During the debacle in the withdraw from Afghanistan, the Biden Administration claimed to have killed an “ISIS-K Planner” but curiously refused to give his name despite repeated media requests. It was odd because clearly he knew about it as did his colleagues. Ten innocent people (rather than three claimed by the Administration) appear to have also died in the attack. However, now the New York Times reports that we may have vaporized an innocent person who was loading water rather than munitions into his car. Indeed, the newspaper suggests that he is a former U.S. Aid worker. If so, the report could trigger a compensation demand. We just discussed such compensation system in my Torts class.
The Administration announced late last month that the drone strike, carried out the day after a suicide bombing killed 13 U.S. service members, killed an alleged “ISIS-K planner” and an “associate.” However, the New York Times interviewed friends and family in Kabul as well as reviewed the tape of the attack. It believes that the target was Zemari Ahmadi, a longtime worker for a U.S. aid group” and “[t]he evidence suggests that his travels that day actually involved transporting colleagues to and from work. And an analysis of video feeds showed that what the military may have seen was Mr. Ahmadi and a colleague loading canisters of water into his trunk to bring home to his family.”
There are a number of questions that still must be answered. The Administration is still insisting that this was a legitimate killing. If not, there are also questions concerning the refusal to identify the target and the failure to reveal these serious questions over the possible mistaken attack.
Such attacks in wartime were treated as acts of “public necessity” under the common law where no compensation was required from governments. However, the United States has long compensated for damages caused in wartime.
In 1918, Congress allowed compensation for civilians harmed in France. Congress later expanded the 1918 Act with the Foreign Claims Act (FCA) during World War II to “promote and maintain friendly relations through the prompt settlement of meritorious claims.” At the time, the Acting Secretary of the Navy wrote a letter to Congress stating “Experience in connection with the presence of our armed forces in foreign countries has demonstrated that the failure to pay promptly for damages done to native residents by members of our forces is one of the principal sources of irritation which adds considerable difficulty to the maintenance of cordial relations with foreign people.”
These payments are called “solatia” and Army regulation 27-20, Paragraph 10- 10, provides “Payment of solatia in accordance with local custom as an expression of sympathy toward a victim or his or her family is common in some overseas commands.”
The United States might agree to pay compensation for the 10 other deaths while insisting that no compensation is necessary for the driver because he was a terrorist. The Pentagon claims that the secondary explosions show that there were explosives in the car but the New York Times also disputed the claim of secondary explosions.
The incident shows how little independent review occurs in such killings. The government is rarely forced to supply evidence supporting such attacks. Indeed, I opposed President Obama’s “kill list” policy due to the lack of such protections for U.S. citizens targeting for killing by a U.S. President.
The compensation under federal law is generally not something that can be demanded by foreign citizens in court. Indeed, even litigation over a wrongful death under the Federal Tort Claims Act is difficult on an extraterritorial basis. In the absence of congressional interest in the killing (which may be muted due to political considerations), the media has little ability to dig beyond witness accounts and the released videotapes.