Drones, the FATA, the President’s remarks . . . and the prospect of greater transparency

Editors’ NoteThis post is the latest installment of our “Monday Reflections” feature, in which a different Just Security editor examines the big stories from the previous week or looks ahead to key developments on the horizon.

In the New Yorker a few weeks back, Steve Coll published “The Unblinking Stare,” a characteristically clear, informative and balanced account of the United States’ reported use of drones in the Federally Administered Tribal Areas (FATA) of Pakistan.  For whatever reason, the piece has not gotten a lot of attention, as far as I know, though it ought to.  Coll doesn’t break a lot of dramatic new ground; but he offers up a slew of illustrative details, and (assuming Coll’s sources are reliable) the article pulls the narrative together as effectively as any single account I’ve seen.  I highly recommend it.*

To his credit, Coll sets out to provide a thorough assessment of all the costs and benefits, as they have evolved over several years, in what he describes as “the C.I.A.’s drone war in Pakistan.”  He focuses upon questions such as whether drones (because of their precision) more effectively respect humanitarian norms, and result in fewer collateral casualties, than do other modes of lethal force; whether such technological precision might nevertheless engender “a false impression of exactitude”; and whether and to what extent “hovering” drones instill a sense of terror in local populations–a distinct harm that ought to be taken into account in any balancing, even if drones are more discriminating than weapons launched from afar.

Most importantly, Coll offers a detailed account of the evolution of the government’s treatment of unintended civilian casualties.  “It seems clear,” he writes, “that, over time, the Administration’s record improved significantly in avoiding” such casualties.  For example, he describes how civilian casualties diminished after the Administration shifted its focus in 2011 from strikes on guesthouses, or hujras (where residents may have little practical choice but to house al Qaeda and Taliban commanders), to strikes on militants’ vehicles.  And he includes an important development that I had not seen reported previously:  According to the Bureau of Investigative Journalism, there hasn’t been a single documented civilian casualty as the result of a Waziristan drone strike in the almost two years that John Brennan and Avril Haines have been in charge at the CIA.  As Coll tells it, that apparently is not a mere coincidence, but is instead the result of enhanced efforts, led by those officials, to prevent such collateral harms.

As Coll repeatedly emphasizes, however, his account, like all others about drones in Pakistan, is significantly and necessarily hampered by the fact that the United States government itself has been so unforthcoming about such alleged operations in the FATA.  Coll reports several very interesting third-hand accounts about internal U.S. assessments of civilian casualties, for example–but there’s almost no way for him to gauge the accuracy of those assessments, or for the U.S. government itself to explain or defend them, for that matter, since it’s a subject that the government has decided not to discuss on the record at all.  Coll also repeatedly refers to things he has been told by CIA or other Administration officials, and to, e.g., “the C.I.A.’s position” on civilian casualties and the “Obama Administration’s position” on the factual predicates for so-called “signature strikes”; but he is unable to offer any official or precise explanations or numbers that might support such internal claims, because no one is authorized to speak on the record.

This lack of forthrightness matters a great deal, Coll emphasizes, since civilian casualties “are not only a moral issue; they constitute a front in a social-media contest over justice and credibility.”  The United States might well lose that contest, Coll explains, because of its inability to engage in the conversation except through anonymous leaks of unknown (and thus suspect) credibility.  “The Obama Administration might have benefitted from describing in public how it was adjusting tactics to spare innocent lives,” Coll writes; but instead, secrecy “has defeated public candor and accountability.”

It’s therefore worth flagging a potentially important recent development, one that might signal a movement toward greater acknowledgement and transparency of U.S. operations abroad, including perhaps in the FATA:

As I’ve discussed in previous posts, although critics and supporters of U.S. counterterrorism efforts often disagree about the wisdom and legality of various aspects of U.S. practice, the one thing they virtually all agree upon is that the United States (and other nations) should be more forthcoming regarding the details of their use of lethal force, including the use of drones for targeted killings.  See, for example, the reports of U.N. Special Rapporteurs Emmerson and Heyns, and of the Stimson Task Force on Drone Policy.  Most recently, the Stimson Report persuasively described the significant advantages that the United States could realize if it were to be more transparent about its use of force–not only in terms of securing international and domestic legitimacy, but also so that the U.S. might establish and defend legal and customary norms that would cabin the future use of force by other nations.  As David Cole writes this week, “as long as the program and its contours [are] secret, people lack[] clear reasons not to fear the worst. . . .  [C]andor is necessary to counter misinformed opposition and legitimize drones’ beneficial uses.”

For these and other reasons, President Obama himself has concurred that the U.S. must make greater efforts decrease secrecy concerning its use of force.  In his 2013 State of the Union Address, for instance, the President promised to continue efforts 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.”  Accordingly, there has been a recent movement within the Executive branch toward more transparency–or acknowledgement, at a minimum–with respect to the U.S.’s use of force in Yemen, Somalia and Iraq.  (I wrote about one such DOD initiative, for example, back in May.)

When it comes to Pakistan, however, it’s generally been a different story–as Steve Coll laments, there has remained a wall of silence as to operations in the FATA, even though virtually the whole world believes that the U.S. has been engaged in a drone campaign there.  Everyone has had an opportunity to offer accounts and assessments of that campaign . . . except the United States Government.  Detailed reports that the United States has been engaged in the use of force in the FATA go back well into the Bush Administration; indeed, several official U.N. reports are devoted to the subject.  Until recently, however, the United States government itself has rarely if ever officially acknowledged even the basic question of whether or not it has used drones, or other forms of lethal force, in Pakistan, with the exception of “Operation Neptune Spear,” in which U.S. forces killed Osama bin Laden.**

What explains this stark discrepancy?  As I’ve elaborated in previous posts (such as this one), no matter how forthcoming the President and other officials wish to be, achieving governmental transparency is much easier said than done in some contexts, both because of the need to protect sources and, most importantly, because of widespread diplomatic practices and arrangements that are dependent upon promises of nonacknowledgement.  Efforts to make fundamental changes in such practices will likely be met with a great deal of resistance:  It’ll be an uphill effort, and slow going.

Which is all the more reason to be encouraged by recent remarks of President Obama, largely overlooked in the press, that suggest we’re possibly on the verge of something of a breakthrough when it comes to United States government candor about operations in Pakistan.  First, in public remarks on September 5, the President said that we will “hunt down” ISIL leaders who plot attacks “in the same way we’re doing with remnants of al Qaeda in the FATA.”  “If you look at what happened with al Qaeda in the FATA, where their primary base was,” explained the President, “you initially push them back.  You systematically degrade their capabilities.  You narrow their scope of action.  You slowly shrink the space, the territory that they may control.  You take out their leadership.”  

And then, even more significantly and more specifically, at the very outset of his formal speech to the nation about ISIL on September 10, the President said this:  “Over the last several years, we have consistently taken the fight to terrorists who threaten our country.  We took out Osama bin Laden and much of al Qaeda’s leadership in Afghanistan and Pakistan.”

Of course, such presidential acknowledgement of U.S. use of force in Pakistan does not mean that all of the details of such operations in the FATA can or will be publicly discussed:  presumably protection of sources and diplomatic arrangements would continue to impose at least some constraints.  Nevertheless, these quite deliberate, official presidential acknowledgments that the U.S. has used lethal force in Pakistan might well be a sign that U.S. operations there can now be discussed, or at least acknowledged, by U.S. officials more openly.  (As I’ve explained in earlier posts, and as the Operation Neptune Spear example demonstrates, federal law itself does not require nonacknowledgement of such actions, even if it is true, as Coll reports, that they have been undertaken pursuant to a presidential covert action finding.  No law precludes the President from deciding that something that was once covert, or unacknowledged, should not remain so.  And, notably, as Coll reports, the CIA has already permitted its former Chief Counsel, John Rizzo, to describe in his recent book (p.174) the fact that the September 17, 2001 presidential covert-action finding (or “Memorandum of Notification,” also discussed at length in the new SSCI report on the CIA interrogation practices) included a short paragraph authorizing the use of “lethal action” against al Qaeda terrorists.)

If in fact the President’s remarks do presage a more robust official account of U.S. operations in the FATA, that would be a very welcome and constructive development.  

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*Just to be clear, nothing in this post is intended to confirm whether or not Coll’s account is accurate in any respect, based on any information I might have learned while in the government.  Like other government officials, I am obligated not to discuss any classified or otherwise confidential information to which I might have had access.  (Indeed, as discussed later in this post, that’s one of the principal topics of Coll’s piece.)  Coll’s past work, however, suggests that he is a very careful reporter who tends not to be unduly credulous of any particular source; and this recent article appears to be similarly well-sourced and appropriately cautious and balanced in its conclusions.

**  Former Ambassador to Pakistan Cameron Munter is one of the few public officials who has, for some reason, openly asserted that the United States–and the CIA in particular–has engaged in drone strikes in the FATA.  Steve Coll quotes him to similar effect in this latest New Yorker article.

  

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About the Author(s)

Marty Lederman

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