28: Obama&

Gilani meet while

attending nuclear

summit in Seoul

3/29: Top Military

chiefs begin

negotiations to reopen

Afghan

supply lines

4/27: Talks

break down

4/29: U.S.

launches 1st

strike in 29 days

6/11:

U.S. team

negotiating

opening of

supply lines

withdraws

5/20: NATO Summit; Obama

refuses to meet Zadari

5/24: Doctor Sentenced

7/3

Pak reopens

supply

lines

7/6: Strike kills 17

7/8: U.S. and Pak

scheduled to meet in

Tokyo

155

156

A

PPENDIX C

US S

TATEMENTS ON CIVILIAN CASUALTIES

D

ATE U.S. ASSERTIONS

TBIJ R

EPORTED

C

IVILIAN DEATHS

E

XAMPLES OF CONTRADICTORY

I

NFORMATION

January 2011

No civilian casualties between mid-

August 2010 and January 2011,

despite increased frequency of CIA

strikes in Pakistan.

821

Unnamed

U.S.

official

to

Bloomberg

News

Sept. '10—Jan. '11

Civilians Killed: 25-106

Children Killed: 5+

Husain Haqqani, Pakistan's ambassador to the

U.S., tells Bloomberg unintended casualties are

"the subject of an ongoing dialogue" between

the US and Pakistan.

822

Bloomberg News

February 2011

No civilians killed in at least 75

strikes since mid-Aug.

823

Unnamed

U.S.

intelligence

official

Sept. '10—Feb. '11

Civilians killed: 25-117

Children Killed: 5+

October 18, 2010: Shrapnel from a strike on a

house kills 10-year-old, Naeem Ullah, who was

in the next-door house.

824

The Bureau of Investigative Journalism

August 23, 2010: Reuters report four women

and three children were among the twenty

dead in a strike on a house in North

Waziristan.

825 TBIJ has pictures of children

orphaned by the strike.

826

Reuters / The Bureau of Investigative Journalism

821

http://www.bloomberg.com/news/2011-01-31/u-s-said-to-reduce-civilian-deaths-after-increasing-cia-pakistan-strikes.html

822

http://www.bloomberg.com/news/2011-01-31/u-s-said-to-reduce-civilian-deaths-after-increasing-cia-pakistan-strikes.html.

823

http://articles.latimes.com/2011/feb/22/world/la-fg-drone-strikes-20110222.

824

A picture of Naeem's body can be found here: http://www.thebureauinvestigates.com/2011/08/10/obama-2010-strikes/.

825

http://www.reuters.com/article/2010/08/23/us-pakistan-drone-idUSTRE67M44U20100823.

826

http://www.thebureauinvestigates.com/2011/08/10/obama-2010-strikes/.

157

US S

TATEMENTS ON CIVILIAN CASUALTIES

D

ATE U.S. ASSERTIONS

TBIJ R

EPORTED

C

IVILIAN DEATHS

E

XAMPLES OF CONTRADICTORY

I

NFORMATION

March 2011

"There's no question the Pakistani

and U.S. governments have

different views on the outcome of

this strike [on a

jirga on March 17].

The fact is that a large group of

heavily armed men, some of whom

were clearly connected to Al Qaeda

and all of whom acted in a manner

consistent with Al Qaeda-linked

militants, were killed."

827

Anonymous

U.S.

official

March 17, 2011

Total Deaths: 32-53

Civilians Killed: 32-42

Children Killed: poss. 1

"Although 11 Taliban fighters were reported

killed, between 19 and 30 civilians also died,

including tribal elders and local police

officers."

828

New York Times

Pakistan's powerful army chief, Gen. Ashfaq

Parvez Kayani, said the

jirga "was carelessly

and callously targeted with complete disregard

to human life."

829

ABC News

"[The Burea of Investigative Journalism's]

researchers said the dead included members of

the government-managed and armed

Khassadar force. One of the contractors, Malik

Daud, 45, was killed along with members of his

family. Among the civilians killed were Malik

Daud, Gul Akbar, Mohammad Sheen, Lewanai,

Mir Zaman, Din Mohammad, Malik Tareen,

Noor Ali, Zare Jan, Sadiq, Mustaqeem,

Khangai, Gulnaware and Faenda Khan."

830

New York Times

827

http://www.nytimes.com/2011/08/12/world/asia/12droneside.html?ref=asia.

828

http://www.nytimes.com/2011/08/12/world/asia/12droneside.html?ref=asia.

829

http://abcnews.go.com/International/wireStory?id=14213135&page=3#.T6wr9uufd8A.

830

http://www.nytimes.com/2011/08/12/world/asia/12droneside.html?ref=asia.

158

US S

TATEMENTS ON CIVILIAN CASUALTIES

D

ATE U.S. ASSERTIONS

TBIJ R

EPORTED

C

IVILIAN DEATHS

E

XAMPLES OF CONTRADICTORY

I

NFORMATION

April 2011

"There is no evidence to support

that claim [of civilian deaths in the

April 22 strike] whatsoever."

831

U.S. official to CNN in response to reports from

Pakistani intelligence sources of civilian deaths

April 22, 2011

Total Deaths: 25-26

Civilians Killed: 5-8

Children Killed: 3

Government official in North Waziristan tells

Pakistani reporters that five children and four

women were killed.

832

New York Times

"At least three women were among the

dead."

833

Wall Street Journal

Pakistani official state that eight civilians were

killed.

834

CNN

Neighbor states that three children and two

women killed.

835

Associated Press

831

http://articles.cnn.com/2011-04-22/world/pakistan.drone.strike_1_drone-strike-american-drone-pakistani-tribal-region?_s=PM:WORLD

832

http://www.nytimes.com/2011/04/23/world/asia/23pakistan.html?_r=2&src=me.

833

http://online.wsj.com/article/SB10001424052748703387904576278122411803628.html.

834

http://edition.cnn.com/2011/WORLD/asiapcf/04/22/pakistan.drone.strike/?hpt=T2.

835

http://abcnews.go.com/International/wireStory?id=14213135&page=3#.T6wr9uufd8A.

159

US S

TATEMENTS ON CIVILIAN CASUALTIES

D

ATE U.S. ASSERTIONS

TBIJ R

EPORTED

C

IVILIAN DEATHS

E

XAMPLES OF CONTRADICTORY

I

NFORMATION

May 2011

Since the beginning of 2009, only

30 "noncombatants" have been

killed and none since summer 2010.

Drones are "the most precise

weapon in the history of warfare."

836

U.S. official "familiar with the details of the

[drone] program" tells National Journal

Sep. '10—May '11

Civilians Killed: 73-183+

Children Killed: 8+

Study finds 53 civilians, including two women

and three children, were killed in nine drone

strikes between August 2010 and May 2011.

837

Associated Press

June 2011

"Nearly for the past year there

hasn't been a single collateral death

because of the exceptional

proficiency, precision of the

capabilities that we've been able to

develop."

838

John Brennan, Deputy National Security Advisor

for Homeland Security and Counterterrorism,

and Assistant to the President

Sep. '10—June '11

Civilians Killed: 87-223+

Children Killed: 8+

June 6, 2011: Report that seven civilians are

among the dead in two three suspected drone

strikes.

839

CNN

836

http://www.nationaljournal.com/magazine/secret-love-obama-s-budding-romance-with-the-cia-20110511?page=3.

837

http://www.usnews.com/news/world/articles/2012/02/25/ap-investigation-of-us-drone-strikes-in-pakistan.

838

June 29, 2011 speech at Paul H. Nitze School of Advanced International Studies at Johns Hopkins University in Washington, reported at

http://articles.latimes.com/2011/jun/29/news/la-pn-al-qaeda-strategy-20110629

.

839

http://edition.cnn.com/2011/WORLD/asiapcf/06/06/pakistan.attacks/

160

US S

TATEMENTS ON CIVILIAN CASUALTIES

D

ATE U.S. ASSERTIONS

TBIJ R

EPORTED

C

IVILIAN DEATHS

E

XAMPLES OF CONTRADICTORY

I

NFORMATION

July 2011

"There haven't been any

noncombatant casualties for about a

year, and assertions to the contrary

are wrong. The most accurate

information on counter-terror

operations resides with the United

States, and this list is wildly

inaccurate. Those operations are

designed to protect America and our

allies, including Pakistan, from

terrorists who continue to seek to

kill innocents around the world."

840

Senior U.S. Official

Sep. '10—July '11

Civilians Killed: 92-233+

Children Killed: 8+

The Bureau of Investigative Journalism

releases report that finds between August 23,

2010 and June 29, 2011 "45-56 civilian victims

across 10 individual strikes."

841

The Bureau of Investigative Journalism

June 15, 2011: A drone strike on a car kills five

civilians and leads to an outpouring of local

anger. Residents used the coffins of the dead to

block roads in protest.

842 Among the dead

were: Shahzada; a student and the grandson of

a tribal elder, Akram Shah, a government

employee, Atiq ur Rehman, a local pharmacist,

Irshad Khan, who worked for Rehman, and

Amar Khan, a local student at Miransha

college.

843

Dawn.com / The Bureau of Investigative Journalism

840

http://www.thebureauinvestigates.com/2011/07/18/washingtons-untrue-claims-no-civilian-deaths-in-pakistan-drone-strikes/.

841

http://www.thebureauinvestigates.com/2011/07/18/washingtons-untrue-claims-no-civilian-deaths-in-pakistan-drone-strikes/.

842

http://dawn.com/2011/06/17/tribesmen-protest-drone-attacks/

843

http://www.thebureauinvestigates.com/2011/08/10/obama-2011-strikes/

161

US S

TATEMENTS ON CIVILIAN CASUALTIES

D

ATE U.S. ASSERTIONS

TBIJ R

EPORTED

C

IVILIAN DEATHS

E

XAMPLES OF CONTRADICTORY

I

NFORMATION

August 2011

"Fortunately, for more than a year,

due to our discretion and precision,

the U.S. government has not found

credible evidence of collateral

deaths resulting from U.S.

counterterrorism operations outside

of Afghanistan or Iraq, and we will

continue to do our best to keep it

that way."

844

John Brennan, Deputy National Security Advisor

for Homeland Security and Counterterrorism,

and Assistant to the President

Aug. '10-Aug. '11

Civilians Killed: 112-

276+

Children Killed: 15+

Study finds 53 civilians, including two women

and three children, were killed in nine drone

strikes between August 2010 and May 2011.

845

Associated Press

September

2011

N.A. N.A. N.A.

844

http://www.nytimes.com/2011/08/12/world/asia/12drones.html?pagewanted=all.

845

http://www.usnews.com/news/world/articles/2012/02/25/ap-investigation-of-us-drone-strikes-in-pakistan.

162

US S

TATEMENTS ON CIVILIAN CASUALTIES

D

ATE U.S. ASSERTIONS

TBIJ R

EPORTED

C

IVILIAN DEATHS

E

XAMPLES OF CONTRADICTORY

I

NFORMATION

October 2011

Regarding October 31st strike on car

carrying 16 year old Tariq Khan and

his 12-year-old cousin: "A U.S.

official acknowledged to ABC News

that the car was targeted by the CIA,

but said the two people inside it

were militants, and that neither

occupant was a 12-year-old."

846

Anonymous U.S. official

October 31, 2011

Civilian Deaths: 2

Children Killed: 2

Clive Stafford Smith, founder of Reprieve, a

UK-based charity, confirms Tariq Khan

attended a three day meeting in Islamabad

three days before he was killed. The meeting

was hosted by Reprieve and included more

than 60 villagers from FATA, all of whom

gathered to discuss drones in their

communities. According to Stafford Smith,

"Tariq was a good kid, and courageous."

847

New York Times

"If Tariq Aziz, the 16-year-old soccer fan I met

last week in Pakistan was a dangerous Taliban

terrorist, let the CIA prove it."

848

Pratap Chatterjee, The Guardian

November

2011

N.A. N.A. N.A.

December

2011

N.A. N.A. N.A.

846

http://abcnews.go.com/Blotter/tariq-khan-killed-cia-drone/story?id=15258659#.T7K-rOufdm1.

847

http://www.nytimes.com/2011/11/04/opinion/in-pakistan-drones-kill-our-innocent-allies.html?_r=3&src=tp

848

http://www.guardian.co.uk/commentisfree/cifamerica/2011/nov/07/cia-unaccountable-drone-war?INTCMP=ILCNETTXT3487.

163

US S

TATEMENTS ON CIVILIAN CASUALTIES

D

ATE U.S. ASSERTIONS

TBIJ R

EPORTED

C

IVILIAN DEATHS

E

XAMPLES OF CONTRADICTORY

I

NFORMATION

January 2012

President Obama, acknowledging

the drone program for the first time,

states that it is "kept on a very tight

leash," enables the U.S. to use

"pinpoint" targeting, and does not

inflict huge civilian casualties.

849

President Barak Obama

Jan. '09-Dec. '11

Total strikes: 259

Total Killed: 1932

Minimum Civilians

Killed: 297-569+

Minimum Children

Killed: 64+

Minimum Total Injured:

901

Since Obama took office three years ago,

between 282 and 535 civilians have been

credibly reported as killed, including more

than 60 children. A three month investigation

including eye witness reports has found

evidence that at least 50 civilians were killed in

follow-up strikes when they had gone to help

victims.

850

The Bureau of Investigative Journalism

Between May 2009 and June 2011, at least

fifteen attacks on rescuers were reported by

credible news media.

New York Times / CNN / Associated Press /

ABC News / Al Jazeera.

851

February 2012

U.S. "has no reliable evidence" of

civilian deaths in any of the

examined strikes.

Unnamed U.S. counterterrorism official

responding to investigation by the Associated

Press. The AP investigation looked at 10 drone

strikes between August 14, 2010 and August 10,

2011 and found evidence of civilian deaths.

852

AP Report (10 strikes)

Total Civilians Killed: 53

Total Children Killed: 3

(re: April 22, 2011 strike) AP Study finds

"[m]issiles hit a compound in Hasan Khel

village, killing 25 people, including 20

militants, three children and two women."

853

Seattle Times / Associated Press

849

http://www.nytimes.com/2012/01/31/world/middleeast/civilian-deaths-due-to-drones-are-few-obama-says.html.

850

http://www.thebureauinvestigates.com/2012/02/04/obama-terror-drones-cia-tactics-in-pakistan-include-targeting-rescuers-and-funerals/

851

http://www.thebureauinvestigates.com/2012/02/04/obama-terror-drones-cia-tactics-in-pakistan-include-targeting-rescuers-and-funerals/

852

http://www.usnews.com/news/world/articles/2012/02/25/ap-investigation-of-us-drone-strikes-in-pakistan.

853

http://seattletimes.com/html/nationworld/2017595106_apaspakistandroneshumancostglance.html

164

US S

TATEMENTS ON CIVILIAN CASUALTIES

D

ATE U.S. ASSERTIONS

TBIJ R

EPORTED

C

IVILIAN DEATHS

E

XAMPLES OF CONTRADICTORY

I

NFORMATION

March 2012

April 2012

Brennan states that for a period of

time the U.S. "had no information

about a single civilian being killed,"

but "unfortunately in war there are

casualties, including among the

civilian population." He adds,

"sometimes you have to take life to

save lives."

854

John Brennan, Deputy National Security Advisor

for Homeland Security and Counterterrorism,

and Assistant to the President

Aug. '10 – Apr. '12

Civilians Killed: 117-

284+

Children Killed: 17+

854

Speaking on ABC "This Week," reported at http://latimesblogs.latimes.com/world_now/2012/04/brennan-drone-attacks.html.

165

 

168

Image of original photos

taken by Noor Behram,

Pakistani photojournalist. The

photos are part of a collection of

images of drone victims and drone

sites compiled by Mr. Behram.

© 2012 Stanford Law School & NYU School of Law
http://livingunderdrones.org/wp-content/uploads/2012/09/Stanford_NYU_LIVING_UNDER_DRONES.pdf




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NADEEM MALIK LIVE

NADEEM MALIK LIVE

Nadeem Malik Live is the flagship current affairs programme of Pakistan. The programme gives independent news analysis of the key events shaping future of Pakistan. A fast paced, well rounded programme covers almost every aspect, which should be a core element of a current affairs programme. Discussion with the most influential personalities in the federal capital and other leading lights of the country provides something to audience to help them come out with their own hard hitting opinions.

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