Speaking of “near certainty”

Alan Dershowitz’s Wall Street Journal column “The education of a wartime president” is behind the Journal’s subscription paywall but is easily accessible via Google. I learned something from it and urge readers to check it out. It is an important column, deserving of extended discussion in a couple of respects. I want to take it up by annotating it with relevant links.

Professor Dershowitz introduces his subject with an Obama administration announcement of which I was unaware:

Last year the Obama administration issued, with considerable fanfare, a new military policy designed to reduce civilian casualties when U.S. forces are attacking enemy targets. This policy required “near certainty” that there will be no civilian casualties before an air attack is permitted.

Is this true? The column lacks any links. Looking around online, I find Obama’s statement of the policy in his speech at the National Defense University on May 23, 2013 (White House text here, related White House fact sheet here.). Obama said:

[A]s our fight enters a new phase, America’s legitimate claim of self-defense cannot be the end of the discussion. To say a military tactic is legal, or even effective, is not to say it is wise or moral in every instance. For the same human progress that gives us the technology to strike half a world away also demands the discipline to constrain that power — or risk abusing it. And that’s why, over the last four years, my administration has worked vigorously to establish a framework that governs our use of force against terrorists –- insisting upon clear guidelines, oversight and accountability that is now codified in Presidential Policy Guidance that I signed yesterday.

In the Afghan war theater, we must — and will — continue to support our troops until the transition is complete at the end of 2014. And that means we will continue to take strikes against high value al Qaeda targets, but also against forces that are massing to support attacks on coalition forces. But by the end of 2014, we will no longer have the same need for force protection, and the progress we’ve made against core al Qaeda will reduce the need for unmanned strikes.

Beyond the Afghan theater, we only target al Qaeda and its associated forces. And even then, the use of drones is heavily constrained. America does not take strikes when we have the ability to capture individual terrorists; our preference is always to detain, interrogate, and prosecute. America cannot take strikes wherever we choose; our actions are bound by consultations with partners, and respect for state sovereignty.

America does not take strikes to punish individuals; we act against terrorists who pose a continuing and imminent threat to the American people, and when there are no other governments capable of effectively addressing the threat. And before any strike is taken, there must be near-certainty that no civilians will be killed or injured — the highest standard we can set.

The related White House fact sheet links to Obama’s May 22, 2013 Presidential Policy Guidance, cited by Obama in the speech. We (I) have become so desensitized to the inanities promulgated by the Obama administration in the field of national security (see, e.g., the rest of the National Defense University speech) that this one slipped by me.

Professor Dershowitz turns to Israel’s recent hostilities with Hamas:

When Israel acted in self-defense this summer against Hamas rocket and tunnel attacks, the Obama administration criticized the Israeli army for “not doing enough” to reduce civilian casualties. When pressed about what more Israel could do—especially when Hamas fired its rockets and dug its terror tunnels in densely populated areas, deliberately using humans as shields—the Obama administration declined to provide specifics.

The Obama administration has exhibited hostility to Israel in ways large and small. While Israel sought to fight off the incessant rockets Hamas aimed at its people, the Obama administration harassed it mercilessly. When Israel struck a UN school used by Hamas, for example, the administration really poured it on. For a reminder, see the Hill’s “White House criticizes Israel for ‘indefensible’ deaths at UN school.” Obama’s hostility to Israel represents one aspect of the administration’s efforts to undermine our friends and prop up our enemies.

Professor Dershowitz continues:

Now the Obama administration has exempted itself from its own “near certainty” standard in its attacks against Islamic State in Iraq and Syria. In a statement on Sept. 30 responding to questions by Michael Isikoff at Yahoo News, the administration said that in fighting Islamic State, also known as ISIS, the U.S. military can no longer comply with Mr. Obama’s vow last year to observe “the highest standard we can meet.”

The statement came after a Tomahawk missile last week struck the village Kafr Daryan in Syria, reportedly killing and injuring numerous civilians including children and women. The missile was directed at al Qaeda terrorists that the White House calls the Khorasan Group, but apparently the Tomahawk hit a home for displaced civilians. The Pentagon says it is investigating the incident, but YouTube video of injured children and the appearance by angry Free Syria Army rebel commanders at a congressional hearing about the attack—an attack that prompted protests in several Syrian villages—left little doubt about what happened.

If this sounds familiar, it is because in every attack on terrorists who operate from civilian areas, there will be civilian casualties. This is especially so when terrorists employ a policy of hiding behind civilian human shields in order to confront their enemies with a terrible choice: not attack a legitimate military target; or attack it and likely cause civilian casualties, which the terrorists can then exploit in the war of public opinion.

Isikoff’s September 30 Yahoo News article is posted here. Ken Dilanian picked it up for the AP on October 1 in “Obama administration eases policy on preventing civilian casualties in Iraq, Syria.” Here is how Isikoff reported the evolution of the administration’s policy:

A White House statement to Yahoo News confirming the looser policy came in response to questions about reports that as many as a dozen civilians, including women and young children, were killed when a Tomahawk missile struck the village of Kafr Daryan in Syria’s Idlib province on the morning of Sept. 23.

The village has been described by Syrian rebel commanders as a reported stronghold of the al-Qaida-linked Nusra Front where U.S officials believed members of the so-called Khorasan group were plotting attacks against international aircraft.

But at a briefing for members and staffers of the House Foreign Affairs Committee late last week, Syrian rebel commanders described women and children being hauled from the rubble after an errant cruise missile destroyed a home for displaced civilians. Images of badly injured children also appeared on YouTube, helping to fuel anti-U.S. protests in a number of Syrian villages last week.

“They were carrying bodies out of the rubble….I saw seven or eight ambulances coming out of there,” said Abu Abdo Salabman, a political member of one of the Free Syria Army factions, who attended the briefing for Foreign Affairs Committee members and staff. “We believe this was a big mistake.”

Joseph Heller, call your office.

But what was the administration saying earlier last month, before the change in policy, when Afghan officials decried the death of 11 civilians in one of our air strikes?

Professor Dershowitz returns to Hamas’s use of civilians as shields for its martial activities (“this approach”):

Hamas has employed this approach effectively in its periodic wars against Israel. Hamas fighters fire rockets at Israeli civilian targets from densely populated areas near United Nations facilities, mosques, hospitals and private homes. These areas, rather than the less densely populated open areas between the cities of Gaza, are intentionally selected. Hamas urges civilians to stand on the roofs of buildings that are used to store rockets and that serve as command-and-control shelters.

The fighters dare Israel to attack these shielded military targets. Israel responds by issuing warnings—by leaflets, telephone and noise bombs—to the civilians, urging them to leave. When civilians try to leave, Hamas fighters sometimes force them back at gunpoint. The fighters launch their missiles using a time delay, giving themselves the opportunity to hide in tunnels where only they are allowed to seek shelter; civilians are left exposed to Israel’s efforts to destroy the rockets.

When Israel does attack military targets such as a rocket launcher or a tunnel entrance, and kills or injures civilians, Hamas operatives stand ready to exploit the dead for the international media, who are ever ready to show the victims without mentioning that they died because Hamas was using them as human shields.

This describes Israel’s artillery assault on the UN school that Obama’s minions attacked as “indefensible” in the story linked above.

Professor Dershowitz then compares and contrasts our own current struggle against ISIS with Israel’s against Hamas:

Now ISIS and other jihadists in Iraq and Syria are beginning to emulate the Hamas strategy, embedding fighters in towns and villages, thus making military strikes difficult without risking civilian casualties. That is why the Obama administration has exempted itself from its theoretical “near certainty” policy, which has proved to be unworkable and unrealistic in actual battle conditions involving human shields and enemy fighters embedded in densely populated areas.

For the U.S., the fight against ISIS is a war of choice. Islamic State fighters pose no immediate and direct threat to the American homeland. For Israel, by contrast, Hamas poses an immediate and direct threat. Both the U.S. and Israel seek to minimize civilian casualties. Neither can do so under an unrealistic principle of “near certainty.”

Israel has come closer to this high theoretical standard than have the United States and its various coalition partners—for instance, only Israel would employ small rooftop “knock-knock” explosives to warn civilians of a coming missile strike. Yet Israel is the only nation that is routinely condemned by the United Nations, the international community, the media, the academy and even the U.S. for “not doing enough,” in Mr. Obama’s words, to reduce civilian casualties. As the president is learning, war is hell. The possibility of waging it with “near certainty” of anything is a chimera.

Indeed. You’d have to be a fool to believe otherwise. It makes you wonder what was really going on with Obama’s relentless attacks on Israel during the hostilities with Hamas. The condemnation of Israel emanates from a distasteful double standard, as Dershowitz suggests in his conclusion:

There must be a single universal standard for judging nations that are fighting the kind of terrorism represented by ISIS and Hamas. The war against ISIS provides an appropriate occasion for the international community to agree on a set of standards that can be applied across the board. These standards must be both moral and realistic, capable of being applied equally to the U.S., to Israel and to all nations committed both to the rule of law and to the obligation to protect citizens from terrorist attacks.

The decision of the Obama administration to abandon its unrealistic “highest standard” pledge indicates the urgent need to revisit anachronistic rules with which no nation can actually comply, but against which only one nation—Israel—is repeatedly judged.

Exactly.

But this leaves us with the question what the Obama administration’s harassment of Israel as it sought to suppress Hamas’s rocket fire was really all about. The question remains open.

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