Muhammad al-Tuhayf was relaxing at his house late in the afternoon on Dec. 12, 2013, when his iPhone rang. A boxy, tired-looking Yemeni shaykh with large hands and a slow voice, Tuhayf heard the news: A few miles from where he was sitting, along a rutted-out dirt track that snaked through the mountains and wadis of central Yemen, U.S. drones had fired four missiles at a convoy of vehicles. Drone strikes were nothing new in Yemen — there had been one four days earlier, another one a couple weeks before that, and a burst of eight strikes in 12 days in late July and August that had set the country on edge. But this one was different: This time the Americans had hit a wedding party. And now the government needed Tuhayf’s help.
The corpses had already started to arrive in the provincial capital of Radaa, and by the next morning angry tribesmen were lining the dead up in the street. Laid out side by side on bright blue tarps and wrapped in cheap blankets, what was left of the men looked distorted by death. Heads were thrown back at awkward angles, splattered with blood that had caked and dried in the hours since the strike. Faces that had been whole were now in pieces, missing chunks of skin and bone, and off to one side, as if he didn’t quite belong, lay a bearded man with no visible wounds.
Clustered around them in a sweaty, jostling circle, dozens of men bumped up against one another as they struggled for position and a peek at the remains. Above the crowd, swaying out over the row of bodies as he hung onto what appeared to be the back of a truck with one hand, a leathery old Yemeni screamed into the crowd. “This is a massacre,” he shouted, his arm slicing through the air. “They were a wedding party.” Dressed in a gray jacket and a dusty beige robe with prayer beads draped over his dagger, the man was shaking with fury as his voice faltered under the strain. “An American drone killed them,” he croaked with another wild gesture from his one free hand. “Look at them.”
A few miles outside of town, Tuhayf already knew what he had to do. This had happened in his backyard; he was one of the shaykhs on the ground. Only three hours south of the capital, the central government held little sway in Radaa. Like a rural sheriff in a disaster zone, he was a local authority, someone who was known and respected. And on Dec. 12, that meant acting as a first responder. Tuhayf needed to assess the situation and deal with the fallout. Every few minutes his phone went off again, the marimba ringtone sounding with yet another update. Already he was hearing reports that angry tribesmen had cut the road north. Frightened municipal employees, worried that they might be targeted, kept calling, begging for his help. So did the governor, who was three hours away at his compound in Sanaa.
It didn’t take Tuhayf long to reach a conclusion. The Americans had made a mess, and to clean it up he was going to need money and guns.
This is the other side of America’s drone program: the part that comes after the missiles fly and the cars explode, when the smoke clears and the bodies are sorted. Because it is here, at desert strike sites across the Middle East, where unsettling questions emerge about culpability and responsibility — about the value of a human life and assessing the true costs of a surgical war.
For much of the past century, the United States has gone to war with lawyers, men and women who follow the fighting, adjudicating claims of civilian casualties and dispensing cash for errors. They write reports and interview survivors. But what happens when there are no boots on the ground? When the lawyers are thousands of miles away and dependent on aerial footage that is as ambiguous as it is inconclusive? How do you determine innocence or guilt from a pre-strike video? When everyone has beards and guns, like they do in rural Yemen, can you tell the good guys from the bad? Is it even possible? And when the U.S. gets it wrong, when it kills the wrong man: What happens then? Who is accountable when a drone does the killing?
On Dec. 12, 2013, a U.S. drone carried out a strike in Yemen. Little of what happened that day is known with any degree of certainty. Most of the facts are adrift somewhere in the shadowy sea of a classified world. Identities shift and change depending on the vantage point, and what appears true thousands of feet up in the air often looks different on the ground. Following two reviews, the U.S. claims it was a clean strike and that all the dead were militants. Yemen disagrees, calling the attack a tragic mistake that killed civilians. Two countries, two conclusions. But one of them paid the families of the dead men a lot of money.
Yemen is a U.S. ally that says it approves every drone strike, but it is also so strapped for cash that the government has implemented numerous austerity measures. Either it handed out the money and guns to cover for its partner, or the U.S. privately paid money to the families of men it publicly describes as al-Qaeda while simultaneously promoting the man responsible for the strike. In truth, only three things are known for certain: Twelve men are dead, $800,000 in cash was delivered, and the dead can’t be both guilty and innocent.
Muhammad al-Tuhayf is convinced the men were civilians. The U.S. was after Shawqi al-Badani, a curly-haired young Yemeni with a sizable mole on the left side of his chin, whom it blamed for an aborted attack against the embassy in Sanaa earlier that summer. But Tuhayf didn’t hear his name that night. “We checked their names against the [Ministry of the Interior’s] wanted list,” he told me months after the strike. Mimicking the process for me in the hotel where we met, he went down the list: “Fulan, fulan, fulan, fulan, fulan, fulan, fulan,” he said in rapid succession, using the Arabic word for “so-and-so.” The men the Americans killed were nobodies, poor tribesmen. Badani was missing. “They were all innocent,” Tuhayf said. The more time he spent on the phone on Dec. 12, the more certain he was that the U.S. had got it wrong.
By late evening the details of the attack were already clear. Earlier that day, two tribes met for lunch. Their villages were sparse collections of rough stone huts without electricity or running water, and their men worked whatever jobs they could find, usually something close to home like tending sheep or growing crops. But each had their traditions, and the lunch was one of those. The al-Taysi tribe was the host, welcoming its neighbors, the al-Amri tribe, who had come to collect a local girl, named Wardah al-Taysi, for marriage. All the details — the marriage contract and the bride price — had already been worked out. The lunch was simply a send-off, a final meal for the bride before joining her husband. After the food was cleared away, an 11-car convoy pulled out of the village.
Only a few female bridal attendants made the trip, everyone else was male; each of the tribes provided armed escorts. That was part of the deal. While she was in transit, the bride belonged to both tribes and each contributed to her security.
For much of the drive, the men could hear the faint metallic thumping that indicated a drone overhead. Like many in rural Yemen, they had slowly grown used to the sound, and did nothing to change their course. Not that they really had a choice. They were on a single-lane dirt track that dipped and doubled back as it wound its way through the wadis and mountains of the Yemeni highlands. But the buzzing never stopped. All afternoon it stayed with the convoy, tracking and waiting. Around 4:30 p.m., just as the vehicles came out of a narrow pass and into a flat clearing, something in the sound shifted.
The first hellfire hit a Toyota Hilux, which had been evacuated seconds earlier, blasting through the roof on the passenger side. Three more missiles followed in quick succession, smashing into the dirt between the vehicles and spraying shrapnel in a wide circle that sliced through metal and shattered windshields. And then, as quickly as it began, it was over. There were no more missiles, just the burning husk of a Toyota and the screams of those still left.
By waiting until the vehicles were bunched together in a group instead of firing while the convoy was strung out, the drone operator had ensured a high casualty count. Twelve men died in the strike: seven from the al-Amri tribe and five from the al-Taysi tribe. Six more — according to a later report by Human Rights Watch — were seriously injured. The bride escaped with a scratch under her eye.
Tuhayf listened to the casualty reports that first night, double-checking what he was hearing on the phone with calls to the local hospital. “These were tribesmen,” he told me later. But even as he was tapping the numbers on his phone, he was already forming a plan. Along with two other shaykhs he drove out to talk to the tribes the next morning. Wary of wading into the mix of armed and angry men, who were still blocking the road, Tuhayf asked to meet tribal representatives at a security checkpoint a mile away. This was how things worked in Yemen. The meeting was one of the many off-ramps on the road to violence that the tribes had designed over the centuries as a way of keeping bloodshed to a minimum.
For much of the morning Tuhayf just listened as the shaykhs vented their anger. They wanted to hit back, to hurt as they had been hurt, but with no American presence on the ground they focused their rage on the cluster of municipal buildings in Radaa, the closest thing to a local stand-in they had for the drones. Like any good diplomat, Tuhayf waited for the other side to punch itself out. Then he countered: He wanted justice as well, but what he needed most on the morning of Dec. 13 was time.
Tuhayf promised the shaykhs assembled at the security checkpoint that the government would redress their grievances, but right now he needed them to stand down. As a deposit on his word, Tuhayf handed over the keys to his own Toyota Hilux, the same model as the one the U.S. destroyed in the strike, while the other two shaykhs with him put up a rifle and a dagger and belt. These were major outlays in a country where all tribesmen wore the dagger known as a jambiyya. To go without one was a serious sacrifice. Shaykhs were only as good as their word. By handing over the keys and sidearms, Tuhayf and the rest of the shaykhs had just staked their standing on their ability to make this right. Within hours they were on their way north to Sanaa to help collect the money and guns.
More than 7,000 miles away, at Joint Special Operations Command Headquarters in Fayetteville, N.C., the reports of civilian casualties didn’t make any sense. The strike had looked good. It was a convoy of armed men, and all the dead were military aged males.
The silent professionals, as JSOC liked to call themselves, did what the regular army couldn’t. They were the elite, units like Delta Force and Navy SEALs. They got the guys no one else could get. JSOC had been around since 1980, originally formed to conduct Operation Eagle Claw, the hurried and failed attempt to rescue U.S. hostages in Iran. But it had come into its own only in the years after Sept. 11. In 2006, under the direction of then-Cmdr. Stanley McChrystal, it was responsible for the strike that killed Abu Musab al-Zarqawi. Five years later, JSOC carried out the raid that killed Osama bin Laden.
But not everything always went their way. In the years after Sept. 11, JSOC lost out to the CIA for control of the drone program in Pakistan. The special operations forces were stuck watching spies try to run a war. It was a frustrating process for them, and when the Obama administration opened a covert bombing campaign in Yemen in late 2009, JSOC lobbied hard for the chance to take the lead. The CIA might have Pakistan, but Yemen was theirs.
Things didn’t start off as planned. Shortly before Christmas 2009, Adm. William McRaven thought he had a lock on three targets inside an al-Qaeda training camp in southern Yemen. Linking up to the White House via video conference, the pencil-thin JSOC commander made his case to administration lawyers. Hours later, with permission in hand, the barrage began. Navy ships off the coast of Yemen fired several cruise missiles equipped with cluster bombs at McRaven’s targets. The video monitors of what the Pentagon called “Kill TV” flashed white with each strike as the scurrying figures on the screen went still.
Only later, after local reporters started to post videos from the scene, did JSOC realize it had actually hit a Bedouin village and not a terrorist training camp. At least 41 of the 55 dead were civilians.
A few months later, in May 2010, more bad intelligence led to another mistake. This time JSOC killed Jabir al-Shabwani, a deputy governor in central Yemen. The strike, which was based on intelligence provided by the Yemeni government, was supposed to target an al-Qaeda meeting. But the U.S. had no way to independently verify the information or determine the identities of the men it was about to kill. Shabwani, it turned out, had been meeting with al-Qaeda fighters in an effort to convince them to surrender.
At the time, some members of the Obama administration thought JSOC had been played. Then-Yemeni President Ali Abdullah Salih, they believed, had used the U.S. to eliminate a political rival. But others placed the blame squarely on McRaven’s unit. “JSOC, frankly, wasn’t as up to speed as they should have been,” one former intelligence official told the Wall Street Journal months after the strike. Whatever the case, the U.S. lacked the assets on the ground to figure out exactly what had gone wrong.
And then it happened again. In August 2012, a U.S. drone hit a meeting in eastern Yemen, killing a local cleric who had been speaking out from the pulpit against al-Qaeda. It was the same story the following month when a JSOC drone struck a pickup outside of Radaa, killing 11 civilians. Things got so bad during the hunt for Anwar al-Awlaki, the American-born cleric, that Obama asked the CIA to step in. The agency built its own drone base in Saudi Arabia and put together its own kill list. For the next few months, JSOC and the CIA competed to see who could get to Awlaki first. The CIA won, killing the American in September 2011.
As JSOC’s errors continued to mount in Yemen, so too did al-Qaeda’s numbers. When the U.S. started bombing Yemen in earnest with the December 2009 strike, al-Qaeda in the Arabian Peninsula (AQAP) stood at roughly 200–300 fighters. Over the next four years, according to the New America Foundation, the U.S. killed somewhere between 713 and 923 people in Yemen — more than three times the number of fighters al-Qaeda had when the U.S. started bombing. And yet the group kept growing. By December 2013, al-Qaeda’s franchise in Yemen had more than tripled, and the State Department estimated that the group now had “approximately 1,000” fighters in its ranks. But a recent report in The Intercept said the U.S. had tied 8,211 people to AQAP — 27 times the 300 members that existed in late 2009. Instead of disappearing, al-Qaeda was expanding as the U.S. confused killing with winning.
Lt. Gen. Joseph Votel, who had replaced McRaven as the head of JSOC shortly after the bin Laden raid, knew exactly what was at stake. Seven months earlier, on May 23, 2013, President Obama had laid out sweeping new guidelines for the use of drones that would take them out of the hands of the CIA and give JSOC control of the controversial program. The CIA had been expedient when he wanted to kill Awlaki, but now the president wanted to correct what he saw as a decade-long drift and streamline U.S. operations. The CIA would collect and analyze the intelligence, and JSOC would execute the strikes.
In his speech at the National Defense University that Thursday, Obama had publicly wrestled with the errors and mistakes his administration had made over the past four years. Standing on a raised platform in front of a row of American flags, he told the crowd that before any strike takes place, “there must be near-certainty that no civilians will be killed or injured.” That, the president said, moving his hand up toward his shoulder like a bar, is “the highest standard we can set.”
Still, he went on, “It is a hard fact that U.S. strikes have resulted in civilian casualties.” In a slow, deliberate cadence, the president continued: “For me, and those in my chain of command, those deaths will haunt us as long as we live.”
Not everyone thought the transition was a good idea. Sen. Dianne Feinstein, the 80-year-old chairwoman of the Senate Select Committee on Intelligence, worried that JSOC wasn’t careful enough. A couple of months before Obama’s speech, she told a radio reporter that she had watched the CIA “exercise patience and discretion specifically to prevent collateral damage. The military program has not done that nearly as well. I think that’s fact. I think we even hit our own base once.”
Feinstein’s comments were slightly disingenuous. Without a seat on the Armed Services Committee, she didn’t have oversight responsibilities for JSOC or access to its classified after-action reports, but the perception on Capitol Hill was growing that the military made too many mistakes and killed too many civilians. Votel knew all about the concerns, and apparent errors like the strike in Yemen made the problem that much worse. An athletic-looking 55-year-old with rusty brown hair, Votel dug in to defend the strike dismissing reports of a wedding party as false propaganda put out by al-Qaeda. He had seen the video: dozens of armed men in a long convoy. The strike was clean.
On the ground in Yemen, things looked decidedly different. Muhammad al-Tuhayf knew the tribes and their histories. Driving north to Sanaa on the evening of Dec. 13, he contemplated what came next. A truck, a gun, and a dagger weren’t going to hold the tribes for long.
“The attack was American but the victims were Yemeni. And reaction to the attack wouldn’t hurt the Americans, it would hurt us,” Tuhayf told me. “It would be fitna,” he said, using a loaded Arabic term for chaos and disorder. The Yemeni government was stuck. Either it had to pay for a mistake it didn’t commit with money it didn’t have or deal with the fallout from heavily armed tribes.
By the time Tuhayf and the rest of the shaykhs reached Sanaa that night it was already dark and the governor wasn’t home. The guards clustered in an old shipping container outside the compound took their names, but they wouldn’t let them inside.
Finally, around midnight, the governor, al-Dhahri al-Shadadi, called him back. A short, overweight man in his fifties, Shadadi had spent much of the night driving around Sanaa collecting the money and guns. Yemen was broke, and Shadadi, who still held a rank in the Yemeni military, had to scrounge to come up with the cash, which his secretary bundled together in 1,000-riyal notes and packed in bags. But the guns were an even bigger challenge. Less than two years after the uprising and the street fighting that went with it, no one wanted to part with their Kalashnikovs. Leaning on contacts at the Ministry of Defense, Shadadai eventually amassed several dozen rifles from various storage depots around the capital.
Down south in Radaa, the bodies were still out in the street, a public spectacle that was meant to shame the government. Shadadi knew exactly what they were doing. He was going to have to pay twice: first, the standard tribal payment for the lives of those killed or injured, and then something called hashm al-dam, or blood shame, for the wrongful deaths of the civilians. On the phone he told Tuhayf everything was set. They would leave the next morning.
Shortly after prayers, a long line of SUVs and pickups left the governor’s compound in Sanaa. No one knew quite what to expect. Reports from Radaa had the tribes blocking the road again. Shadadi picked up a military escort along the way, but he wanted to avoid antagonizing the tribes any further. Pulling up well short of the roadblock, he arranged for a quick meeting with tribal leaders. Then everyone reconvened at the municipal meeting hall. Ditching his military uniform for the traditional tribal outfit of a blue blazer over a long white robe with a red-checked shawl draped over his shoulders, Shadadi opened with an apology. “It was a mistake,” he said of the drone strike. “Something went wrong with the intelligence.”
The room was crowded and tense with families of the victims and several tribal representatives. Everyone wanted answers, and Shadadi could hear sobs and whimpers as he spoke. Sitting beside him, dressed in combat fatigues, was a military commander, but this was Shadadi’s meeting. He spoke for the government. Muhammad al-Tuhayf and the rest of the local shaykhs were already fading into the crowd. They had done their job. The money and guns had made it to Radaa. Now it was up to the governor.
As the day wore on, Shadadi and the rest of the top officials moved into a smaller side room with a handful of representatives from the al-Taysi and al-Amri tribes to work out the details of a deal. Essentially, they were trying to figure out the value of a man’s life. How much money was each dead man worth? Yemen’s tribal code gave them a starting point: nearly $26,000 per person with another $9,500 for each wounded man. But because of the nature of the deaths — innocent men killed by a drone — the tribes were asking for 11 times that amount. The 10+1 calculation was a common configuration in Yemeni tribal law, meant to signify guilt and shame while acting as a sort of wrongful death premium. It was the same thing with the guns. The tribes wanted 101 rifles: 100 as compensation and one for banduq al-‘ar, the symbolic “rifle of shame.”
Shadadi listened to the bearded tribal elders respectfully, but he wasn’t about to admit guilt. Shame was a powerful concept in Yemeni society, and the government was weak enough without declaring itself complicit in the deaths of a dozen civilians. Like the lawyers at the Pentagon, his job was to limit liability. Seated on a floor cushion with his dagger pressing up toward his chin, Shadadi countered the demand for 101 rifles with an addition, tossing in a few extra guns for a total of 105. The money was trickier. If he agreed to the tribes’ asking price, the government would owe roughly $286,000 per person. Multiply that by each of the 12 dead men and Yemen was looking at a total bill of nearly $3.5 million. And that was before compensating any of the wounded or paying for the damaged cars.
For the rest of the afternoon Shadadi bargained, artfully searching for middle ground. He didn’t want to offend anyone so soon after the strike, but he needed to talk them down. Most of the men were already chewing qat, a leafy stimulant, and several were smoking in the stuffy side room as messengers slipped between the principals and the families waiting in the main hall. The negotiations were a complicated mixture of ritual and routine. Both Shadadi and the shaykhs were working off an understood script, a guideline of dos and don’ts that had been perfected over the centuries. Whatever deal they struck inside the room had to be acceptable to everyone outside. Plastic butane lighters repeatedly flicked and sparked as the day wore on, and the pile of discarded qat leaves grew. And then they had it: 12.75 million Yemeni riyals, or roughly $60,000. That was the number, the value of a man’s life.
Shadadi produced a pair of documents, and as soon as the tribal representatives signed, he brought out the 45 million Yemeni riyals, or just over $200,000, that his secretary had packed in bags the night before. That was a down payment. Together with $4,700 for the six injured men, close to $52,000 for several damaged cars, the total amount Yemen agreed to pay for the mistaken drone strike was almost $800,000. Shadadi told the men not to worry. The remainder of the nearly $600,000 in blood money would be forthcoming.
It wasn’t quite as simple as Shadadi suggested that day. The families waited, but the promised payments never arrived. Four months after the drone strike, in March 2014, I visited Yemen and asked Shadadi about the money. He shrugged as if the situation was beyond his control, saying simply that there were “problems.”
The two key questions were whether or not the dead men were civilians and the origins of the compensation cash. Yemen had already determined the strike was a “catastrophic mistake,” but the U.S. was still undecided and that seemed to be affecting the payout. Four months after it fired the missiles, JSOC was still trying to figure out what exactly had happened in the strike.
Three years earlier when McRaven’s men had killed Jabir al-Shabwani, the Yemeni deputy governor, JSOC had lacked the on-the-ground assets to investigate. Not much had changed under Votel. They still couldn’t visit the scene or interview survivors. But this time the U.S. was at least going to try to find out what happened. Votel had the strike video along with the rest of the pre-raid intelligence, and, according to the Associated Press, he asked an Air Force general to lead the investigation. As a way of checking his work, the White House ordered its own review from the National Counterterrorism Center.
Both investigations were forced to rely almost completely on pre-strike video taken from drones, a challenging proposition that, a bit like trying to view the world through a soda straw, often leaves out more than it reveals — in this case, apparently the bride. What no one disputed is that the footage showed a convoy of vehicles full of armed men. The question remained: Who were they? Bridal escorts with beards and guns, or al-Qaeda fighters?
The Yemeni government had negotiated as if the victims were civilians — not al-Qaeda — fronting $220,000 and promising much more for what it said was a U.S. mistake. But Votel was still pushing back, insisting the strike had hit legitimate targets. And as long as he did so, the money remained unpaid.
Several outside observers — ranging from nongovernmental organization workers to international lawyers — believe there may be a connection between the U.S. reviews and the delay in payments. They suspect that, instead of collecting and delivering money from the Yemeni government, men like Tuhayf and Shadadi are actually being used as fig leaves to disguise U.S. involvement in the payouts. The idea — if this is indeed what is happening — seems to be part of the strategy to put a local face on a controversial program. This is why, as WikiLeaks revealed, Yemen agreed to lie about the drones under President Ali Abdullah Salih. “We’ll continue saying the bombs are ours, not yours,” Salih told Gen. David Petraeus in early 2010, according to the cable. Funneling money for U.S. mistakes through the Yemeni government would be just one more false front in the drone wars, a way to strengthen the local government and deflect criticism at home. It would also raise serious questions about the wide gulf between what the U.S. claims publicly and what it seems to recognize privately.
In a war without borders, against an enemy without a uniform, what constitutes a civilian? For years, as journalists Jo Becker and Scott Shane showed in the New York Times, the U.S. has been giving itself the benefit of the doubt, operating on the assumption that every military-age male it killed was a militant. In a drone strike, you are guilty until posthumously proven innocent. The burden rests on families of the dead, uncles and brothers, who often live in remote regions and have little understanding of how to petition the U.S. government. Payment by proxy would allow the U.S. the wiggle room to have it both ways, counting the dead as militants while paying for them like civilians. Its own record remains clean while aiding an ally abroad.
The U.S. has engaged in this sort of maneuver before. In the aftermath of the 1989 Operation Just Cause to capture Manuel Noriega, it gave money directly to the Panamanian government to dispense to civilians. And in Yemen, following the disastrous 2009 attack that wiped out the Bedouin encampment, the U.S. transferred money to Salih’s government to compensate the victims and their families. At least that’s what one Yemeni official I spoke with said. U.S. officials tell a different story.
As late as April 2013, a Pentagon spokesman was still claiming that the Department of Defense had not made any “payments” in Yemen. It is unclear whether this was simply a semantic evasion — the U.S. making money available to the Yemeni government as opposed to making direct payments — or if no U.S. government money had gone to civilian victims in Yemen. Either way, one month after the Pentagon spokesman made that statement to Cora Currier, then of ProPublica, President Obama gave his counterterrorism speech in which he acknowledged that there had been both drone strikes and civilian casualties in Yemen.
But when I reached out to government officials earlier this spring and summer to see if the acknowledgment of civilian casualties in Yemen meant that the U.S. had also made condolence payments, no one would answer. Gone were the flat denials of April 2013, but there was nothing to take their place. After several email exchanges with different officers at the Pentagon stretching out over several weeks, I was finally referred to a spokesperson at the National Security Council who refused to address the question and gave a legalese-laden statement instead: “Although we will not comment on specific cases, were non-combatants killed or injured in a U.S. strike, condolence or other ex gratia payments, such as solatia, may be available for those injured and the families of those killed.”
The spokesperson went beyond the standard Glomar response (“we can neither confirm nor deny”), refusing to answer or in any way engage in questions about Yemen, even after I pointed out Obama’s acknowledgment of drone strikes and civilian casualties in Yemen as well as stated U.S. policy to compensate victims. The more I pushed, the shorter the replies. Eventually, I was referred back to the Pentagon, which also refused to address questions about Yemen.
Other agencies and departments were similarly vague. At one point, I received a phone call from an official at U.S. Central Command in Tampa, which oversees all U.S. military operations in the Middle East. He explained that he had been unable to find any documents relating to my Freedom of Information Act request. No one, he said, knew anything about “payments in Yemen.” He suggested I ask the State Department. FOIA requests to State and U.S. Special Operations Command have, to this date, gone unanswered.
President Obama has repeatedly confirmed that the U.S. has carried out drone strikes in Yemen and that some of those strikes have resulted in civilian casualties. That is fact, as is the stated policy that the U.S. compensates the families of those victims. But whether or not this has happened in Yemen, or how it is administered, no one will say.
But Tuhayf and Shadadi got the money and guns from somewhere. Yemen has been struggling for years. But things have gotten worse since the 2011 uprisings that eventually forced President Salih to step down. The new government has had trouble paying government salaries, and earlier this year Yemeni officials took to CNN to beg for fuel, claiming the military was about to run out of gas in its fight against al-Qaeda. More recently, the government instituted a series of austerity measures, including limits on overseas travel and expense claims.
Part of the problem is that the law surrounding civilian casualties is a mess. Much of the legal framework goes back to World War I, one of the last times new technology had raised serious questions about military responsibility and what we now term “collateral damage.”
During World War I, which Yale University legal historian John Witt calls the “first automobile war,” the U.S. shipped more than 100,000 vehicles across the Atlantic to the Western Front. In France, young GIs unused to driving on foreign roads were crashing at an alarming rate, destroying private property, and all too often killing civilians. Realizing that the French population was key to the war effort, Gen. John “Black Jack” Pershing, the commander of the American Expeditionary Force, requested legislation that would allow him to pay for U.S. mistakes. Within months, Woodrow Wilson had signed into law a bill that by World War II would evolve into the Foreign Claims Act.
But because of the nature of the fighting in World War I — the car crashes were happening behind the trenches of well-defined front lines — the original legislation had been written with a combat exclusion, which meant that the U.S. only paid if the accident happened in a noncombat situation. In other words, if a U.S. soldier killed a civilian on his way to the bar, the man’s family could be paid; if the soldier was on his way to a battlefield, the family got nothing.
As the nature and technology of war changed in the second half of the 20th century, particularly in Vietnam, the U.S. increasingly started to rely on a one-off system of “condolence payments,” which allowed it to make reparations even when civilians were killed as a result of a combat operation. But unlike the Foreign Claims Act, there was no real structure to these payments. They were discretionary and left up to each individual commander. And since the money came out of each unit’s operating budget, not everyone saw the strategic value of paying. Things got even more difficult when the U.S. started flying drones. Without troops on the ground, correcting and compensating for mistakes became much more challenging. Drones could fire missiles, but they couldn’t redress grievances.
Patrick Leahy, the 73-year-old Democratic senator from Vermont, knew all about the problem. He had been working on the issue for decades. After Operation Just Cause and the capture of Manuel Noriega, Leahy sought assistance for what he calls “the innocent victims of war” whose homes were destroyed and who died in the operation. He pushed for legislation, trying to create a bookend to Pershing’s World War I law, but couldn’t get the votes. But Leahy kept pushing, sinking deeper into one more lonely campaign. For much of his career, he had fought for the banning of landmines, even helping to write a 1996 Batman comic, Death of Innocents, warning of their dangers.
But in the years after Sept. 11, compensating families became more than just a moral cause. It also made strategic sense. Not only would payments preempt much of the false propaganda that Votel and JSOC were worried about, but they would also minimize the backlash that was helping al-Qaeda recruit. There seemed to be an easy fix to an obvious problem. The Senate could simply allocate money directly to the Pentagon. That way individual commanders would be off the hook, and the military could create an office to handle the payments and chart the civilian casualties. No longer would there be such a wide gulf between the administration’s estimates of civilian casualties and everyone else’s best guess. Now there would be transparency, and the U.S. could finally uphold standards that, as President Obama often says, “reflect our values.”
What Leahy wanted to do was put the whole issue of condolence payments on solid legal footing. This would give the whole issue “some consistency based on legal guidelines instead of trying to reinvent the wheel each time,” Leahy’s longtime aide, Tim Rieser, explained to me recently.
That reinvention had not always gone well. When the U.S. went to war in Afghanistan and then Iraq, the Department of Defense banned condolence payments in both countries on the grounds that they went against local customs. Months later, after learning more about the countries it had invaded, the Pentagon reversed itself. Condolence payments, it turned out, were indeed a part of both cultures.
Leahy wanted to avoid these type of mistakes, and he directed Rieser, a former public defender, to spearhead the effort in Congress. But just like in the 1990s, no one wanted new legislation. JSOC hated the idea of another law, which meant that the Armed Services Committee did as well. Each time Leahy tried to get a bill through the committee, someone blocked it. Eventually he gave up on that option and turned to the National Defense Authorization Act. But it was the same story there. Both times he tried — in 2012 and 2013 — it got stripped out. A century earlier, at the height of World War I, the U.S. needed barely a year to enact new legislation for the protection of civilians. But more than 12 years into the drone wars, Congress still couldn’t agree on a single bill. Of course in World War I, Black Jack Pershing was pushing for the law; JSOC was blocking this one.
The turning point for Leahy and Rieser came after their second failure with the NDAA in 2013. On Sept. 25, Marla Keenan, a 37-year-old managing director of a scrappy young NGO called Center for Civilians in Conflict, headed over to the Pentagon for a meeting. Along with Leahy and Rieser, Keenan had been lobbying the Pentagon for years. It was always the same. The military lawyers listened respectfully, thanked her for her thoughts and then ushered her out the door.
As soon as she got home, Keenan called Rieser to brief him on the meeting. “They don’t want it,” she said in reference to the new legislation. “They get the argument, they just don’t want it.”
Keenan thought the Pentagon had earmarked passages of the text to make it searchable. That’s why it always got stripped out. The Pentagon knew it was coming. “They’re ready for us,” she told Rieser. “It’s never going to get through.”
Rieser listened to her vent, but he had a new idea. For the past few months, he had been thinking through congressional procedures and contemplating options. And now he laid out his new plan for Keenan. Leahy sat on the Senate Appropriations Committee, and Rieser thought that the frenzied aftermath of the government shutdown in October 2013 gave them an opening to try something innovative. He was working on slipping the provision directly into the appropriations bill. The shutdown had pushed everything back, and with the budget bill months overdue, it just might work. Essentially, what Rieser was laying out on the phone was a giant end run around the Pentagon’s defenses to give the department money it didn’t want.
On Jan. 13, 2014, a month after the drone strike in Yemen, the Appropriations Committee finally revealed its long-overdue budget. Presented as an “omnibus” package — Latin for “all” — each member of Congress got to vote “yes” or “no” on all 1,582 pages of the massive compromise. Nothing could be stripped out; either everything went through or nothing did. That was the setup — an all-or-nothing bill against a ticking clock — that Rieser used to turn his language into law. No one from the Pentagon had time to find it, let alone block it. More than 300 pages into the bill, the single paragraph, innocuously titled Section 8127, and its eight subsections, taking up just over two pages of text, were easy to miss.
Still, Leahy and Rieser tried to keep the Pentagon’s concerns in mind. The new law remained voluntary — what lawyers call “ex gratia” — only this time at the level of the secretary of defense. It was a first step, but not one everyone thought went far enough. The U.S. was still under no legal obligation to compensate the families of civilians it killed, and indeed the text stated that it only could dispense cash if the recipient were deemed “friendly to the U.S.” Although how exactly commanders were to make this determination in the aftermath of a drone strike, when the U.S. had no personnel at the strike site, was left unclear.
The Pentagon had the money; now it needed a program. But ultimately what comes next is up to Secretary of Defense Chuck Hagel. If he doesn’t want to spend the money, he doesn’t have to. But to not spend the money allocated under Section 8127 would seem to break with U.S. policy on compensating civilian victims, and that is much different than a series of private blocks from anonymous lawyers. The problem for Hagel is that the money in 8127 comes with a catch: an annual report on the number of cases of civilian casualties considered and the amounts paid to their families. A written record and congressional reports would force the Pentagon’s mistakes out into the open. And for the quiet professionals, there is a big difference between covert cash and public scrutiny.
When I emailed the Pentagon to see if Hagel had reached a conclusion on establishing an office for the prevention of civilian harm, a spokesman wrote back: “Currently, the Department is working on a way ahead in regards to that provision of the appropriations bill. In the meantime, we can continue to execute condolence payments as necessary under the provisions of previous legislation.”
At the time 8127 and the rest of the budget bill was signed into law, Votel was still adamant that JSOC had not made a mistake in Yemen. Even if Hagel started a program, the U.S. wouldn’t owe any money. Votel was certain that Badani, the curly-haired Yemeni target, had been part of the convoy. But when the bodies were sorted, Badani’s was missing.
Iona Craig, a freelance journalist with years of experience in Yemen, visited the site six days after the strike and survivors told her they thought the U.S. had been after someone else, a local man named Nasir al-Hattam. They didn’t know Badani. He wasn’t from the area, and he certainly hadn’t been part of the convoy. None of them had even heard of him. Anonymous American and Yemeni officials initially claimed that Badani had been wounded in the strike. Months later that assessment seemed to change, and Badani was described as having “escaped unharmed,” which was why no one could find his body.
In Yemen, al-Qaeda is a diverse group, drawing on several different tribes across the country, which means that most big drone strikes usually result in a laundry list of tribal names. The Dec. 12 strike had only two: al-Taysi and al-Amri, the wedding tribes.
Earlier this spring, on a gray day in West Point, N.Y., President Obama returned to the issue of drones and civilian casualties. “We must uphold standards that reflect our values,” he told the cadets at the U.S. Military Academy. Once again, he repeated his pledge that the U.S. carried out strikes only when there was near certainty of no civilian casualties. “For our actions should meet a simple test,” he said. “We must not create more enemies than we take off the battlefield.”
In time, the results of the two reviews of the strike came back. One was clean and the other inconclusive. As Ken Dilanian, then of the Los Angeles Times, reported in May, the CIA had informed JSOC prior to the strike that it didn’t have confidence in the intelligence that Badani was part of the convoy. But for some reason, JSOC ignored the tip and carried out the strike anyway. Months later, the U.S. still wasn’t sure who it killed that day in Yemen. Without anyone on the ground, it had no way to posthumously prove that the dead were innocent. And if they were guilty, Votel and JSOC were innocent.
Shortly after the reviews were returned, the U.S. officially added Shawqi al-Badani to its “specially designated global terrorist” list and Obama nominated Votel for his fourth star and a promotion. On July 23, a voice vote in the Senate confirmed Gen. Votel as the new commander of U.S. Special Operations Command.
Around the same time, the families of the dead men received word that the rest of the nearly $600,000 in blood money was ready to be picked up. This time there would be no Tuhayf or Shadadi to transport the money south, just a message to appear at the Central Bank in Sanaa. Four days later the families had their checks.
Shuaib Almosawa aided in the research for this piece.
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