Transparency and Lethal Operations: A Checklist of What’s Public and What’s Still Secret [Updated]

Transparency is the touchstone for many debates about US lethal operations against Al Qaeda and associated forces. This post contains a checklist of sorts—cataloguing what information has been officially made public, and what information has not.

The checklist is meant to inform public debates and discussions. For instance, the list is partly a corrective to commentary that mistakenly suggests particular information is ambiguous or not public, when it is relatively clear and has been officially disclosed (e.g., elements of the definition of associated forces). And it is also a corrective to commentary that suggests that we have transparency on specific issues, when we don’t (e.g., II(6) below).

I do not take a position here on which information should be made public. There may of course be strong reasons for particular information to remain classified. The checklist simply provides an account of what the US government has or hasn’t disclosed. It is also important to note that on some of these issues, top US military officials are reportedly urging the administration to be much more transparent with the public.

(I plan to update this checklist as developments occur, and on the basis of reader feedback.)

I. Official, public information

1. Lethal operations have been conducted in Afghanistan, Somalia, and Yemen.

[DOD General Counsel Stephen Preston, Congressional testimony, May 21, 2014]

2. Identity of several individuals killed (especially in Afghanistan)

[also Attorney General Eric Holder, Letter to Senator Patrick Leahy, May 22, 2013, re: US citizens killed outside areas of active hostilities]

3. Test for associated forces: (1) must be organizationally linked to and working in collaboration with Al Qaeda; and (2) must direct hostilities against the United States.

[Jeh Johnson, then-DOD General Counsel, Speech at Yale Law School on February 22, 2012; see also Marty Lederman’s post; and Harold Koh’s post]

Application:
1)      Al-Qaeda in the Arabian Peninsula satisfies the test
[DOD General Counsel Stephen Preston, Congressional testimony, May 21, 2014]

2)      Al-Shabaab members targeted by the United States were part of Al-Qaeda (not necessarily as associated force)
[DOD General Counsel Stephen Preston, Congressional testimony, May 21, 2014; see also posts here (Mary DeRosa & Marty Lederman), here (Marty Lederman), here (Jen Daskal & Steve Vladeck) & here (me)]

4. Constitutional protections for U.S. citizens set forth in the OLC’s “Barron Memo” of July 16, 2010 (and DOJ White Paper, November 8, 2011):

The due process clause is satisfied when “[1] the target’s activities pose a ‘continued and imminent threat of violence or death’ to U.S. persons, [2] ‘the highest officers in the Intelligence Community have reviewed the factual basis’ for the lethal operation, and [3] a capture operation would be infeasible-and where the CIA and DoD ‘continue to monitor whether changed circumstances would permit such an alternative’…”

This constitutional analysis is also restricted to geographic areas with a significant presence and staging ground for enemy forces and from where attacks against the United States are launched [see #2 in this post].

5. Policy standards set forth in Presidential Policy Guidance (PPG) of May 23, 2013 (applicable only “Outside the United States and Areas of Active Hostilities”), including:

1) “Lethal force will be used only to prevent or stop attacks against U.S. persons”
2) “Near certainty that the terrorist target is present”
3) “Near certainty that non-combatants will not be injured or killed”
4) “An assessment that capture is not feasible at the time of the operation”
5) “An assessment that the relevant governmental authorities in the country where action is contemplated cannot or will not effectively address the threat to U.S. persons”
6) “Reservation of Authority.  These new standards and procedures do not limit the President’s authority to take action in extraordinary circumstances when doing so is both lawful and necessary to protect the United States or its allies.”
[White House Fact Sheet, May 23, 2013]

6. Designation of some “areas outside of active hostilities” for purposes of the May 23, 2013 PPG: includes Somalia, Yemen

[DOD General Counsel Stephen Preston, Congressional testimony, May 21, 2014]

7. [Update: C.I.A.’s operational role in targeting killing program in Yemen (h/t Katherine Hawkins)]

[OLC’s “Barron Memo” of July 16, 2010]

II. Lack of official, public information

1. No official acknowledgement of lethal operations in Pakistan

2. No official acknowledgement of specific strikes in Yemen

3. As a result of #1 and #2, there is no official US information (for Pakistan and Yemen) on:

1) overall number of civilian casualties
2) reasons for civilian casualties in specific strikes
3) information about ex-post investigation and review process
4) information about whether and how U.S. pays reparations or amends to civilians
5) information about internal disciplinary measures, if any, taken in response to any violations of law or policy by US personnel
6) no official response to major reports by Amnesty International (Pakistan) or Human Rights Watch (Yemen)

[See also Sarah Knuckey’s post]

4. Overall number of civilian casualties in Afghanistan

5. The May 23, 2013 PPG: The administration has not made the actual PPG public; it has made public only a White House “Fact Sheet,” which summarizes and describes the PPG.

6. Whether Pakistan (especially FATA) is an “area of active hostilities” for purposes of the May 23, 2013 PPG standards

[see post by Thomas Earnest and me; and post by Andy Wright]

7. No specific details on definition and factors that determine if capture is “not feasible” for purposes of the May 23, 2013 PPG standards [see op-ed by Sarah Knuckey and me] and for constitutional rules concerning U.S. citizens [see Jen Daskal’s post]

8. Substantive criteria for signature strikes

[But see footnote 1 of White House Fact Sheet]

9. Internal executive process for targeted killings — e.g., procedures and burden of proof (quantum of evidence) for proving membership in Al Qaeda/AQAP and for establishing imminent threat

[see Jen Daskal’s post and #2 in my earlier post]

10. Legal standards for determining membership in Al Qaeda including:

1) whether targeting on the basis of membership in group includes, for example, financiers whose activities would not qualify as “direct participation in hostilities” or a “continuing combat function” under the ICRC’s criteria
2) definition of “senior” membership [see #1 in this post]

11. Specific statutory/executive authority for C.I.A. use of lethal force and terms and conditions for covert action

[but see Stephen Preston, then-C.I.A. General Counsel, Speech at Harvard Law School, April 10, 2012]

12. C.I.A. vs. DOD involvement and collaboration in drone operations, and reasons for delays in transferring control to DOD

13. Legal authority and compliance with PPG for US involvement in lethal operations against AQAP insurgents who pose an internal threat to Yemen’s government but no apparent direct threat to US persons?

[See posts here and here]

14. Whether the President has ever invoked the “Reservation of Authority” to the PPG, which appears to provide for a presidential override of the PPG restrictions [see #3 of this post]

  

About the Author(s)

Ryan Goodman

Co-Editor-in-Chief of Just Security, Anne and Joel Ehrenkranz Professor of Law at New York University School of Law, former Special Counsel to the General Counsel of the Department of Defense (2015-2016). You can follow him on Twitter @rgoodlaw.