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Image credit: Daniel GreenfeldThis article was first published on Just Security
Much of the news in the first few months of the Trump
administration has been dominated by the Russia scandal, James Comey,
and the President’s Twitter feed. Falling below the radar of many
news outlets, but something that is of growing concern, is the Trump
administration’s attitude and approach to the use of force
overseas. In its short time in power, the new administration has
already shown itself to be more aggressive than its far from war-shy
predecessor. U.S. strikes in Yemen have dramatically
increased, and the average number of lethal operations per month
in Pakistan, Somalia, and Yemen is nearly quadruple what it was under
Obama. The limited policy restraints President Obama imposed on the
use of lethal force in places far from traditional battlefields are
at risk
of being discarded by an administration that has already reportedly
acted to loosen these rules in parts of Somalia
and Yemen.
The question remains whether, or how much, the Trump White House will
ever commit to transparency and accountability—and what can be done
to monitor the administration.
As highlighted in a new report
published today by Columbia Law School’s Human Rights Clinic and
the Sana’a Center for Strategic Studies, the heightened prospect of
abuse and civilian harm under the new administration makes
transparency more important than ever.
The report is the first comprehensive review of the extent of U.S.
secrecy and transparency about drone strikes and lethal operations
and covers a 15-year period (2002-17), focusing on
Pakistan, Somalia, and Yemen, where, for many years, “targeted
killings” and drone strikes have been carried out in great secrecy
far from traditional battlefields. The report grades the U.S.
government on its transparency record, marking the government
according to a five-point scale ranging from “no/almost no
transparency” to “complete transparency.”
Here we set out how transparent the U.S.
government has been, present a new framework for transparency and our
evaluation of U.S. practice between 2002-17, and run through the
different reasons why transparency is important. We finish by looking
ahead and providing some key data points that will aid in assessing
the Trump Administration’s approach to this issue. We believe our
model can also be applied to other countries, including U.S. allies
and adversaries alike.
How Transparent is the U.S. Government?
Overall, we found that despite some important, if belated, steps
toward greater transparency between 2010 and 2016, the U.S.
government has been highly secretive. While the Bush era and the
early part of the Obama presidency were marked by almost complete
secrecy in this area, in the latter part of President Obama’s
tenure the government made several key disclosures. These included
the release of information about legal and policy constraints on, and
procedures for, the use of lethal force abroad, as well as basic
statistical data on civilian casualties. Notably, the U.S. government
also started to provide official acknowledgments and release basic
information about specific strikes in Somalia from 2014, and in Yemen
from 2016. These reforms and disclosures were significant, not least
because they showed how greater transparency was possible even in the
face of internal resistance within the government. It will be
important to see whether they are maintained, built upon, or
discarded by the Trump administration.
The U.S. government, however, is still secretive in a number of
important areas. Nearly all past strikes and civilian casualties
remain unexplained, and operations and strikes in Pakistan remain
cloaked in secrecy. Our research reveals that the government has
officially acknowledged just over 20 percent of the more than 700
reported
strikes in Pakistan, Somalia, and Yemen since 2002. There is a
dearth of information about accountability for wrongdoing and the
legal basis for specific strikes, and the U.S. government has also
failed to explain key legal and policy rules, the specific terms that
are relevant to such an assessment, and how they apply.
Our key conclusions are:
-
The U.S. has improved
transparency about the legal and policy rules applicable to the use
of lethal force overseas, but the rules remain vague and poorly
explained. -
Drone strike and lethal force
practices are highly secretive, there has been limited, or no
information provided to families or the general public about
specific strikes, and civilian casualty data lack sufficient detail. -
The U.S. government has provided
information on decision-making processes, particularly for the
military, but the CIA’s decision-making processes remain highly
secretive. -
The U.S. government has disclosed post-strike military
investigative procedures and some aspects of Congressional oversight
processes, but there is little or no transparency regarding specific
follow-up, or actions taken to ensure accountability in individual
cases.
In the report, we set out a concrete agenda for reform and a
number of specific recommendations for the U.S. government and other
governments. These include calling on the U.S. government to:
-
Record, acknowledge, and explain
to families and the public every civilian death, providing the name
of the person killed. -
Provide detailed explanations
for all past and future cases in which there are credible
allegations of unlawful killings or civilian harm. In particular,
provide urgent responses to ten serious cases that civil society
groups have raised
with the U.S. government. -
Promptly release the results of
all government investigations into specific strikes, subject only to
redactions where families of those killed, or those injured, have
requested privacy or to ensure their physical safety, or only as
strictly necessary for legitimate national security reasons. -
Disclose the legal basis for individual strikes, including
by releasing all Office of Legal Counsel and other agency legal
memoranda that set forth the grounds for the use of force against
all persons targeted, whether U.S. citizen or non-citizen.
Evaluating Government Transparency and Secrecy about the
Use of Lethal Force
We analyzed U.S. practice in four key areas: transparency about
applicable law and policy; transparency about actual
strike practices; transparency about government
decision-making processes; and transparency about
accountability. With a focus on U.S. practice in
Pakistan, Somalia, and Yemen—where, for many years, strikes have
been carried out far from traditional battlefields and in great
secrecy—we graded the U.S. government’s record against a
five-point color-coded scale ranging from “no/almost no
transparency” to “complete transparency.”
Too often, the debate about transparency has become stuck in
generalities. By breaking down transparency into its component parts,
we hope to encourage a more specific and nuanced discussion about
different types of information and the extent to which transparency
is needed. Some of the key questions that we sought to answer were:
What kinds of transparency are important, and why? In
which areas have positive steps been taken toward transparency? What
exactly do U.S. government disclosures tell the public about U.S.
policy and practice on the use of lethal force? What is unclear,
uncertain, secret, not known?
The report includes a framework against which the U.S. and other
governments that use lethal force abroad can be evaluated: a set of
human rights-based “Ensuring Transparency in the Use of Force
Benchmarks.” These benchmarks were designed by the
authors of the report and are “grounded in the interests and rights
of people impacted by U.S. strikes, international law, and the
promotion of the rule of law and democratic accountability.” Built
into the framework is a recognition that secrecy is clearly necessary
in certain circumstances—for legitimate national security reasons
or to protect individuals whose lives may be at risk, for example.
The framework is intended to aid policymakers, journalists, and
others to assess government transparency and secrecy in the use of
force over time.
In terms of legal and policy transparency, the
U.S. government receives mostly low grades. Following years of almost
complete secrecy, and following litigation and heavy domestic and
international pressure, between 2010-2016 the U.S. government
publicly
explained important elements of its legal reasoning, the legal
basis for strikes, and key policy standards. However, important
details remain unclear:
Numerous memoranda explaining the legal basis for
specific strikes and operations remain secret. Key legal and policy
terms relevant to understanding who, how, and in what circumstances
the U.S. government believes it can kill are not clearly defined,
affording a wide latitude for interpretation with the potential to
undermine constraints on the President’s authority to kill. Without
adequate disclosures explaining how the United States interprets,
defines, and applies key terms it is difficult both to understand
precisely what are the United States’ views of the legal and policy
limits on the use of lethal force and to assess whether the United
States is accurately interpreting its binding international legal
obligations.
Calls for transparency have been particularly vocal in relation to
transparency about specific strikes and U.S. practices, where
for many years there was almost complete secrecy. There have been
changes. In 2014 in Somalia, and in 2016 in Yemen, the U.S. military
began officially and regularly acknowledging strikes. However, for
earlier strikes, and almost all strikes in Pakistan, there is almost
no official acknowledgment at all.
The United States has almost never disclosed the names of
civilians killed. It released details of investigations and
assessments in relation to just a handful of the hundreds of strikes
in Pakistan, Somalia, and Yemen, and has not given adequate responses
to non-governmental organizations that have for years requested
explanations about specific strikes in which there is credible
evidence of civilian casualties and potential unlawful killings. It
has officially named
only one U.S. civilian, and one Italian civilian killed in a strike
in Pakistan, as well as several other U.S. citizens it said
were “not specifically targeted.” The unusually extensive
information released
about the strike that killed Weinstein and Lo Porto shows that the
government can and should disclose such information about
all such strikes. What message does this double standard
send to the vast majority of those killed and injured in U.S. strikes
who are citizens of Pakistan, Yemen, and Somalia?
Importantly, the U.S. government also began releasing
civilian casualty data in 2016, and again
in 2017. However, the U.S. government’s figures have been the
subject
of some debate,
and criticized
by a number of commentators. As the government has provided
only very basic statistics, it is difficult to engage in a serious
review or analysis of the U.S. government’s numbers. A more
detailed breakdown is needed, including at least by country and
location, and also by age and sex.
The U.S. government has provided more information regarding how
decisions are made, particularly in recent years. In 2016,
pursuant to litigation brought by the ACLU, the U.S. government
released its Presidential
Policy Guidance (PPG) about the institutional actors and
processes involved in deciding to launch a strike in areas “outside
of active hostilities,” although a number of important exceptional
procedures remain unexplained.
This policy does not cover all targeting decision-making processes.
For situations not covered by this policy, there is a glaring
difference between CIA and military transparency. The U.S. military
has disclosed a series of documents
outlining its targeting decision-making process in generic form.
However, it is very difficult to find publicly available information
about CIA targeting decision-making processes.
The U.S. military is, and has been for some time, transparent
about its accountability processes
and protocols.
However, again, very little information is available for the CIA. In
terms of congressional oversight mechanisms, since 2012 there has
been greater transparency, but a full assessment of congressional
oversight is hindered by a lack of detailed information about
recommendations made and actions taken by the executive branch in
relation to the use of force. This makes it difficult to assess how
meaningful this oversight is.
Crucially, there is no clear and accessible mechanism for those
injured and the families of those killed in strikes in Pakistan,
Somalia, and Yemen to bring forward allegations or to claim and
receive compensation or condolence payments, nor is there much
publicly available information about compensation or condolence
payments provided. In U.S. courts, the government has also sought to
prevent scrutiny of its strikes abroad by arguing for a broad
application of the state secrets doctrine.
Why is Transparency Important?
While improved transparency is not the complete answer to the many
concerns related to the U.S. use of force abroad, it is of critical
importance. Transparency matters for the families of those killed and
injured, compliance with international law, protecting the rule of
law, democratic accountability, deterring wrongful
behavior—particularly important when there is a heightened risk of
abuse—and U.S. leadership and credibility. The report also explains
how different types of transparency matter for different reasons:
Transparency about the facts—who was
killed, what happened and where, for individual strikes and in
overall statistics—matters to those injured and families of those
killed in strikes, whose suffering currently remains unacknowledged
and unaccounted for. It matters to the general public, who require
such information to engage in informed debate about their
government’s actions, and to hold their elected representatives to
account.
Transparency about the laws and policies
being applied to strikes, about the facts of strikes, and about the
government’s decision-making and accountability
processes, is essential for the rule of law, deterring abuse,
enabling oversight, and establishing accountability for abuse. As a
prerequisite to accountability, transparency is necessary to ensure
that a government adheres to domestic and international legal limits.
Rules that are secret fundamentally undermine the rule of law, and
rules that lack clarity lend themselves to abuse and weaken the
capacity of external actors to assess whether a rule is being
implemented in practice. As former U.S. government officials have
noted, transparency enhances U.S. government credibility and builds
trust with key partners.
Transparency is also required by binding international
law. International law requires governments to be transparent
about state conduct, and permits only narrow exceptions for secrecy
in limited circumstances. Victims have a specific right to a remedy,
which includes rights to disclosure and the truth.
Looking ahead: Data Points to Assess the Approach of the
Trump Administration
It is still too early to make a full assessment of the Trump
Administration’s approach to these issues, although there is
already ample cause for concern. U.S. strike acknowledgments in
Yemen, for example, have become even more generalized, with the U.S.
military at times acknowledging
80 strikes at a time over a period of several months, rather than the
more individualized acknowledgments
that were the norm at the end of Obama’s tenure.
There are a number of key data points that can be used to assess
whether transparency is improving under Trump, staying the same, or
if this administration will instead repeat the mistakes of the early
Obama years of excessive secrecy—an approach that undermined
counterterrorism efforts and increased the suffering of the families
of those killed and injured. A selection of these data points are
listed below:
Legal and policy standards. Will the Trump
Administration release a compendium of what it assesses to be its
legal and policy rules on the use of force, as the Obama
Administration did
in December 2016? A Presidential
Memorandum issued at the same time requires the National Security
Council to coordinate a review and update this report on at least an
annual basis.
Legal justifications. Will the U.S. government
release the legal basis for specific strikes and operations, for
example, pursuant to the ACLU’s litigation
on the disastrous January
raid in Yemen? Will the Trump Administration be transparent about
any changes to the policy standards it applies to strikes, which are
reported
to be the subject of discussion within the Administration?
Strike acknowledgments. Will the Department of
Defense, U.S. Central Command, and U.S. Africa Command regularly and
individually acknowledge strikes? Will the CIA ever specifically
acknowledge strikes that it has carried out? Will any strikes in
Pakistan be specifically acknowledged?
Civilian harm. Will civilian casualties in
individual cases be acknowledged? Will the names of civilian victims
of strikes be released? Will the U.S. government continue to release
its annual report on civilian casualties—the last one was issued by
the Obama Administration in January
2017—and will it supply the much-needed additional details?