Given the moral principles and legal standards outlined above, it is important to explain why the United States seeks to uphold them and what steps it has taken to enable those planning its air strikes to implement them more successfully. This information, in conjunction with the moral and legal background just provided, will permit the analysis that follows in Part Five. While some information about organization and procedures in use in OEF has been described in media interviews and press conferences, the information presented here about targeting processes is also drawn from currently approved air operations planning doctrine and directives.

National Humanitarian Values of the United States

The humanitarian values that the United States holds as a nation are consistent with both the tenets of the Just War tradition and the law of war. The worth of human individuals is a pillar in the historical and present-day documents that guide the actions of the United States. The founding document of the United States, the Declaration of Independence, sets out life, liberty and the pursuit of happiness as inherent rights of all people.[81] The fundamental document of United States law, the Constitution, sets out to secure justice, liberty, and equality as natural moral rights for the individual.[82] The 2002 National Security Strategy of the United States of America calls for it to fight for human dignity, liberty, and justice as right and true principles for all people everywhere. In fact, the document states that the strategy it details must start from these core beliefs.[83] President Bush clearly linked the current war against terrorism to these values: “America will lead by defending liberty and justice because they are right and true and unchanging for all people everywhere. No nation owns these aspirations, and no nation is exempt from them… But America will always stand firm for the non-negotiable demands of human dignity….”[84] In December 2001, an anonymous senior defense official emphasized the bottom line of how these values apply to the accepted conduct of the United States military in war: “Our mores in America are, we don’t kill innocent people. We have extreme sensitivity to that.”[85]

With respect to the legal standards of international law, the United States Constitution gives treaties made under the government’s authority the force of domestic law.[86] The Department of Defense Law of War Program recognizes the force of applicable customary law as well.[87] Furthermore, the government’s policy, set forth by the Chairman of the Joint Chiefs of Staff and applicable to all armed forces personnel, is that they must comply with the law of war in every armed conflict, independent of the form of the hostilities.[88] The Law of War Program also dictates training in the law of war for every military member upon entry into the armed forces, annually, and at professional military schools. The Air Force Deputy Chief of Staff for Air and Space Operations summarized one benefit of this program in March 2002: “Continuous exposure breeds a culture sensitive to minimizing human suffering and loss.”[89] It is clear that in the eyes of the military the United States has an unequivocal commitment to upholding the law of war.

The Professional Military Ethic

Hartle has composed a list of eight principles that represent the standards of personal behavior that military members feel they ought to meet.[90] The Air Force,[91] Army,[92] and Navy and Marines[93] each have their own list of character values to which they expect their members to always hold. The values called out by the individual military services are all represented in letter or in spirit by Hartle’s list, which follows:

Professional soldiers

1. Accept service to country as their watchword and defense of the Constitution of the United States of America as their calling.

2. Place their duty first. They subordinate their personal interests to the requirements of their professional functions.

3. Conduct themselves at all times as persons of honor whose integrity, loyalty, and courage are exemplary. Such qualities are essential on the battlefield if a military organization is to function effectively.

4. Develop and maintain the highest possible level of professional knowledge and skill. To do less is to fail to meet their obligations to the country, the profession, and fellow soldiers.

5. Take full responsibility for the manner in which their orders are carried out.

6. Promote and safeguard, within the context of mission accomplishment, the welfare of their subordinates as persons, not merely as soldiers.

7. Conform strictly to the principle that subordinates the military to civilian authority. They do not involve themselves or their subordinates in domestic politics beyond the exercise of basic civil rights.

8. Adhere to the laws of war and the regulations of their service in performing their professional functions.[94]                    

What is perhaps most noticeable about these principles is that they do not overtly mention either the humanitarian or the military objectives laid out in the previous discussion of decisions of proportionality. While the elements of the military ethic may be assumed to be primarily applicable to the military’s task of application of force, they also apply to the task of separating innocent civilians from harm, as specifically directed by the eighth principle pointing to the international law of war. The military ethic will be further discussed in Part Seven.

The Targeting Process

Every person who participates in the process of planning air strike targets is clearly charged with understanding and upholding the applicable law of war.[95] This includes all military members from the most senior commander to the lowest ranking intelligence imagery analyst. The multidisciplinary process that they follow is known as the “targeting cycle.” It is focused by the objectives passed through the military commander and is designed to achieve specific effects with minimum risk, time, and resources.[96] The team that implements the process consists of members from all the military services, representing specialties in command and control, intelligence, weapons, law, strategy, and tactics—all organized under an air-component commander who reports directly to the commanding general. They all “run the cycle” for targets that are planned well in advance and for those that appear unexpectedly, requiring commanders to strike quickly. In the latter case, the cycle can be highly modified depending on the level of risk that the commander is willing to accept.[97] The following sections will highlight key portions and aspects of the process: objectives and guidance, the role of legal advisors, the targeting process, and determination of potential collateral effects.

Objectives and Guidance

The targeting cycle begins with the commander’s objectives and guidance, which are based solidly on the broader guidance provided by his or her civilian leaders, the President and the Secretary of Defense. This ensures from the outset the close coupling of military and political goals. One form of guidance is known as the “rules of engagement.” For each conflict, the President and the Secretary of Defense approve rules of engagement to guide applications of force by the military.[98] The purpose of these self-imposed rules is to define when, where, why, how, and against whom the military may use force and to ensure that those acts are, at all times, in pursuit of national policies and objectives. Rules of engagement may restrict certain targets, particular areas, or the use of specific weapons in order to gain or maintain public support, avoid escalating hostilities, or accomplish other objectives.[99] These rules may also reemphasize portions of the law of war, as the summary statements from the rule set provided to United States soldiers in the 1991 Gulf War make clear: “Fight only combatants—Attack only military targets—Spare civilian persons and objects—Restrict destruction to what your mission requires.”[100] Rules of engagement are normally considered classified information until sometime after a conflict has ended. For this reason, the United States Central Command has declined opportunities to speak publicly about the rules of engagement that apply in Afghanistan.[101] However, it has been reported in the media that one rule in OEF restricts forces from damaging bridges or road infrastructure in order to facilitate reconstruction efforts afterwards and maintain Afghan support for the war.[102]

The scope and importance of the role played by rules of engagement in air warfare has grown significantly in recent years. A senior legal counsel for the Chairman of the Joint Chiefs of Staff estimates that nine out of ten restrictions on today’s battlefield are political versus legal.[103] This means that the number and complexity of such restrictions can become unwieldy, difficult to track, and tricky to distribute when they change. Military manuals offer suggestions to help address these problems, encouraging close monitoring of dissemination, quality control to keep them as simple, transparent, and as seamless as possible, and methods for training staffs and aircrews.[104]

Role of Legal Advisors

The Department of Defense mandates that legal advisors are to be immediately available at every level of command in order to ensure compliance with the law of war.[105] The Air Force further directs that legal advisors be involved in every division and team implementing the targeting cycle and that they also advise on compliance with rules of engagement.[106] However, the legal advisors’ primary task is to provide counsel on the compliance of operations planning and execution with the large and complex body of international law.[107] Despite criticisms that it was the legal advisors making the “strike/no-strike” decision in certain cases in Afghanistan,[108] the military commanders retain this responsibility, although they may rely heavily on the counsel of their legal advisors in doing so.[109]

Indeed, it has been the experience of the Air Force legal community that commanders will initially be too cautious and pass up the opportunity for some attacks because of their lack of familiarity with the international law of war and its content on the legitimacy of targets.[110] The Air Force defines a proactive role for legal advisors in its instructions for the operation of the Combined Air Operations Center: “to employ legal expertise and resources to control and exploit the legal environment across the full spectrum of operational missions.”[111] While taking their role in minimizing collateral casualties and damage very seriously, the Air Force legal community believes that overly restrictive constraints on targeting will end up prolonging suffering by extending the war and delaying victory.[112] Additionally, a legal advisor cannot always definitively state whether a target, or the means of attacking it, is legal under international law. This may leave military decision makers in what Schmitt calls the “warfighter’s dilemma.”[113] This quandary arises from the vagueness of the law and the infinite possible variations of circumstances, combined with the inability of the decision makers’ staffs to make reliable predictions on the exact outcomes of air strikes.

Targeting Process

Among the numerous activities that are part of the targeting cycle, of particular importance to this discussion are the approaches the planning staffs and decision makers use to research the target, determine the proper weapon with which to attack it, and assess the collateral effects that would likely occur in such an attack. The full resources of the United States intelligence community are available to help planners pull together as much information as possible to identify and characterize each target. Planners are encouraged by Joint doctrine to go outside their headquarters to access a broad spectrum of expertise and data to understand the target, its environs, and how it supports the adversary’s military operations.[114] During operations in Afghanistan, daily conferences using secure video links or computer networks have brought together intelligence experts from around the world to review target information.[115] Integral to this process of identifying targets is the certification that they are indeed legitimate targets under international law and the current rules of engagement.

Central to this process is also a clear understanding of the effects desired from striking a particular target or target set. “Effects-based targeting” is the name used by the United States military to describe its focus on understanding what specific results are desired from an attack. These results can range from complete destruction of the target to denial of access by the enemy for a limited time period. This analysis of effects is also required to assess delayed or displaced indirect consequences, to include unintended effects on civilian persons or objects.[116] With these desired and undesired effects in mind, experts, called “weaponeers” by the Air Force, next begin work to find the optimal match between the target and weapon. United States Central Command and the Department of Defense recently outlined in a press conference some of the numerous parameters they can vary to optimize this match.[117] Weaponeers consider early in this process whether they may be able to propose a non-lethal or non-kinetic means to achieve the required effect at the target. If using an explosive weapon, they could alter the azimuth from which the weapon approaches the target or the aim points on the target to direct fragments in, or away from, a particular direction. Similarly, less powerful bombs or fuses that delay detonation until after impact can help to limit the lethal radius of an attack. Carefully selecting the time of the attack can greatly impinge on both the desired effects and the undesired consequences of an attack. Finally, precision-guided weapons using laser designation or satellite signals offer greatly improved accuracy over the unguided, gravity-drop bombs.

The planning of a notional strike against military artillery pieces parked in an urban schoolyard brings together many of these elements. If the artillery was a sufficiently important target, weaponeers might choose one or more smaller laser-guided bombs over the larger satellite-guided JDAM in order to limit the radius of the blast. They could plan the strike to occur at night when students and teachers would not occupy the school and fewer passersby would be exposed. The planners might also select the direction of approach for the attacking aircraft and bombs so that weapons straying from their intended path would be less likely to strike homes in the area. Together, these specifications could greatly reduce the risk to the civilians in the target area while offering an excellent chance of achieving the desired effect of destroying the military targets.

Determination of Potential Collateral Effects

Running parallel to these target development and weaponeering tasks is a multiple-tier joint methodology for accessing the likelihood and amount of collateral casualties and damage. This approach was developed by the Joint Staff beginning in 1998[118] and used extensively in OEF.[119] An iterative process, the tier assessment consists of four steps with a rating of high or low risk of collateral casualties and damage assigned at each step. The assessment begins with all the information gathered about the target and draws a ring around the target that would contain the effects of most conventional weapons in the United States inventory. If there are no collateral casualty or damage concerns, the target receives a rating of “low.” However, if there are issues raised, then the target proceeds to the next assessment tier. Here, weaponeers vary parameters like those discussed above to seek to avoid or limit the collateral effects. If they are unsuccessful, the target is modeled using a rapid, two-dimensional tool nicknamed “Bug Splat” after the pattern it produces, which resembles a squashed insect. This model, which shows the likely “footprint” of the weapon effects in the target area, can be run quickly, in only five to ten minutes.[120] If this tool does not clear up any remaining collateral casualty or damage concerns, then a higher fidelity, three-dimensional model is used. It takes into account the physical characteristics of the structures involved[121] and even the potential range of effects from windows shattering due to the attack.[122] However, what this model offers in detail it requires in time—taking a minimum of four hours to return results, rendering it impractical for immediate decisions.[123] If the collateral effects issues still remain after exhausting the resources of these assessments, the target is rated “high” and passed to the Secretary of Defense and President for a decision.

One parameter that has not been openly discussed by the military is the threshold of collateral casualty and damage issues that differentiates between ratings of “low” or “high.” A February 2003 media interview of Air Force officials provides some insight into the fact that a “low” rating does not equate to the absence of these collateral effects. In that interview, one official explained that in the event of war in Iraq the President would decide about striking any targets in which the estimates of civilian deaths exceeded “several dozen.”[124] This threshold would likely vary depending on the conflict, the target, and the rules of engagement. The likelihood that such a limit exists is an issue that will be further discussed in Part Six.

The tier assessments are mathematical predictions and are intended to serve only as aids to commanders and the staff advising them.[125] Yet, the tier assessment is a new, powerful tool that augments the target development and weaponeering skills so critical to the targeting process. Altogether, the military personnel, the process, and the technology have produced some tremendous successes in precision air strikes in Afghanistan. One example, briefed at a Pentagon press conference, occurred in downtown Kabul when a bomb was dropped on a building where an al-Qaeda meeting was taking place. The location of the meeting was destroyed, but the adjacent buildings were left undamaged.[126] Together, these tools, advisors, and ideals are additional inputs available to military decision makers faced with difficult decisions concerning potential collateral casualties and damage.

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