Since the attacks of September 11, 2001, the United States government – under two different administrations – considers itself at war with al-Qaeda, the Taliban, and their “associated forces.” In a speech to the National Defense University in May 2013, President Barack Obama maintained that this war has been “waged proportionately, in last resort, and in self-defense.” That statement is debatable, especially considering the surge in covert drone strikes ordered by the Obama administration over the last six years. Human rights and legal arguments revolve around accountability, methodology, transparency, and legitimacy, including the ability of the United States government to target individuals outside its borders and carry out attacks through the Central Intelligence Agency (CIA) rather than the Armed Forces.
A significant issue with drone strikes and covert action is the legality of attacks on groups or individuals outside US sovereignty. Without a direct declaration of war, the President cannot maintain ongoing military action. But since the Bush and Obama administrations have declared war on al-Qaeda, the Taliban, and associated terrorist elements, actions taken against these groups are considered acts of war and therefore legal under US law. The Congressional directive used by the Obama administration to domestically justify the drone program is the Authorization for the Use of Military Force (AUMF), a joint resolution passed by Congress on September 18, 2001. After September 11, Congress authorized the use of force against these organizations, and thus actions undertaken by Presidents Bush and Obama are seen as aspects of a legal war, albeit waged across continents and decades.
Legal scholars debate the finer points of US code and constitutional powers, and the difference between requirements for military force and covert action complicates the discussion. The War Powers Resolution of 1973 (50 U.S.C. 1541-1548) requires the President to consult with Congress on deployment of US Armed Forces “in every possible instance,” and to end combat in foreign territory after 60 to 90 days unless Congress approves further action. As a covert operations organization, the CIA is not subject to the same types of disclosure regulations as the military. According to its mandate, the CIA is exempt from public disclosure and publication of its functions, official titles, names of personnel, and other aspects of its operation. This presents issues for the reporting of lethal force, as the regulations focus on the Armed Forces and official military operations rather than covert programs.
Congressional committees such as the Senate and House Intelligence Committees, the Senate Foreign Relations Committee, and the House Foreign Affairs Committee are supposed to receive updates and briefings on military action and operations around the world, but in the case of drone strikes these groups find their requests for information repeatedly brushed aside by the Obama administration. Micah Zenko of the Council on Foreign Relations writes extensively about drone strikes, and in January 2013 authored a report on “Reforming US Drone Strike Policy.” He covered Congressional reporting in this way:
Congressional oversight of drone strikes varies depending on whether the CIA or the US military is the lead executive authority… According to senior staff members on the Senate Foreign Relations Committee and House Foreign Affairs Committee, many of their peers have little understanding of how drone strikes are conducted within the countries for which they are responsible for exercising oversight. Even serving White House officials and members of Congress repeatedly make inaccurate statements about US targeted killings and appear to be unaware of how policies have changed over the past decade. At the same time, the judiciary committees have been repeatedly denied access to the June 2010 Office of Legal Counsel memorandum that presented the legal basis for the drone strike that killed US citizen and alleged leader of AQAP [al-Qaeda in the Arabian Peninsula] Anwar al-Awlaki in September 2011. Finally, despite nearly ten years of non-battlefield targeted killings, no congressional committee has conducted a hearing on any aspect of them.
In May 2013, the White House released a summary of a classified Presidential Policy Guidance regarding the criteria necessary for the use of lethal force, in which the President shared aspects of “the Administration’s rigorous process for reviewing and approving operations to capture or employ lethal force against terrorist targets outside the United States” so that the American public “can make informed judgments and hold the Executive Branch accountable.” Included in the summary document were presidential guarantees that Congress would continue to be informed of relevant updates on counterterrorism efforts. The attempt at transparency still left many questions about the nature of the drone operations program, and continued administration redirection to previous speeches by President Obama, former White House counterterrorism advisor John Brennan, and others contribute to the cycle of secrecy surrounding the program.
Government transparency is a key feature of a democracy and a system based on the rule of law. Democracy’s very foundation is based upon the accountability and responsibility of the government to the people who vote its officials into power. A democratic system of governance is intended to protect the rights and interests of all citizens, especially minorities. The famous words of President Lincoln from the Gettysburg Address – “government of the people, by the people, for the people” – elegantly describe a system of rule where elected officials must abide by the interests and desires of the people over whom they exercise authority. Transparency is not only in the interest of human rights promotion, but also in the national interest of the US government.
The main arguments for government transparency on the use of lethal force are:
Protecting civilians: Transparency in drone strikes, covert action, and other uses of lethal force outside the borders of the United States would clarify that the US government is upholding domestic and international standards of human rights law. In its recent report regarding the strike on a Yemeni wedding convoy, Human Rights Watch encourages the US to disclose the processes and nature of drone strikes in order to verify that it is doing everything in its power to minimize civilian casualties. Amnesty International also conveys the need for government transparency to ensure that the right to life of all people is being respected. While many Obama administration officials, including the President himself, have assured the American public and the international community that stringent criteria are followed in the process of conducting drone strikes, the actual nature of this process is not revealed, and therefore cannot be verified by non-administration sources.
Upholding domestic and international human rights and humanitarian law: In conjunction with the protection of civilians, transparency about the use of lethal force will ensure that the US government is operating in accordance with international human rights and humanitarian law about proportionate attacks. Under international human rights law, individuals cannot be targeted for past illegal behavior, but rather only if they pose an imminent threat. If the US government were to disclose the methods of drone strikes, it would be clear whether the process follows these human rights considerations. The Obama administration holds that its operations are legal under domestic law because the US is at war with al-Qaeda and its affiliates, but increased transparency would clarify whether the operations are also legal under international human rights law.
Maintaining credibility of the US government: Ongoing covert actions and the use of lethal force without adequate reporting and accountability only serve to weaken the credibility of the US government, on both the national and international arenas. Amnesty International argues that the questionable methods of drone strikes and the secrecy surrounding the program undermine the US government’s reputation as a human rights advocate, sets a dangerous precedent that other governments could follow, and the idea of the “global war” legal argument could undermine the international institutional framework of human rights law that the US purports to protect. Not only does the practice of secret drone strikes undermine US credibility, but arguably strengthens targeted enemies by fostering deep resentment toward the United States among affected populations. Kenneth Anderson of the Brookings Institution and Washington College of Law, American University, wrote in The Washington Post that it “undermines public trust to have a democratic government say that it’s not lying to the public, not technically lying, merely because it refuses comment.” Similarly, the American Civil Liberties Union (ACLU) contends that the “administration shouldn’t be permitted to pretend that everything about the program is a secret while its most senior officials conduct a public relations campaign about it.” Therefore, the Obama administration should increase transparency of its lethal force programs in order to strengthen the national security of the US, as well as promote a more positive reputation at home and abroad.
Bringing government actions in line with previous statements by the administration: Finally, the Obama administration should increase transparency of its lethal force operations in order to bring its actions in line with previous statements. Remarks by former counterterrorism advisor John Brennan in April 2012, the President’s speech in May 2013 to the National Defense University, and the Presidential Policy Guidance the same month all suggested an increase in transparency and rigorous criteria for carrying out drone strikes. But, as previously described, the actual process of transparency has not been carried out. Congressional committees have not received full briefings or accounts of practices, and the administration and CIA have avoided acknowledging participation in drone strikes or unintentional consequences of such strikes. President Obama made the case for government transparency himself, in an open memorandum titled, “Transparency and Open Government,” arguing that government should be transparent and participatory because “transparency promotes accountability and provides information for citizens about what their Government is doing,” since “public engagement enhances Government’s effectiveness and improves the quality of its decisions.” President Obama should work to bring the actions of the US government into line with his administration’s stated commitments to transparency and accountability.
The US is at risk of being left behind by the rest of the world, and losing its position as a respected advocate for democracy and human rights. A recent report released by Ben Emmerson, UN Human Rights Council Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, found 30 drone strike cases where additional information is needed. Emmerson writes, “in any case in which there have been, or appear to have been, civilian casualties that were not anticipated when the attack was planned, the State responsible is under an obligation to conduct a prompt, independent and impartial fact-finding inquiry and to provide a detailed public explanation of the results.” President Obama has the opportunity to provide information about these strikes identified by Emmerson, and in doing so would bring US government practices in line with international human rights and humanitarian law. The President should act to increase transparency on drone strikes before the image of the US is degraded any further.