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Secret Law, Targeting, and the Problem of Standards: A Response to Dakota Rudesill

In his recent posts and an article, Dakota Rudesill tackles the phenomenon of secret law. Dakota persuasively describes a growing body secret law, which he defines as “legal authorities that require compliance that are classified or otherwise unpublished,” and explains this growth across all three branches of the US government. Dakota then offers a series of recommendations that accepts some degree of secret law, but seeks to govern it more fully, deliberately, and consistently. His recommendations include adopting principles to cabin secret law’s growth, establishing notification requirements to signal the creation of new unpublished legal authority by the Executive Branch (to ensure secrecy remains shallow, and not deep), and strengthening accountability through presumptive sunset and declassification dates.

Dakota’s comprehensive treatment of this subject provides a valuable framework for both understanding and addressing legal secrecy. I would, however, offer another perspective on the phenomenon of secret law, focusing on lethal drone operations by the United States. As I argue in a recent article, drone strikes illustrate how what is commonly referred to as “secret law” can also be understood as a problem of broad legal standards that resist liquidation into more specific rules. While there are substantial similarities between our analyses, the variations suggest the utility of multiple approaches moving forward.

Lethal drone strikes are one of most frequently-cited examples of secret law. Indeed, there remains tremendous secrecy surrounding drone operations, including the circumstances under which individuals have been killed by strikes. This secrecy persists despite the recent steps towards greater transparency with the release of the Executive Order on civilian casualties and the Summary of Information by the Director of National Intelligence (DNI) on drone strikes conducted outside areas of active hostilities (such as Libya, Pakistan, Somalia and Yemen).

Yet, the descriptor of secret law does not fully capture the phenomenon of overly broad rules shielded from public scrutiny. Since then-State Department Legal Advisor Harold Koh’s speech at the annual meeting of the American Society of International Law in 2010, the basic legal framework for US drone operations has been public. Based on that framework, elaborated in subsequent speeches by senior administration officials (see here and here), we see that the US engages in lethal targeting under the 2001 Authorization for Use of Military Force (AUMF) and pursuant to the international law of armed conflict and self-defense. The framework, in brief, maintains that:

  • The US remains engaged in a non-international armed conflict (NIAC) with al Qaeda and associated forces that is global in scope.
  • The AUMF authorizes the President to use military force against those enemy forces.
  • The President also has authority as under Article II of the Constitution to protect the nation from an imminent threat of attack.
  • The President’s authority to use lethal force is not limited to conventional battlefields.
  • The President may use such force against non-state actors in another country if that country either consents to its use or is unwilling or unable to contain the threat those actors pose.
  • All uses of force must conform to the international law of armed conflict, including the principles of necessity, distinction, and proportionality.

While these accounts do not provide a granular discussion of legal authorities, they do offer a road map to the legal architecture underlying lethal drone operations conducted by the United States.

President Obama, moreover, issued a Presidential Policy Guidance (PPG) in May 2013 indicating that the US would adhere to heightened requirements when it conducted lethal strikes areas outside areas of active hostilities. The fact sheet released to the public broadly described the standards and procedures for strikes in such areas, noting that lethal force will be used only as a last resort (in circumstances where capture is not feasible and no other reasonable alternatives exist to address the threat effectively) and where there is near certainty that no civilians will be injured or killed.

This means that as a general manner, there is no secret about the US’ legal position on targeting operations. Yet a continuing problem—and what helps fuel claims about secret law—is that the law, whether expressed as a binding legal requirement or a policy-based mandate under the PPG, remains defined at a high-level of generality. To borrow from the rules vs. standard debate, the law is expressed through indeterminate standards that resist being expressed via more concrete rules applied to specific cases. There is presently no mechanism, or at least none available to the public, to determine how the law is being applied to particular facts. The result is a deep and continuing sense of legal ambiguity.

The President’s Executive Order on civilian casualties and the DNI’s Summary of Information provide some additional transparency. As Sarah Knuckey observes, the summary for the first time provides the US government’s estimate of the number of “noncombatants” and “combatants” killed since 2009 in drone strikes conducted outside Afghanistan, Iraq, and Syria (all deemed areas of active hostilities), while the Executive Order states that the government will investigate civilian casualties, acknowledge responsibility for civilian casualties and offer ex gratia payments to victims (albeit with unspecified exceptions), and report annually on the number of strikes and noncombatant and combatant deaths.

Yet, these steps remain limited. As Sarah also notes, the administration has not supplied any “[i]ndividualized, case specific information . . ., even in redacted form to take into account security, intelligence-gathering, and confidentiality concerns.” The absence of such information not only fails to respond to the particular claims of civilian harm advanced by victims and NGOs, both of which dispute the government’s estimated number of civilian casualties. It also perpetuates the status quo of legal indeterminacy. The law may be public, but it remains embodied by generalized terms divorced from any process capable of expressing it concretely. Without such a process, the public’s understanding of important questions such as what defines a civilian (or noncombatant, assuming the administration is using the terms interchangeably), how broad is the scope of self-defense as a rationale for targeting, and how jus in bello principles like proportionality are applied on the ground, remain opaque.

The traditional way to achieve greater determinacy in legal standards—and thus help fortify the limitations they seek to provide—is to apply those standards to particular cases in a judicial or quasi-judicial process. Take, for example, law-of-war detention under the AUMF. Regardless whether one agrees with the specific outcomes courts have reached, the Guantanamo habeas litigation has helped particularize broadly articulated detention standards, fleshing out, for example, who may be held and under what circumstances. Thus far, however, US targeting decisions have remained immune from legal challenge. Lower courts have dismissed both ex ante and ex post challenges to targeting on justiciability grounds. While such litigation inevitably poses challenges due to considerations regarding classified or other sensitive information, courts have found ways to address similar concerns in other contexts. Ex post civil actions, in particular, could provide a mechanism for providing greater clarity and content to what remain generally articulated legal standards. (See, for example, Steve Vladeck’s proposal along such lines here). While such review would not supplant the other measures Dakota proposes, it could help address the indeterminacy resulting from legal standards that, in areas like lethal drone strikes, resist particularization and thereby contribute to the perception of secret law.

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About the Author

is a Professor of Law at Seton Hall University School of Law. Follow him on Twitter (@JonathanHafetz).