Well done on your casualty disclosures Mr. President, but your drone policies still need some work

Yesterday, at the direction of the President the Director of National Intelligence (DNI) issued the much-anticipated Summary of Information Regarding U.S. Counterterrorism Strikes Outside Areas of Active Hostilities about civilian casualties from drone strikes (though the word “drone” does not appear).  In addition, the White House issued an Executive Order (“United States Policy on Pre- and Post-Strike Measures to Address Civilian Casualties in U.S. Operations Involving the Use of Force”) which is also about drone strikes (though, again, the word “drone” is not used) along with an explanatory “Fact Sheet.”

Sure, it’s terrific to let the American people know that so much of the anti-drone rhetoric about civilian causalities is overstated.  And we definitely want people to know that we will give support to the families of genuinely innocent civilians who are injured or killed.  So there’s lots of good stuff in these documents (which largely build upon previous policies), but some other key things need to be front and center — and quite frankly a couple of things ought to be changed.

As I’ll discuss below, among the needed adjustments is a clarification to ensure everyone knows we won’t be making payments when the civilian who is incidentally killed is someone who was materially supporting terrorism.  Even more importantly, we ought not institutionalize the moral hazard that the “near certainty of no civilian casualties” policy invites.

Let’s review the new documents a bit for context.  In his report, the DNI says that in 473 drone strikes “Outside Areas of Active Hostilities” (which are places other than Afghanistan, Iraq, and Syria) from Jan. 20, 2009 through Dec. 31, 2015 there were a maximum of 2581 “Combatant Deaths” and a maximum of 116 “Non-Combatant Deaths.”

The DNI recognizes that news and other nongovernmental sources have different numbers (their “estimates range from more than 200 to slightly more than 900 possible non-combatant deaths”), but explains the divergence by noting that the US uses “information that is generally unavailable to non-governmental organizations…including sensitive intelligence.”

He adds that “post-strike reviews involve the collection and analysis of multiple sources of intelligence before, during, and after a strike, including video observations, human sources and assets, signals intelligence, geospatial intelligence, accounts from local officials on the ground, and open source reporting.”

The DNI also points out that “non-governmental organizations’ reports of counterterrorism strikes attributed to the U.S. Government—particularly their identification of non-combatant deaths—may be further complicated by the deliberate spread of misinformation by some actors, including terrorist organizations, in local media reports on which some non-governmental estimates rely.”

To his credit, the President used the very public medium of an Executive Order (EO) to implement his policies, even though the law does not require him to do so.  (For more about the legal effect of Executive Orders and how they can be modified and revoked, see here.)

In his EO the President rightly observes that civilian casualties “are tragic and at times [an] unavoidable consequence” of the lawful use of force.  He points out that as “a matter of policy, the United States therefore routinely imposes certain heightened policy standards that are more protective than the requirements of the law of armed conflict that relate to the protection of civilians.” (Italics added.)

The EO directs the incorporation of “best practices” designed to “reduce the likelihood of civilian casualties.”  These include more training of personnel, the fielding of systems meant to facilitate “more accurate battlespace awareness” and to “further enable the discriminate use of force in different operational contexts.”  It also gives specific examples of the kind of “feasible precautions” the U.S. would use to limit civilian casualties.

When such casualties do occur, he directs the “relevant agencies” to “review or investigate incidents involving civilian casualties” and to “offer condolences, including ex gratia payments, to civilians who are injured or to the families of civilians who are killed.”  The President also established a process whereby the DNI would annually “publicly release an unclassified summary” of information related to the number of strikes and the civilian casualties involved.

Very commendably, the President calls upon the International Committee of the Red Cross (ICRC) and other non-governmental organizations to “to assist in efforts to distinguish between military objectives and civilians, including by appropriately marking protected facilities.”  This is vitally important because I believe had the Doctors Without Borders hospital in Kunduz been marked with some internationally recognized symbol like a red cross that would be “clearly visible to aircraft, the tragic bombing might have been avoided.

The Fact Sheet is something of an advocacy piece, but adds some details.  It says the EO “catalogues the best practices the U.S. Government currently implements to protect civilians.”  The italicized portion of the previous sentence makes it clear that the EO is not so much initiating new processes but rather disclosing existing practices.  Similarly, it incorporates by reference the standards issued by the President in May 2013 (U.S. Policy Standards and Procedures for the Use of Force in Counterterrorism Operations Outside the United States and Areas of Active Hostilities).

The Fact Sheet references Afghanistan, Iraq, and Syria as places with “active hostilities” meaning civilian casualties from those locations are not covered by the new report or necessarily governed by the EO.  It explains that the President issued the documents because “we face terrorist propaganda and international suspicion, we erode the legitimacy of our actions in the eyes of our partners and our people, and we undermine accountability in our own government.”  (This would be a form of what I call “lawfare.”

Marty Lederman over at Just Security did a quick but quite thoughtful analysis of the documents, as did Bobby Chesney on Lawfare.  I commend those to you, and I would add a couple of further observations.

The DNI Report

In considering the casualty figures, it’s important to understand that as a matter of the law of war, the proportionality analysis is not an arithmetic endeavor.  Rather, the law prohibits not all civilian casualties, but only those that are excessive in relation to the concrete and direct military advantage anticipated.” (Italics added.)  (The “concrete and direct military advantage anticipated” would be, of course, the killing of terrorists.)  Moreover, recent figures by the non-governmental (and, in my opinion, drone-hostile) Bureau of Investigative Journalism, shows these figures for drone strikes in Pakistan for the 2013-2016 period:

Year                Max # of People Killed                    Max # of Civilians Killed 

2013               195                                                                 4

2014               186                                                                 2

2015                 85                                                                 5

2016                 12                                                                  1

Total               479                                                              12 

While it is indeed unfortunate that there were 12 civilians among the 479 people killed, it is nevertheless true that even using these non-governmental figures, it seems pretty clear that regardless of how drone operations might have worked years ago, no reasonable assessment of the program as it operates now could conclude that it results in “excessive” civilian casualties.

Accordingly, I think it is interesting that when you read critics who are still claiming drones caused as many as “possibly” a thousand civilian deaths, they don’t mention that in the last few years there have been relatively few civilian casualties – and, really, isn’t how the program is operating currently what truly matters at this point?

The Executive Order (EO) and the Fact Sheet 

As Bobby notes, the EO cites two separate legal rationales for using force.  One is the “inherent right to self-defense” (as enshrined in Article 51 of the UN Charter), and the other is the use of force against combatants in an armed conflict.”

The first authority permits striking any terrorist – even one not associated with an existing organization – if that person presents an “imminent” threat.  As the Fact Sheet notes, the U.S. further limits this by policy to a “continuing, imminent threat to U.S. persons.”  The U.S. has, however, taken a rather liberal interpretation of what is “imminent” in the modern context, something Brian Egan, the Legal Advisor to the U.S. State Department, reiterated in an April 2016 speech There Egan said various factors were assessed in determining whether a particular threat was imminent, including somewhat contentiously (in the minds of some anyway):

[T]he nature and immediacy of the threat; the probability of an attack; whether the anticipated attack is part of a concerted pattern of continuing armed activity; the likely scale of the attack and the injury, loss, or damage likely to result therefrom in the absence of mitigating action; and the likelihood that there will be other opportunities to undertake effective action in self-defense that may be expected to cause less serious collateral injury, loss, or damage.  (Italics added.)

Here’s another part with which some may disagree:

The absence of specific evidence of where an attack will take place or of the precise nature of an attack does not preclude a conclusion that an armed attack is imminent for purposes of the exercise of the right of self-defense, provided that there is a reasonable and objective basis for concluding that an armed attack is imminent. (Italics added.)

Although this conception of imminence remains controversial (and especially the parts italicized above), I believe it is a necessary evolution given the threats we see today.  There may only be a fleeting opportunity to stop relatively small numbers of people who today have the technological capability and weaponry to wreak large scale havoc against civilian populations.  And let’s not forget that the International Military Tribunal at Nuremberg observed that the law is not static, but by continual adaption follows the needs of a changing world.

Another interesting part of the EO is where the President directs “ex gratia payments, to civilians who are injured or to the families of civilians who are killed.”  These payments, which are not required by U.S. or international law, are explained in §18.16.3 of the DoD Law of War Manual:

Payment or Other Compensation Ex Gratia.  In some cases, States may provide money or other compensation to other States where not legally required (or without an admission of legal liability or fault).  For example, although indemnification is not required for injuries or damage incidental to the lawful use of armed force, compensation may be provided as a humanitarian gesture.  Similarly, a State may institute mechanisms to make payments to foreign persons who have suffered loss from combat operations, even when no violation of law of war has occurred.

There is an important caveat in the EO in that these payments are limited to those “appropriate and consistent with mission objectives and applicable law.”  This is critical because someone may be legally entitled to protected “civilian” status under the law of war, but still not be morally or legally “innocent.”  In other words, someone properly reported as a civilian casualty may not just agree with morally loathsome terrorist activities but also could be materially supporting them.  As I’ve noted elsewhere:

In some or perhaps many contemporary situations it is quite possible that a civilian killed in an attack may not only be morally blameworthy, but also legally culpable of a crime, including material support to terrorism. These supporting activities, while illegal, do not necessarily amount to direct participation in hostilities,” which is the level of involvement that international law requires to make civilians (as opposed to other non-state actors) properly targetable. Still, such persons are hardly “innocents.”

Quite obviously, the U.S. should not be paying anything as a result of killing such people, and the burden ought to be on the claimants to show that where the deceased was a sentient adult, that person was genuinely “innocent.”

With respect to who is – or is not – directly participating in hostilities, the U.S. has always taken a more comprehensive view of this than has the ICRC.  This is important as it relates to the second basis for the use of force cited in the EO, that is, against combatants in an “armed conflict.”  Not every terrorist is a combatant, as some may not be members of an armed group engaged in an armed conflict, but those who are may be attacked irrespective of whether or not they present an “imminent” threat at that point.

However, the ICRC claims that “civilians cannot be regarded as members of an organized armed group unless they assume a “continuous combat function”.”   In my opinion such an interpretation would privilege with protected civilian status members of terrorist organizations even when they are performing precisely the same activities as a member of a traditional military.  Let’s remember that in most militaries less than a quarter of the troops serve in combat specialties yet all troops (except mainly medical and chaplain personnel) are typically fully targetable under international law.

For example, troops in other-than-combat specialties (e.g., uniformed public affairs officers) are targetable virtually at any time and in any place in an armed conflict simply because they have the status of being members of a country’s military even though they may not be serving in a combat billet.  The ICRC approach would likely still protect from attack a terrorist doing this very same for a terrorist organization by categorizing that person as a “civilian.”

Not only is this illogical, it is of questionable morality to give terrorists more legal protection than that accorded military members.  Consequently, I think the Fact Sheet is correct in holding at risk of lawful attack individuals who are members of organized armed groups and who are performing functions “analogous to those traditionally performed by members of a country’s armed forces.”

I do, however, disagree with the Administration’s existing policy – which is reiterated in the new Fact Sheet – that holds that attacks will only take place if “there is “near certainty” that the terrorist target is present and “near certainty” that non-combatants will not be killed or injured.”  The Administration readily admits that neither standard is required by international law.

My problem with this is two-fold.  First, this policy telegraphs to terrorists exactly how they can avoid attack, that is, do precisely what the law of war seeks to avoid: surround themselves with civilians.  It incentivizes the use of human shields.  It really is that simple.

Secondly, and this relates to the previous concern, this policy creates what I call the “moral hazard.”  By this I mean that each strike that is forgone as a result of the policy does remove the risk of the Administration being criticized for civilian casualties that might occur as a result of an attack, but doing so actually shifts the risk onto helpless civilians on the ground who are now vulnerable to the barbarisms of the terrorist(s) who might have been killed had the strike taken place, but who now can live on to commit further horrors.

In short, it is not at all necessarily the case that if a strike does not take place that no civilian casualties will occur.  What is more is this: is there any evidence – literally “any” – that shows that anyone who was critical of drones was persuaded to support them because of this “near certainty” policy?

Will the President’s order and disclosures make a difference to the “transparency” critics?

Unfortunately, I don’t think so.

Indeed, even before the documents were issued, some critics were already complaining about a lack of transparency.  Among other things, they want “information about every strike — the date of the strike, the location, the numbers of those killed or injured, and the civilian or combatant status of those casualties.”  They are, apparently, indifferent (or oblivious) to the fact that such specific information would be exceptionally useful to adversaries in analyzing our intelligence sources and methods, not to mention devising ways of avoiding strikes altogether.

Ironically, when the critics produce their own reports denigrating drones, they often do not disclose the identity of their interviewees, claiming to do so raises concerns about the safety of those they say cooperated with them.  Thus, it is impossible to independently verify the allegations.  Despite recognizing their own security concerns, they don’t want to recognize that the government may have them as well.

I do think that there are some open-minded people who might find the President’s efforts persuasive.  Polls show that support for drone strikes rises dramatically among those who have higher educational levels.  I believe that this means that those who educate themselves about drones understand – and accept – the inevitable tradeoffs between security and transparency.  I’d wager that they understand that if you have to use force, drones are among the most discriminate means of doing so.  (And if you think drone strikes cause “blowback” read this.)

The fact is that most Americans were already satisfied with the drone program.  Last year a poll showed that 58% approved of their use (only 35% disapproved).  My bet is that in light of the horrific terrorism events since then, support today would be even higher.  The rest of the world?  I think it is unlikely that many minds will be changed as my sense is that the opposition may have more to do with U.S. security policies generally than with the particular means used.

Interestingly, a 2014 poll by the Pew Research Center found that while most people around the world opposed the U.S.’s use of drones (and its surveillance program), in “most countries there is little evidence this opposition has severely harmed America’s overall image.”  In fact, Pew reported that 65% still had a “favorable” view of the U.S.

Regardless, there is no changing some minds or, for that matter, organizational positions. I believe that for some non-governmental organizations critical of drones there is no ‘business case’ for changing their positions, regardless of what the facts may now show.  They – and the patrons they depend upon – are simply too deeply ideologically committed to opposing them to change their public posture.  (And, again, that opposition may actually be more about U.S. foreign policy generally than about this particular weapons’ platform.)

Unlike non-governmental organizations, governments have a responsibility to protect their citizens.  As the Supreme Court said in Haig v. Agee, it is “obvious and unarguable” that “no governmental interest is more compelling than the security of the Nation.”  While the Administration’s efforts may be imperfect, they do represent a sincere and, in many ways, an unprecedented effort to balance the needs of security with the transparency a democratic government ought to display in a free society.

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