Deaths of Hostages Demonstrate Need for Reform of Drone Strikes

Posted April 24, 2015

Deaths of Hostages Demonstrate Need for Reform of Drone Strikes

April 24, 2015

The Obama Administration’s admission yesterday that it killed two hostages in a drone strike in Pakistan, as well as other al-Qaeda operatives it was not intentionally targeting, underscores the hazards of permissive polices for the CIA’s targeted killing program and the need for reform. Yesterday, unnamed U.S. officials confirmed to the Washington Post that the attack had been a “signature strike,” a controversial category of strikes in which the target is identified based on a pattern of observed behaviors without specific intelligence about who the targets are or their affiliation with a terrorist group. Despite such extremely limited intelligence, the Administration authorized the strike. These strikes – which are not limited to Pakistan – often do not even meet the Administration’s own low standards for minimizing collateral civilian casualties. They have been ineffective at reducing the size of terrorist organizations and are encouraging resentment and radicalization in vulnerable populations. The problem is not the tool of drones, but the targeted killing policies that govern their use and are overdue for reform.

The Administration’s targeted killing policies are too permissive, allowing strikes with little knowledge of who will be killed. The Administration has admitted that it had limited knowledge of the target when it authorized the strike, knowing only that it was an “al-Qaeda compound” but not who was present. Of the two al-Qaeda members who were U.S. citizens whose deaths were reported yesterday, neither of them was the specific target of the attacks that killed them. As Micah Zenko, Douglas Dillon Fellow at the Council on Foreign Relations, noted yesterday, “In total, eight U.S. citizens are believed to have been killed in U.S. counterterrorism operations, and only one of them was specifically, knowingly targeted.” The permissive targeting procedures have resulted in hundreds of civilian casualties. Averaging several studies, Zenko writes that “there have been an estimated 522 U.S. targeted killings in Pakistan, Yemen, and Somalia since 9/11, which have killed 3,852 people, 476 (or 12 percent) of whom were civilians.” Despite hollow rhetoric, the Administration has refused to reckon with these collateral deaths or the low standards for targeting that have promoted them. [Micah Zenko via Foreign Policy, 4/23/15]

The Administration is not adhering to its already lax policies for targeted strikes. As Zenko wrote yesterday, “the policy that allegedly guides U.S. counterterrorism operations does not justify the killing of those unknown individuals who by chance are later determined to be terrorists.” But as Jameel Jaffer, Deputy Legal Director for the American Civil Liberties Union, said yesterday, in these cases “the U.S. quite literally didn’t know who it was killing. These and other recent strikes in which civilians were killed make clear that there is a significant gap between the relatively stringent standards the government says it’s using and the standards that are actually being used.” This slackness is endemic to the targeted killing program. A new report by the Open Society Justice Initiative on civilian deaths in drone strikes in Yemen concludes that their findings “cast doubt on the U.S. and Yemeni governments’ claims about the precision of drone strikes, while raising serious questions about the extent to which the U.S. is complying with international law. They also cast doubt on the extent to which the U.S. is complying with its own policy guidance.” The findings suggest that the United States has continued to conduct signature strikes in Yemen despite reports in 2013 that the Administration had not authorized their use there. [Micah Zenko via Foreign Policy, 4/23/15. Jameel Jaffer via Washington Post, 4/23/15. Open Society Justice Initiative, 4/15]

The Administration’s targeted killing policies have not been effective, and might be contributing to radicalization in vulnerable regions. As Yemen scholar-turned-reporter Gregory Johnsen has noted, despite an intensive drone campaign, recruitment for al-Qaeda in the Arabian Peninsula (AQAP) has surged, writing in 2013 that “for all the strikes and all the dead, [AQAP] continues to attract more members, growing from 300 in 2009 to well over a thousand today.” The Open Society report notes that “The case studies documented in this report show that the outrage and desire for revenge are acute when civilians are killed or injured by U.S. airstrikes.” It cites comments by Gen. James Cartwright (Ret.), a former Vice Chairman of the Joint Chiefs of Staff, who said that the U.S. targeted killing program is generating “blowback…If you’re trying to kill your way to a solution, no matter how precise you are, you’re going to upset people even if they’re not targeted.” [Gregory Johnsen via Foreign Policy, 8/6/13. James Cartwright via Open Society Justice Initiative, 4/15]

Experts have been developing institutional reforms to discipline the targeted killing program for years. It’s time to consider their merits and act on the best ideas:

Transfer all targeted killing operations to DoD: Micah Zenko explains, “To take a meaningful first step toward greater transparency, President Barack Obama should sign a directive that consolidates lead executive authority for planning and conducting nonbattlefield targeted killings under DOD.” Efforts to transfer authority for drone strikes away from the CIA may have been stymied by Sen. Dianne Feinstein (D-CA), though she stressed yesterday the need for greater transparency in drone strikes. [Micah Zenko, 4/16/13]

Mandatory Consultation: Congress could mandate a formalized, publicly understood executive or executive-legislative review process before attacks. Gerard Magliocca of Indiana University has proposed “Congress create a statutory regime for such decisions that would require the National Security Council to sign off on each of these citizen attacks before the President can proceed.” [Gerard Magliocca, 2/05/13]

After-the-fact review: Brookings’ Benjamin Wittes and others have proposed mandatory review processes – executive, judicial, or independent in nature – that would consider every targeted killing that has been authorized and provide both fuller oversight and a check on overly-aggressive use of the tactic. [Lawfare, 7/12]

Judicial review before strikes: Rosa Brooks of Georgetown University Law Center argues for greater judicial review: “Congress should consider creating a judicial mechanism, perhaps similar to the existing Foreign Intelligence Surveillance Court, to authorize and review the legality of targeted killings outside of traditional battlefields.” [Rosa Brooks, 4/11/13]