This week, the Senate Intelligence Committee approved the Intelligence Authorization Act for Fiscal Year 2014. The legislation contains an important section which would require the President to publicly report the numbers of combatants and civilians killed by the U.S. in its targeted killing operations.
The reporting that would be mandated by this section would be an important step toward improving transparency in U.S. targeted killings practice. This is particularly so given the significant discrepancies between the various publicly available civilian casualty databases and statistics, the range of statistics reported by Pakistan, and U.S. claims (without offering evidence, or its own counts) that the numbers are very low, and lower than counts by non-government actors. Various U.N. officials, foreign governments, a broad range of civil society, and many others, including former U.S. Department of State Legal Advisor Harold Koh (in a recent Just Security post), have called for the publication of such basic information. It is also important that these potential reporting requirements are coming from Congress itself, which many have called for to be more rigorous in its oversight of executive action in this area.
Below, I briefly highlight some of what the section appears to include or exclude, and ambiguities in its current wording:
Requirement to report basic statistical information. The section requires the President to report only basic statistical information on the total numbers of combatants and civilians killed or injured. It does not require public reporting about: (a) how these numbers were arrived at, (b) the legal and factual basis for the strikes, or (c) the results of any investigations into civilian harm.
No explicit requirement to report on past years. The section appears to be forward looking only, and does not contain a requirement that deaths in past years be publicly accounted for. This is a significant accounting gap, given long-existing and ongoing controversies about civilian casualty rates in the years since the targeted killings program began.
Applies to drone use of force only. The reporting requirement applies only to targeted lethal force “by remotely piloted aircraft,” and not to any U.S. targeted killing operation. This language would exclude lethal force by ground forces, or by cruise missiles (as used in the well-known 2009 al-Majalah strike in which 41 people were allegedly killed, including 21 children). The language is ambiguous as to whether it covers (but could be read to exclude) a case where drones were used for surveillance relevant to targeting, but the actual use of force was carried out through other means.
Inclusion or exclusion of unintended deaths? The section contains ambiguous language with respect to the reporting requirements for deaths not specifically intended. It requires reporting on the “number of combatants killed or injured … by the use of targeted lethal force” and reporting on the “number of noncombatant civilians killed or injured … by such use of targeted lethal force.” The section defines “targeted lethal force” as force directed “with the specific intent” of killing a particular person or group. Would the section require reporting of a case where a civilian suddenly appears and is unintentionally killed (as described by former drone operator Brandon Bryant here)? Or a case where, post-strike, more deaths were recorded than anticipated pre-strike? The “by such use of” language may be read to broaden the reporting requirement to any known deaths (rather than reporting only any specifically intended deaths), but the current formulation is unnecessarily ambiguous. (The language also recalls the similarly ambiguous language in Attorney-General Holder’s May 22, 2013 letter, in which he stated that three U.S. citizens were killed but “not specifically targeted” by the U.S.).
Explicit exceptions: targeted killings in Afghanistan combat operations; or carried out within a declared war; or pursuant to an AUMF. The section contains three reporting exceptions. The first excludes reporting on targeted killing operations in Afghanistan before combat operations end (and thus foresees the possibility of continued targeted killings after formal combat operations end there). The exception does not use the language of the President’s May 2013 NDU speech of “beyond the Afghan theater” or the Presidential Policy Guidance language of “outside areas of active hostilities,” and thus would appear to mandate reporting for targeted strikes in Pakistan (where the applicability of the Presidential Guidance is unclear). The second and third exceptions appear aimed at excluding mandated reporting on targeted killings that may take place in future declared wars or future force that is congressionally authorized. Presumably, “future” in the sub-section is meant to qualify both war and an AUMF. But the wording here is also unnecessarily ambiguous: “future” appears before and clearly qualifies “war,” but it does not clearly qualify an AUMF, and the wording leaves open whether the section could be read to exclude reporting for any force currently authorized.
SEC. 312. UNCLASSIFIED ANNUAL REPORT ON THE USE OF TARGETED LETHAL FORCE OUTSIDE THE UNITED STATES.
(a) REQUIREMENT FOR ANNUAL REPORT.—For each year, the President shall prepare and make public an annual report that sets forth the following:
(1) The total number of combatants killed or injured during the preceding year by the use of targeted lethal force outside the United States by remotely piloted aircraft.
(2) The total number of noncombatant civilians killed or injured during the preceding year by such use of targeted lethal force outside the United States.
(b) TARGETED LETHAL FORCE DEFINED.—In this section, the term ‘‘targeted lethal force’’ means the act of directing lethal force at a particular person or group with the specific intent of killing those persons.
(c) EXCEPTION.—A report required by subsection (a) shall not include—
(1) any use of targeted lethal force in Afghanistan prior to the end of combat operations by the United States; or (2) any use of targeted lethal force in a foreign country described by a future declaration of war or authorization for the use of military force.