Whatever became of the Votel transparency proposal concerning drone strikes in Yemen?

The Open Society Justice Initiative yesterday released a report alleging that nine U.S. drone strikes in Yemen between May 2012 and April 2014 each resulted in civilian casualties, 26 in total.  Four of those strikes, allegedly resulting in eight civilian casualties, occurred subsequent to the President’s directive in May 2013 that “[b]efore any strike is taken [outside the Afghan theater], there must be near-certainty that no civilians will be killed or injured — the highest standard we can set.”  [This sentence has been corrected to clarify that only some of the strikes in question occurred after the President issued his policy guidance.]

[UPDATE:  Of course, even if the OSJI Report is factually accurate, that would not necessarily mean that the President’s Directive is not being followed, or that it is ineffective in most cases.  As the Report itself explains, “[t]o be sure, it is possible—owing to a mistake or an unforeseeable change of circumstances that manifests between the ordering of a strike and its occurrence—for civilians to be killed or injured despite a
near-certainty prior to the strike that this would not happen.”

Nevertheless, the Report does raise concerns about the effectiveness in implementing the President’s “near-certainty” standard.  Therefore it would be very helpful to hear the government’s account of the four strikes in question–such as whether civilians were in fact killed; if so, why the intelligence had indicated that there would be no such casualties (and whether such intelligence was therefore flawed); and what steps were taken in response to such civilian deaths, if any.

A Scott Shane story about the OSJI Report in the New York Times this morning quotes a National Security Council spokesperson, Ned Price, as saying that “in those rare instances in which it appears noncombatants may have been killed or injured, after-action reviews have been conducted to determine why,” and that condolence payments were sometimes given to those injured and families of those killed.  Price added, however, that he was otherwise “not in a position to comment on specific cases.”

Why not?

Almost a year ago, I blogged about the importance of a then-pending proposal 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, that would allow the military 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 . . . that long-standing U.S. secrecy surrounding drone operations has bolstered support for al Qaeda in places like Yemen.”  The proposal was first reported in a Wall Street Journal story by Julian Barnes and Siobhan Gorman, who described the strong support for the proposal within both DOD and the Yemeni government.  “Military officers were frustrated that secrecy rules were preventing them from adequately defending the U.S. military’s actions,” wrote Barnes and Gorman.  “The enemy gets new traction when we are silent following these strikes,” said a defense official.

Reportedly, as of May 2014 the proposal was merely awaiting approval from the Secretary of Defense and the President, both of whom favored such increased transparency regarding the details of drone strikes in Yemen.  Barnes and Gorman offered several reasons why certain officials were opposing the Votel proposal; but as I explained in my earlier post, those arguments did not appear to be very compelling.

What has become of the Votel transparency proposal?  I have not seen any reports of it in almost a year; and NSC spokesperson Price’s comments about the new OSJI allegations–his refusal to discuss any specifics of drone strikes in Yemen–suggest that the Votel proposal has not yet been implemented.  Shane quotes Price merely as saying that administration officials “continue to work diligently toward” the goal of greater transparency.  Here’s to hoping that such diligence results in a much more detailed DOD response to the OSJI Report. 

About the Author(s)

Marty Lederman

Professor at the Georgetown University Law Center. He was Deputy Assistant Attorney General at the Office of Legal Counsel from 2009-2010, and Attorney Advisor at the Office of Legal Counsel from 1994-2002. You can follow him on Twitter (@marty_lederman).