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Analysis of the Stimson Drone Task Force Report

The Stimson Center Drone Task Force report published yesterday is a forceful critique of key aspects of current U.S. drone strike policy and practice.  Importantly, and unlike many prior reports critical of U.S. practices, the report was authored entirely by former military and government officials.

In this post, I lay out some of the report’s important contributions to current debates, connect the Stimson report drone strike critiques to the concerns long voiced by the international human rights community, and offer four specific areas which could be deepened or clarified in future Stimson Task Force work on these issues.

In a rebuke to commentators and officials who see only minimal costs to current U.S. practices, the report expresses an array of strategic, legal, and ethical near- and long-term concerns.  Strategic concerns include that U.S. practices may erode international norms on state sovereignty, increase anti-U.S. sentiment, create blowback, widen wars, and increase political instability. Important ethical and lethal concerns highlighted in the report include that U.S. practices challenge core rule of law norms, set dangerous international precedents, undermine democratic accountability, and are excessively secretive.

The report’s analysis of how current U.S. practice is inconsistent with rule of law norms is particularly valuable. The Stimson Center report adopts the U.S. Army definition of rule of law as:

“[A] principle of governance in which all persons, institutions and entities, public and private, including the state itself, are accountable to laws that are publicly promulgated, equally enforced and independently adjudicated, and which are consistent with international human rights principles.”

Applying this definition, the report concludes:

“Today, however, despite the undoubted good faith of US decision-makers, it would be difficult to conclude that U.S. targeted strikes are consistent with core rule of law norms.”

In adopting this broad rule of law perspective, the report moves public debate forward by effectively bringing to the fore fundamental, far-reaching accountability and legal system concerns.  Even if, the authors argue, one finds the U.S. government’s legal analyses about drone strikes “plausible,” current practices nevertheless challenge long-held American values. And in a particularly important passage, the report addresses these issues from the perspective of Yemeni and Pakistani civilians, raising concerns about the impact of U.S. practices on their security and daily lives, and acknowledging that such individuals have no meaningful access to justice in U.S. courts.

Thus, while the Stimson Center report’s authorship is unique in its military and intelligence expertise and executive government experience, the report itself actually contains many of the same critiques and concerns frequently raised by human rights NGOs and United Nations experts. The passage on civilian perspectives is also a clear indication that those Yemeni and Pakistani civilians – who have been, often at great cost to themselves, speaking and writing about the impacts of strikes, seeking accountability in U.S courts, and testifying before members of U.S. Congress – have undeniably been heard by U.S. policymakers.  A number of the Stimson Center recommendations – e.g. calling for a major government review of drone strikes, improved transparency, and transfer of authority from the CIA to the military – are also the same kinds of reforms repeatedly advocated by the international human rights community.  In the domestic U.S. context, human rights NGO and UN perspectives on targeted killings are sometimes framed as if they are “impractical” or “extreme,” even if internationally, they are firmly in the center of political discourse. In some ways, then, the Stimson report represents a clear marker of the mainstreaming of drone strike critiques in the United States.  Hopefully, it also signals the viability of real reforms in the near future.

In light of the fact that the Working Groups associated with the Stimson Taskforce are expected to continue work on these issues and to publish additional reports, I raise four specific areas that could be deepened or clarified in future work:

Engage with actual legal critiques of drone strikes. The report’s authors caricature legal critiques of drone strikes when they write: “we disagree with those critics who have declared that US targeted killings are ‘illegal.’”  The main human rights NGOs and UN experts who have been at the forefront of critiquing US drone policies have not argued that all targeted killings are necessarily or per se illegal.  (A position that would be untenable: whatever one’s views about the ethics or efficacy of these strikes, “targeted killing” describes a form of intentional, premeditated, individualized killing, and it is incontrovertible that such killings are permitted in certain, limited, circumstances). Instead of arguing that all strikes by the U.S. are illegal, human rights organizations have argued that particular policies and individual strikes are, seem to be, or are at risk of violating international law (See here, here, here, here, and here).  Human rights groups have, for the most part, argued against expansive and novel U.S. interpretations of key international legal concepts, and favored more conservative, traditional interpretations.  They have argued against U.S. interpretations of when and where an “armed conflict” exists, against elongated “imminence,” and against broad definitions of “associated forces” and “direct participation in hostilities.”  Some human rights groups have also expressed concern about particular practices like “signature strikes,” and “double-tap strikes.”  Many have also brought forward evidence of civilian harm in specific, particular incidents, contesting the legality of some strikes on a case-by-case basis.  Yet the Stimson report, after characterizing one side of the debate as claiming “all targeted killings are illegal,” engages in a generally superficial way with the specific legal critiques actually made by human rights groups. (I also think the report at times similarly mischaracterizes the other side of the debate. For example, it argues against the notion that drones are a “magic” “super-weapon.” But the bulk of experts typically considered drone “supporters” do not express the simplistic view that drones are some kind of panacea or cure-all for terrorism.)  These mischaracterizations appear to be the result of an effort to occupy the political “center.”  Like much writing about drones and targeted killings, this report seeks to distinguish itself both from the overly-enthusiastic “pro-drone” side and the overly-critical “anti-drone” side. (Who, or which writing actually represents such views is often unclear, as positions of others are often stated without citation). At times, however, this drive to claim the reasonable middle results in unfair or inaccurate representations of where much debate actually (already) exists.

Consistently name and distinguish the issues raised by “UAVs,” “drone strikes,” “targeted killings,” etc.  It has admittedly been difficult, for all of us engaged in these debates, to consistently and fairly name the objects of our analysis. Often, “drones” become a short-hand for something that really means “lethal strikes by the U.S. outside Afghanistan.”  Many of us are dissatisfied with the existing terms. “Drone strikes” does not adequately name the set of policies and practices that concern most critics, and can be both too limited (not all targeted killings are by drones) and too broad (many critics do not intend to address strikes in Afghanistan).  Similarly, “targeted killings” assumes a certain kind of lethal force, and poorly captures “signature strike” practices.  At certain points, it is unclear whether the Stimson report is intending primarily to analyze and guide “UAV policy” or “policies about killings carried out by the U.S. against alleged terrorists,” and seems to swap between focusing largely on issues raised by UAVs and issues largely raised by (counterterrorism) lethal operations.

Clarify views about disproportionate civilian casualties. Somewhat confusingly, the Stimson report authors write: “we do not believe that UAV strikes cause disproportionate civilian casualties.” That claim is not well-specified. Are the authors arguing that no drone strike has ever caused disproportionate civilian casualties? Or that, overall, the U.S. drone strike program has not led to disproportionate casualties? The former seems an impossible claim, given that evidence has been brought forward of numerous problematic strikes and that the U.S. has not provided case-specific contrary information. But the latter would be the wrong question: “disproportionate” civilian casualties are assessed on a strike-by-strike basis.  Proportionality in international humanitarian law (the laws of war) is a question of excessive civilian casualties versus direct military advantage in an attack; not a determination made with respect to the aggregate impacts of a series of distinct strikes over many years.

Deepen analysis of drone strike “post-strike reviews.”  The report presents DOD post-strike reviews – reviews carried out to assess specific drone strikes – in a very positive light.  On CIA reviews, the report notes that far less is known about specific processes. Given that neither DOD nor CIA reviews have ever been made public, it is impossible for those of us outside government to assess them properly. But it does appear that such reviews for drone strikes appear inadequate at least in one important respect: for important strikes in which many civilians were allegedly killed, NGO investigators, journalists, and family members with relevant information were not interviewed for the purposes of U.S. reviews. Future work by those with extensive military and intelligence experience could help clarify specifically what kinds of investigations could feasibly be conducted to gain a complete understanding of strike impacts.

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About the Author

is associate clinical professor of law at Columbia Law School, director of the Human Rights Clinic, co-director of the Human Rights Institute, and a Special Advisor to the UN Special Rapporteur on extrajudicial executions. Follow her on Twitter (@SarahKnuckey).