Transparency on Targeted Killings: Promises Made, but Little Progress

Since President Barack Obama’s May 2013 counter-terrorism speech, attention to and criticism of US targeted killings practice and policy has notably dropped off inside the US.  But the secrecy that drove criticism of the program still exists today in key legal, policy, factual, and process areas.

This post outlines the focus of criticism in early 2013, the government’s response, and the core areas of continuing secrecy. 

Early 2013: Growing Pressure for More Transparency

Public criticism of the targeted killing program had its peak in February-May this year.  The burst of attention followed years of work and advocacy by many actors in the US and abroad, much of which was directed at the program’s excessive secrecy.  By early 2013, the US targeted killing program’s lack of transparency had become the central and most widely shared criticism, uniting diverse actors with otherwise conflicting views of the program’s ethics, legality, and strategic effectiveness.

Amidst this unprecedented intensive focus on drone strikes by the press, members of Congress, and American public, President Obama pledged in his February 2013 State of the Union address to be “more transparent to the American people and to the world” about the US targeted killings program.  Following further NGO pressure for more transparency, the promise was repeated in April by National Security Council spokesperson Caitlin Hayden, who added that while sensitive operational details would not be discussed, explaining drone policies was something to which the Administration was “committed,” and would do “as soon as we can.”  More specifically, John Brennan, during his nomination for the position of CIA Director, stated that he believed – “in the interest of transparency” – that the US “should acknowledge” if it kills “the wrong person,” and he stressed the seriousness with which government post-strike assessments of civilian harm were pursued.

As public and political pressure continued to build, White House officials announced that President Obama would give a major counter-terrorism speech at the end of May.  Many close observers hoped the speech would mark a significant turning point, and that the President would at last lay out the program’s basic facts, legal authorities, and policies.

The President’s May 2013 speech did directly address the targeted killings program, arguing in broad terms that it is legal, effective, wise, and moral.  Concurrently, the government also took two important concrete transparency steps.  First, Attorney General Eric Holder published a letter acknowledging that four US citizens had been killed, and provided some information about why the US believed it was lawful to target one of those citizens, Anwar al-Alwaki.  Second, the government published Presidential Policy Guidance on targeted killings, briefly setting out policies (not law) for when the US could target individuals outside areas of “active hostilities.”  The Policy Guidance states that strikes are not carried out unless there is a “near-certainty” of no civilian harm, a standard also referred to in the President’s speech (and hinted at in earlier Brennan statements).  Shortly afterwards, Secretary of State John Kerry stated that the US simply does “not fire” if it concludes that there would be collateral harm.

Some interpreted these efforts and the President’s speech to mark the beginning of improved transparency.  But despite transparency promises and expectations, many of the same, core concerns regarding undue secrecy remain. The President’s speech, the Policy Guidance, and Holder’s letter – because of textual ambiguities within each, and combined with events since – have largely failed to address these longstanding concerns, and in some important respects aggravated them.

Continuing Secrecy on Core Issues

Key areas in which transparency has not yet been forthcoming include:   

  • Who can be killed, where, and on what basis.  Demands for legal and policy information on who and when the US believes it can kill have long been at the center of calls for more transparency. Senior US officials, before 2013, delivered important speeches outlining the government’s views on the applicable legal frameworks for targeting.  But the speeches lacked detail, and left crucial legal questions unanswered.  Legal concepts key to understanding the scope of US targeting – like “imminence,” “associated forces,” and “directly participating in hostilities” – remain unclear (see this and this).  The relevant legal memos have still not been published, even in redacted form.  In addition, although President Obama’s speech and the published Policy Guidance set out strict rules for the use of force – stricter, in numerous respects, than the laws of war – they are not legally binding, and we do not know when they began to apply, or when the strict policy limits on killing may be relaxed (and if we will ever be told when they are).  And, crucially, we don’t know where the new guidelines actually apply (original assumptions by many outside government that they applied in Pakistan were later called into question).  Since Obama’s May 2013 speech, confusion about who can be targeted has at times increased (e.g. a “senior American official” stated in August that a security threat had “expanded the scope” of who could be targeted in Yemen).
  • Basic program facts, overall casualties, and statistical strike information.  The President admitted in his May speech that some civilian casualties have occurred.  But the government refuses to release even basic statistical information about the numbers of strikes or of those killed, or to disclose its own civilian casualty estimates, or strike locations.
  •  Specific strikes.  The US continues to say nothing at all, officially, about the facts of most strikes. When questioned about specific strikes since May 2013, senior officials have generally continued simply to decline to comment, refusing even to acknowledge whether the US was involved.   Given that the US publicly acknowledged in 2012 that it uses force in Yemen, it is not clear why the US continues to refuse to provide details on, at least, Yemen strikes.  During the July-August 2013 surge in Yemen strikes, public information (limited as it was) came largely from news reports quoting anonymous US and Yemeni officials.  Adding to confusion, the accounts in different outlets at times appeared contradictory (compare NYT, NBC, and ABC).  Reports of civilian casualties called into question the government’s “near-certainty” standard, but were left unaddressed by officials.  And although President Obama stated that the declassified information in Holder’s letter was to “facilitate transparency,” the letter does not explain why US citizens Samir Khan, Abdulrahman al-Awlaki, and Jude Kenen Mohammed were killed, saying only that they were “not specifically targeted.”
  •  Civilian harm – investigations, acknowledgment, redress.  There has been no public information on any government efforts this year to acknowledge civilian harm and provide redress.  I have previously listed just some of the strikes that raise particular concerns, none of which have been publicly acknowledged by the government; nor have the findings of any government investigations been released.  And despite assurances about post-strike investigations, I am not aware of US officials seeking testimony from alleged victims, their lawyers, or from NGOs or journalists who have investigated specific strikes.
  •  Transfer to DOD. Despite expectations in May 2013 that Administration efforts to promote transparency would include moving the program from the CIA to DOD, one of the last officials to publicly address this said that it may not happen “for years.”

The US government’s public statements and limited disclosures to date have been welcome steps towards transparency.  But they fall far short of what is necessary, and important core questions remain unanswered.

Last week, I posted on some of the targeted killings related advocacy efforts taking place over the next few months. Those include the possible visit of alleged drone strike victims (currently on hold because their lawyer’s visa application to the US has not been approved), and major NGO and UN reports expected in the weeks ahead.  As these put the spotlight back on the program, raising specific and credible concerns about individuals strikes, the government should renew its commitment to transparency and outline the tangible steps it will now take to be more transparent to the American people and the world.   

About the Author(s)

Sarah Knuckey

Associate Clinical Professor of Law at Columbia Law School, Director of the Human Rights Clinic, Co-Director of the Human Rights Institute, Former Special Advisor to the UN Special Rapporteur on Extrajudicial Executions (2007-2016) Follow her on Twitter (@SarahKnuckey).