Major development concerning transparency of the use of force in Yemen

“I think the rule should be that if we’re going to take actions overseas that result in the deaths of people, the United States should take responsibility for that.”

(John Brennan, the Washington Post, Oct. 24, 2012)

“[W]here necessary, through a range of capabilities, we will continue to take direct action against those terrorists who pose the gravest threat to Americans.  Now, as we do, we must enlist our values in the fight.  That’s why my administration has worked tirelessly to forge a durable legal and policy framework to guide our counterterrorism efforts.  Throughout, we have kept Congress fully informed of our efforts.  I recognize that in our democracy, no one should just take my word for it that we’re doing things the right way.  So in the months ahead, I will continue to engage Congress to ensure not only that our targeting, detention and prosecution of terrorists remains consistent with our laws and system of checks and balances, but that our efforts are even more transparent to the American people and to the world.”

(President Obama, State of the Union Address, February 12, 2013)

If these remarks reflect the genuine views of the President and his close advisors (and I have every reason to believe they do), why, then, is such responsibility and transparency — acknowledgement of and details about U.S. involvement — so rarely forthcoming when it comes to the use of lethal force in counterterrorism operations?

As I’ve suggested in earlier posts, sometimes such acknowledgement is difficult, if not impossible, because an ally may have conditioned its consent to, and/or cooperation with, U.S. counterterrorism efforts on a guarantee that the U.S. will not acknowledge its role in the use of force.  In such cases, greater transparency can only be achieved if diplomatic practices change, and the United States becomes less willing to make such promises of categorical nonacknowledgement.  That’s much easier said than done, however; such a development in diplomatic practices will occur, if at all, only gradually, and over an extended period of time.

In other contexts, however, there are no such broad diplomatic limitations–which is why, for example, the President and the General Counsel of the Pentagon have formally acknowledged that the U.S. has used lethal force (taken “direct action”) in Yemen against al Qaeda in the Arabian Peninsula (AQAP), and in Somalia against individuals who are part of al Qaeda forces.

Why, therefore, can’t the United States be more forthcoming about the details of its direct actions in those nations?  For example, why can’t the government identify the targets of such strikes; explain why those persons were subject to the use of force; describe whether and how the strikes comported with the President’s rules for targeting outside the Afghan theater, such as an expected “[n]ear certainty that non-combatants will not be injured or killed” and an “assessment that capture is not feasible at the time of the operation”; disclose how many civilians were inadvertently killed or wounded; describe how the U.S. complied with international humanitarian law and sovereignty norms; describe U.S. investigative efforts and conclusions; rebut any inaccurate allegations of legal violations and/or extensive civilian casualties; etc.?  In some cases, diplomatic considerations or, more frequently, the protection of sources and methods, might make it impossible to offer complete transparency on all of these matters.  But presumably such obstacles would not stand in the way of transparency on all of these questions, all of the time.

In previous posts, especially this one, I’ve tried to explain that it is not the law that prevents such transparency.  Instead, it might be entrenched agency culture, or traditional practice, that stands as an obstacle to disclosure of such details in many cases.

Whatever the sources of the practice, it is having significant costs, particularly as much of the world comes to believe that U.S. strikes result in extensive civilian casualties, or do not comport with international law.  Moreover, the failure to provide such detail about our use of force also makes it difficult for the U.S. to establish and defend legal and customary norms that would cabin the future use of force by other nations, as well as by future U.S. executives.  It is difficult to complain that others are not complying with the proper constraints when one is not forthcoming about whether and how the U.S. itself has made efforts to respect those constraints.  Accordingly, U.N. Special Rapporteur Ben Emmerson has, for example, urged the United States “to declassify, to the maximum extent possible, information relevant to its lethal extraterritorial counter-terrorism operations; and to release its own data on the level of civilian casualties inflicted through the use of remotely piloted aircraft, together with information on the evaluation methodology used.”

Thanks, then, to Bobby Chesney for flagging this potentially very important Wall Street Journal story by Julian Barnes and Siobhan Gorman last week.  Barnes and Gorman report that “[t]op military officials” are pressing for permission to “more openly discuss strikes in Yemen,” and to publicly defend such strikes “against criticism in the U.S. and abroad,” after “the military concluded last year that long-standing U.S. secrecy surrounding drone operations has bolstered support for al Qaeda in places like Yemen.”

The proposal, said to have been initiated last December by Lt. Gen. Joseph Votel, the head of military’s Joint Special Operations Command, and supported by Gen. Lloyd Austin, the head of U.S. military operations in the Middle East, awaits approval from Secretary of Defense Hagel and the President.  There’s no reason to think that Secretary Hagel will oppose the idea.  And in any event, the President is very likely to approve it, since by all accounts he has been urging such greater transparency for quite some time.  Caitlin Hayden, a National Security Council spokeswoman, is quoted as saying that the White House wants to provide the public with “a better understanding of U.S. assessments of civilian casualties.”  And military leaders apparently now agree that such a change of practice is imperative:

In pushing for the change, Gen. Votel and Gen. Austin referred to a December strike in Yemen.  They viewed the attack as a clean strike on members of al Qaeda in the Arabian Peninsula, but some in Yemen said the U.S. missiles struck a wedding party, killing many civilians.  The strike fueled anger in Yemen and global criticism of the U.S., which the two generals believed was unwarranted.  Military officers were frustrated that secrecy rules were preventing them from adequately defending the U.S. military’s actions.  “The enemy gets new traction when we are silent following these strikes,” said a defense official.

Moreover, Barnes and Gorman report that the Yemeni government also “supports a U.S. move toward more transparency,” in order to be able to respond to the practice of militants “routinely spread[ing] misinformation about strikes.”

So what is the possible hold-up, particularly if it is true that “the administration unanimously supports greater transparency”?

That’s where the story gets a bit fuzzy.  There appear to be three possible concerns.

First, Barnes and Gorman report that “some officials” worry “that greater transparency would lead to restrictions on America’s ability to conduct operations overseas,” since “other regional allies”–i.e., nations other than Yemen, presumably–“prefer to avoid attention to their cooperation with the U.S.”  It’s not clear to me why this consideration would stand in the way of going forward with the new transparency norms.  The new practices presumably would not apply in any nation where the U.S. had promised not to acknowledge its use of force.  The whole point of the Pentagon’s initiative, according to the Barnes/Gorman story, is to promote greater granular transparency in those nations, such as Yemen, where the U.S. already has acknowledged that it is engaged in direct actions.

Second, Barnes and Gorman assert that “meaningful transparency would require an operational shift of authority for conducting the bulk of strikes from the Central Intelligence Agency to the Pentagon.”  They cite “Pentagon officials” as saying that if the military were to carry out more of the strikes, that would give the U.S. “a freer hand in discussing operations and defending the U.S. and allies in the Yemeni government against allegations that civilians were injured in a strike,” since alleged attacks by the CIA “technically are covert and cannot be discussed publicly.”

As I have tried to explain, although this view is widely held in some quarters, it is not correct–at least not as far as the law is concerned.  Operations that previously have been performed (by any agency) pursuant to the “covert action” procedures of 50 U.S.C. 3093 can be publicly acknowledged if the President chooses to acknowledge them.  More to the point, any CIA involvement in the strikes need not be covert, or unacknowledged, in the first instance.  As the current CIA General Counsel recently explained to Congress (see page 6 of the Krass Q&A), the CIA has the authority to engage in overt, or acknowledged, operations.

To be sure, the CIA traditionally has not acknowledged its involvement in operations overseas–whether it’s covert action or traditional intelligence-gathering.  That reluctance, however, is not a function of U.S. law, but instead of other considerations–mostly, I suspect, of a longstanding institutional assumption that categorical nonacknowledgement is the best way of protecting the  sources and methods that truly must remain secret.  (I have my doubts about whether such an insistence on categorical nonacknowledgement is in fact the best way for the agency to protect its genuine secrets in the long run; skeptical judges are now beginning to push back, for instance, against overbroad claims of the need for absolute nonacknowledgment, and becoming more skeptical of the agency’s representations generally.  But that’s a complicated topic for another day.)

For present purposes, the important point is that, to the extent there are those in the government who believe, for whatever reason, that a significant shift of operational authority to the Pentagon is necessary in order to realize the desired levels of transparency, such an operational shift reportedly is under way already:  “Officials said the military and CIA are moving toward a model that would create a clearer division of labor, in which the spy agency has heavy involvement in locating suspected militants, but the military is responsible for most strikes,” Barnes and Gorman report.  “That could mean the CIA continues to fly drones under its own authority for intelligence collection and conducting reconnaissance on targets, but allows the military’s planes to strike the target.”  Whether or not such a reorganization is legally necessary in order to proceed with the Votel/Austin transparency proposal, it should help further clear the way for the Secretary and the President to approve that proposal.

Finally, Barnes and Gorman write of a concern that the CIA be able to maintain a reported “ability to strike some targets in situations when the U.S. wanted to preserve its ability to deny involvement.”  Once upon a time, this–deniability–was a (if not the) principal reason for assigning a particular task to the CIA rather than to the military:  As I understand the history, after the Vietnam War the Pentagon (understandably) developed an institutional norm that it would no longer affirmatively deny any operations that it had conducted.  Might DOD “neither confirm nor deny” particular operations? – sure.  But no outright false denials.  Therefore, in cases where the U.S. wished to preserve the ability to actually deny its involvement, the operation would be conducted by the CIA.

I don’t know whether this is still a consideration that has any significant effect on operational decision-making.  It appears that in cases where the U.S. has a need not to acknowledge its involvement, the norm has become to neither confirm nor deny, regardless of the lead agency:  At least in the context of the use of force, outright specific denials are now rare, perhaps a thing of the past.

In any event, to the extent the U.S. does wish to preserve the ability to specifically deny involvement in any direct actions in Yemen, those operations presumably would be exempt from the proposed new disclosure norms in the first instance.  Accordingly, this consideration should not be much of an obstacle, either, to approval of the Pentagon’s transparency proposal. 

About the Author(s)

Marty Lederman

Professor at the Georgetown University Law Center Follow him on Twitter (@marty_lederman).