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A predator drone at Creech Air Force Base in Nevada. (Photo: US Air Force)

We Need a Full, Transparent Review of the US Targeted Killing Program

Sarah KnuckeyHina Shamsi

In releasing information on April 23 about a drone strike that killed two western hostages in Pakistan in January, the Obama administration demonstrated that it is able and willing to acknowledge responsibility for strikes, carry out investigations into them, and publicly offer compensation to victims’ families.

This approach should be the rule rather than the exception.

But to the families of hundreds of Pakistani and Yemeni victims of US drone strikes, the United States has offered only silence. President Obama stated that he decided to release information about the January strike because “the Weinstein and Lo Porto families deserve to know the truth.” They certainly do. And so do Yemeni and Pakistani families who have lost their loved ones and who thus far have been denied even simple acknowledgment. The contrast is glaring, unfair, and likely to increase the already strong anti-American sentiment the lethal force program has caused abroad.

These limited disclosures also underscore the urgent need for meaningful oversight and implementation of reforms — including restrictions on the killing authority that President Obama announced in 2013, but from which he then partially exempted the CIA’s strikes in Pakistan.

Before and after the President’s 2013 reforms, in speeches and strategic anonymous “leaks,” US officials have sought to portray a “surgically precise” “targeted” killing program that is lawful, necessary, and minimizes harm to innocents. Those claims were made again last week. But the administration’s portrayal of its lethal force program is directly contradicted by on-the-ground investigations by civil society groups and others. (For some of the many detailed reports of civilian casualties, see here, here, here, here, here, and here).

As Scott Shane of the New York Times put it, US officials “often do not know who they are killing.”

Thirteen years after the first US drone strike, it is well past time for a more robust and transparent debate about — and an open, transparent, outside review of — the entire program, not just a single strike. How can we move forward? 

An obvious answer is meaningful review through existing domestic institutions and mechanisms. Congress should provide robust oversight, as the Senate Select Committee on Intelligence (SSCI) did through its landmark investigative report into CIA torture. Federal courts should adjudicate cases of alleged wrongful killings. The Obama administration itself should make public its legal and policy justifications, factual bases, and the consequences of its decisions to kill in response to Freedom of Information Act transparency requests.

Each of these mechanisms is important and must be pursued, but each also has limitations. As an excellent investigation by the New York Times made clear, meaningful congressional review may take time because the system of checks and balances when it comes to CIA drone killings has been broken. Learning defensive lessons from the SSCI’s exercise of its oversight authority regarding CIA torture, CIA officials (many of whom were also responsible for running the torture program) have so far succeeded in providing their overseers with selective information — often limited to CIA-chosen videos — apparently enough to quiet the concerns of some, but with no restraining action that the public can see. And so far, the government has succeeded in persuading the judiciary to decline judicial review of drone strikes, even when US citizens are killed. Finally, although the President has promised greater transparency, the Justice Department continues to fight FOIA requests in court that would open administration records to public review.

As the disclosures forcefully reminded us, the lives of innocent people — US citizens and non-citizens alike — are continually at risk. The government should pro-actively take immediate steps to allow a full and transparent review of the entire targeted killing program.

There are at least a couple of models for how this review might be carried out. For example, in response to calls for more oversight over mass dragnet surveillance, President Obama established a Review Group on Intelligence and Communications Technologies (PRG) to review and report on how the government could “better employ its foreign intelligence surveillance capabilities in a way that effectively protects our national security, while at the same time respecting our deep national commitment to privacy and civil liberties and maintaining public trust.” Review group members included former government officials and a privacy and civil liberties expert. All had high-level security clearances, and — this is critically important — all were given full access to highly classified information. This is not the only model that could be used, but it is a useful one to consider in the targeted killing context.

To be clear, such a review is not a substitute for much-needed congressional oversight or judicial review of individual strikes, and the review must examine the program as a whole. Just as the PRG was able to make its findings public, the findings of such a review would also be public so that the American people — and the international community — know how the US government is using its power to kill, what the problems have been, what changes are needed, and whether they have been made.

Any meaningful review of the US “targeted” killings program should include, at a minimum, evaluation of civilian harm and impacts, legal justifications, and strategic considerations. We offer five basic benchmarks for what a review should cover.

First, the outside review should start by evaluating the compliance of the program with the United States’ legal obligations and stated policy commitments. As part of that evaluation, it should examine compliance with obligations under the Constitution and international human rights and humanitarian law, and especially assess the lawfulness of killings outside the context of traditional armed conflict. Where violations are found, the review should recommend concrete remedial steps. At the same time, it should assess the adequacy of internal targeting procedures, guidelines, and the steps taken to protect civilian life. Assessment should include an evaluation of US compliance in practice with these internal requirements, including the government’s 2013 commitment to conduct such killings only where there is a “near certainty that non-combatants will not be injured or killed.”

Second, it is important for the review to examine each past strike in which civilian harm has been credibly alleged. Civil society groups, witnesses, and victims’ families should be able to submit evidence and be heard. The nature and sufficiency of US post-strike investigations should be evaluated. The review should result in the release, with minimal redactions as necessary for legitimate national security reasons, of what is known about any civilian harm from each strike. Where civilian harm is found, the US government should then publicly acknowledge it, so that victims and family members receive the kind of apology that the Weiner and Lo Porto families rightly received. And, going forward, the review should examine and publish the details of civilian casualties resulting from strikes undertaken in the future.

Third, the review should assess the total numbers of civilian injuries and deaths since the targeted killing program started, and compile and publicly release statistical or aggregate information, broken down by country and year.

Fourth, the review should consider and propose a mechanism to compensate survivors and family members of victims of past strikes and future ones.

Finally, it is essential that the evaluation cover the extent to which the program has been strategically effective, and the extent to which the government has studied and accounted for the program’s impacts. This “strategic effectiveness” review should take into account both short-term costs and benefits, and the promotion of peace and security in the long-term — for the United States, and also for Pakistani and Yemeni civilians, who suffer the vast majority of al-Qaeda and other terrorist violence. It should also assess the impacts of the program on US alliances, as well as on the standing of the United States internationally and among communities in which strikes take place.

There should be nothing particularly contentious about a review like this. Not only has it been conducted in the privacy context domestically, but around the world, the international community — including often the United States itself — calls for similar investigations or commissions of inquiry into controversial government conduct, particularly when there are credible reports and evidence of civilian deaths and international legal violations.

In discussing the strike that killed the two hostages, President Obama spoke of the willingness of the United States to “confront squarely our imperfections and to learn from our mistakes.” With less than two years left in office, the Obama Administration needs to take immediate steps to initiate a full review of its “targeted” killing program, in which the most fundamental of human rights is at stake.

Sarah Knuckey

Sarah Knuckey (@SarahKnuckey) is an international human rights lawyer and associate clinical professor of law at Columbia Law School, where she directs the Human Rights Clinic and co-directs the Human Rights Institute. She is also a Special Advisor to the UN Special Rapporteur on extrajudicial executions. She has carried out fact-finding missions and reported on human rights and humanitarian law violations around the world, including in Afghanistan, Brazil, Colombia, the Democratic Republic of the Congo, Kenya, Pakistan, Papua New Guinea, and the United States.  Her investigations and legal and policy work address unlawful killings, armed conflict, sexual violence, corporate abuses, and assembly/expression rights.  She has been an Adjunct Professor at NYU School of Law, and previously directed the Project on Extrajudicial Executions, and the Initiative on Human Rights Fact Finding, at the Center for Human Rights and Global Justice (NYU).

Hina Shamsi

Hina Shamsi is the director of the American Civil Liberties Union National Security Project

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