by Charles J. Dunlap
President Donald Trump’s new executive order rescinding a provision of an Obama-era executive order that required public reporting of civilian and combatant deaths in U.S. counterterrorism strikes “outside areas of active hostilities” has garnered concern from transparency advocates. They express fears that President Trump’s action will deprive the public of information it needs to judge the appropriateness of the United States’ use of force in an era of persistent conflict against global terror threats. I agree that it is vitally important in democracy to keep the public informed, but giving the public raw numbers of deaths – “body counts” in essence – in isolation from other key factors essential to determining the propriety of the use of force will likely cause more confusion that clarity.
As Larry Lewis noted, much (albeit not all) of the information required by the rescinded section of the Obama order must now be furnished to Congress in any case, as a result of recent National Defense Authorization Act (NDAA) requirements. Those requirements go a long way in providing the necessary transparency to Congress about the actions formerly covered by the Obama order. As Professor Bobby Chesney explained on his National Security Law podcast:
There’s all sorts of reporting to Congress that ensures there is a specific [sic] it’s called “sensitive military operations.” If the U.S. uses lethal force in a military capacity outside an area of active hostilities, members of the House and Senate Armed Service Committees, including the Democratic members, are absolutely going to be notified. And if there’s something squirrely going on with some new location where this is happening and the public doesn’t know, I think we can expect that we’ll hear something from that context, and there’s a covert action parallel of course with the House and Senate. I’m not saying that therefore we don’t need to have any other sources, that’s not what I’m saying, but we shouldn’t think that now nobody knows what’s happening.
I agree with Chesney, and I might add that the United States has a robust press which readily reports anything “squirrely” going on with respect to U.S. military operations (and, as Chesney observes, there is a “covert action parallel” to all this).
Still, some commentators remain particularly concerned because the public won’t necessarily get information about combatant and civilian deaths via the Obama order. Luke Hartig, for example, contends that these statistics are valuable because:
The public could consider important information like what percentage of those killed in operations were civilians versus militants and could infer how often our strikes resulted in civilian deaths and how many of our strikes were truly focused on individuals or small groups of terrorists rather than large groupings. These were important metrics in assessing whether the U.S. government was living up to its stated principles of discrimination, precision, and restraint in using force outside of hot warzones.
In my view, the risk here is the public relying upon what I call “body counts” in isolation from all the other factors involved in the use of force in making assessments whether the United States is living up to the standards Hartig references, or assessing whether the United States is achieving the ends for which force is being used in the first place.
And to be sure, without considerably more information, a percentage comparison of a combatant body count with a civilian one doesn’t even tell you if operators complied with the law.
The proportionality rule in the law of war is something to be applied prospectively, notin hindsight. It speaks in terms of permitting strikes on otherwise lawful targets by a “reasonable” commander so long as the incidental civilian losses are not “excessive in relation to the concrete and direct military advantage anticipated” (emphasis added). Notably, the rule does not read “excessive” in relation to the “combatant” body count, and does not include anything about calculating body count “percentages”—though the media often acts as if it does.
Simply put, you can’t begin to determine the legal propriety of a strike absent a nuanced understanding of the precise nature of the “concrete and direct military advantage anticipated.” What’s more, the proportionality rule is based on the information reasonably available at the time in a given situation. Putting this all together is a complex task as amply illustrated by the 54-page, 141-footnote “Proportionality in the Conduct of Hostilities” Chatham House report about which Just Security co-sponsored a symposium.
In reality, the process is such that it’s quite possible to have a rather high “percentage” of civilian casualties relative to the number of combatants, yet not necessarily offend legal – or moral – norms regarding the use of force. For example, killing a single terrorist leader who could employ a weapon of mass destruction might warrant accepting a very large number of civilian casualties.
A factor further complicating the ability of the public to make a proper judgement would be the need for classified information. The Department of Defense’s Law of War Manual, completed during the Obama administration, points out:
The military advantage expected to be gained from an attack might not be readily apparent to the enemy or to outside observers because, for example, the expected military advantage might depend on the commander’s strategy or assessments of classified information. (emphasis added)
I would expect that much or all of the information about the expected “military advantage” of counterterrorism strikes “outside of areas of active hostilities” would be highly classified. Moreover, even if the body count information was “broken down by specific strikes,” it would not allow “the public to draw more informed conclusions about our operations” as a commentators like Hartig hope. Again, referring to the Defense Department’s Law of War Manual:
“Military advantage” refers to the advantage anticipated from an attack when considered as a whole, and not only from its isolated or particular parts. Similarly, “military advantage” is not restricted to immediate tactical gains, but may be assessed in the full context of the war strategy.
Thus, not only would the public very likely need to have access to classified information about the expected military advantage, they would also have to have internalized the “full context of the war strategy” to fairly judge the numbers and their meaning. Even for Congress, supported by staffs and access to experts, this is not easy; for the public without access to such resources, it’s practically impossible.
Wholly apart from legalities, we should not encourage the public to become enamored with “body counts” as a metric as history shows that can lead to misunderstandings in the minds of not just the public, but of decision-makers as well. The Defense Department made this point in its October 2018 NDAA report to Congress:
Although the number of enemy combatants killed in action is often assessed after combat, a running “body count” would not necessarily provide a meaningful measure of the military success of an operation and could even be misleading. For example, the use of such metrics in the Vietnam War has been heavily criticized. We have therefore provided other information that is intended to help give context, such as information regarding the objectives, scale, and effects of these operation [sic].
During the Vietnam War then-Secretary of Defense Robert McNamara was infatuated with body count metrics. Writing in the MIT Technology Review in 2013, Kenneth Cukier and Viktor Mayer-Schönberger say that McNamara “fetishized” numbers and saw them as a valid measure to show progress (or not) in the war effort. The military saw it differently as the authors relate:
In 1977, two years after the last helicopter lifted off the rooftop of the U.S. embassy in Saigon, a retired Army general, Douglas Kinnard, published a landmark survey called The War Managers that revealed the quagmire of quantification. A mere 2 percent of America’s generals considered the body count a valid way to measure progress. “A fake—totally worthless,” wrote one general in his comments.
Cukier and Mayer-Schönberger point out:
[B]ig data also exacerbates a very old problem: relying on the numbers when they are far more fallible than we think. Nothing underscores the consequences of data analysis gone awry more than the story of Robert McNamara.
I don’t think today’s military has any affection for body counts. Last August, when there was much discussion about a UN report indicating that there were 20,000-30,000 ISIS fighters still alive in Syria and Iraq, I wrote that “as a general rule ‘body counting’ (living or dead) is shunned by the U.S. military.” Such metrics, I contended, “harken back to bitter Vietnam war controversies” where body counts “proved to be a very inaccurate yardstick.” I added:
Unfortunately, even international lawyers will sometimes still think in similar terms. They tend to conceive of war in the way the oft-cited St Petersburg Declaration of 1868 does, that is, “that the only legitimate object which States should endeavour to accomplish during war is to weaken the military forces of the enemy; [and that] for this purpose it is sufficient to disable the greatest possible number of men…. “
A military conception of war doesn’t necessarily depend upon a body count of men actually “disabled.” Rather, as the eminent strategist Clausewitz puts, it, war “is an act of violence to compel our opponent to fulfil our will.” While killing some number of the enemy may certainly be necessary to “compel our opponent to fulfill our will,” it is not an end in itself as ‘body count’ statistics and their aficionados suggest.
Much more important, I argued, was data about the territory ISIS lost, and a Pentagon report said that “violence declined in all but three Iraqi provinces.” To me, those were “facts that are vastly more indicative of what the military wants to achieve, as opposed to simply killing off any remaining ISIS members.”
Body counts alone do not provide other vital information the public would need to make an appropriate assessment. Ryan Goodman’s 2017 post, “ISIS Tactic of ‘Baiting’ US-Coalition to Kill Civilians–and who bears responsibility,” indicates what casualty figures alone cannot provide, that is, the legal accountability for deaths, but perhaps even more importantly, the moral culpability. While enemy tactics designed to increase the risk to civilians such as the one Ryan describes – human shields being another – do not excuse U.S. forces from their responsibilities, enemy actions should be taken into account in the public’s assessment of U.S. operations. Raw numbers just can’t tell you that.
Finally, critics are rightly concerned about transparency, but publicly-released body counts are not necessarily the best or only way to achieve it. Here’s a sobering observation from the New York Times about strikes in Somalia:
Many of the recent airstrikes have targeted large groups of suspected fighters, killing more than 10 people in a single fierce swoop. Africa Command has disclosed strikes and estimated death tolls in a series of terse news releases, earning scant attention from Congress or the news media. (emphasis added)
This is an indication that the body count reports just do not do all the work that some think they do. Unquestionably, educating the citizenry about military operations is vitally important to any democracy, but the disclosure of raw body counts in isolation from the many other factors does not seem to be working and, as I say above, could likely cause more misunderstandings than coherent conclusions.
The increased information flow to Congress is laudable and significant, but we also need to find another way to do what I (and I think the critics as well) believe needs to be done: getting complete, decision-quality information to the public for their assessment of America’s efforts to battle the evil of international terrorism.
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