Lawfare Book Review Editor Kenneth Anderson is planning, in short order, to launch a new feature flagging and recommending must-read scholarship in the world of national security and law--a matter on which Ken will have more to say in the coming days. Leave it to Pepperdine law professor Gregory McNeal to release this extraordinary article
on SSRN before our new feature is entirely ready for prime time.
In all seriousness, I urged Greg to make his article public quickly, because it really is a very timely and important study. Entitled "The U.S. Practice of Collateral Damage Estimation and Mitigation," the article is a step outside the normal debate over targeted killing, which looks normatively at what law and morality permit in targeting and then moves on quickly to questions of proportionality. Greg argues that this whole debate misses a key step--for one doesn't even reach the proportionality question, he points out, until one has done everything one can do to minimize the possibility of collateral damage. And that raises the question of what the United States really does to avoid civilian casualties. This is not a normative question or a legal one. It is an empirical question, and McNeal's article is a deep descriptive dive into that empirical question. Using a combination of court documents, unclassified records, at least one Wikileaked document, and a penetrating set of interviews, he traces a remarkably sophisticated decision-making tree aimed at--before planned engagements can be approved--both assessing the likelihood and magnitude of civilian casualties and, if such casualties are likely, minimizing the threat of civilian injury. As McNeal writes in his introduction:
The process I describe involves a series of steps based on a progressively refined analysis of intelligence, weapon effects, and other information intended to ensure that if a particular weapon is employed against a target there will be a less than 10 percent probability of serious or lethal wounds to non-combatants. I describe how, at the terminal point of the collateral damage estimation and mitigation process, if no mitigation technique will prevent civilian casualties, a senior commander (usually a General officer), the Secretary of Defense or the President of the United States must make a judgment about proportionality. In current conflicts in Iraq and Afghanistan this means that operations involving even one predicted civilian casualty receive relatively frequent scrutiny by the National Command Authority.
Whatever your view of the merits of targeted killing, this article, in my view at least, will enrich your understanding of the way targeting is done. It should be required reading for anyone participating in the many debates surrounding targeted killing. While it deals only with the military, not the CIA, and only with strikes that are reviewed in advance--and thus does not present a complete picture of U.S. targeting practices--it does give a rich sense of the methodological care and seriousness with which the military approaches the problem of collateral damage. I have asked McNeal to write a guest post summarizing his findings. So those who aren't up for the extended dance version I link to here can stay tuned for the condensed, soul-of-wit version.