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What’s Actually New in the New Drone Strike & Military Force Disclosures?

Yesterday, President Barack Obama released a series of documents relating to the use of military force abroad, including a 66-page Report on the Legal and Policy Frameworks Guiding the United States’ Use of Military Force and Related National Security Operations.

The new report’s sections on the use of lethal force abroad are largely a compilation of what has already been made public through official government speeches and released government documents, and, as such, for experts, offer little new. Because it largely repeats prior speeches and documents, it also repeats their mistakes—President Obama is right to note in the memo released alongside the report that “there is still more work that can be done to inform the public.”  Although the report includes some new disclosures, it does not deepen transparency and democratic accountability in the manner so urgently needed in this area. Below, without providing a comprehensive analysis of the report, we briefly highlight some of the key gaps, welcome some of the new disclosures, and raise a note of caution in relation to disclosures of this kind.

Key areas that remain secret or unexplained

  1. The report offers little in the way of specific detail, with only generalized applications to particular countries. It should be underscored that almost all survivors and family members—especially those killed or injured far from traditional battlefields—suffer in limbo, without acknowledgement, accountability, or any semblance of justice.  
  2. The report does little to explain the effectiveness or otherwise of the U.S. targeted killing and drone strike program in furthering peace, rights, and security in the countries where strikes take place, or in the United States. The report does not explain the basis for the executive’s apparent view that the strikes are an effective tool in countering terrorism.   
  3. The report does not address how international human rights law applies to the lethal use of force abroad, a body of law binding upon the United States and with much more restrictive rules on the use of force than the rules on the conduct of hostilities in armed conflict, which the U.S. government uses to justify most strikes.
  4. While the U.S. government has—belatedly, and only following litigation and constant pressure for transparency—released the broad outlines of its legal reasoning, the precise details that are needed to properly assess the program remain unclear:
  • Numerous memoranda explaining the legal basis for specific strikes remain secret—these are crucial in order to understand exactly how the broad-brush standards and interpretations set out in the report are applied in practice—the summary of how these frameworks apply to certain countries are not sufficient.
  • Key terms relevant to understanding who, how, and in what circumstances the U.S. government can kill, are not clearly defined. These include an understanding of how the U.S. government assesses the following, for example:

a. What constitutes a “continuing, imminent” threat, how “near certainty” that civilians will not be harmed is assessed, and how “feasibility” of capture is determined, amongst other terms, all of which are pre-requisites for someone to be targeted under the Presidential Policy Guidance. There is a fuller explanation of how the U.S. government assesses imminence when acting in self-defense, but the report does not explain if these concerns differ from the requirement of imminence in the Presidential Policy Guidance;

b. It remains unclear in what circumstances the PPG applies—while the report restates, and even adds to the criteria for how it determines an area to be “outside of active hostilities,” more needs to be done to ensure that the scope of application for the PPG has meaningful parameters; and

c. How determinations are made that a government is “unable or unwilling” to combat a threat. This is crucial because, in the U.S. government’s view, it can carry out strikes in such circumstances without the consent of the host government. This unwilling or unable formulation is highly controversial—it does not appear as such in any legal instrument and does not codify a practice that the international community has widely accepted. The report wrongly suggests that it is a rule provided for in international law. As has been highlighted previously, the details matter—what if a government is willing to combat the threat but not in the same timeframe that the U.S. government wants, for example?

5. The report repeats the July 1st Executive Order on civilian casualties—a welcome development—but sadly contains few details on how that has been implemented. NGOs wrote to President Obama in October to apply the Executive Order to at least ten strikes where there are credible allegations of civilian casualties, or, if action had already been taken, to disclose what had been done, but there has been nothing.

6. The report contains no information at all on strikes in Pakistan, most probably because they are carried out by the CIA. This is of crucial importance given that the enormous number of strikes have been carried out there.

7. The report is vague about when an armed conflict with a non-State actor ends, restating that only once al-Qaida is “effectively destroyed and will no longer be able to attempt or launch a strategic attack against the United States” will the war be over, and contains no clear indication of how the U.S. government assesses when an armed conflict has started. This is crucial to understanding what legal frameworks—whether just human rights law, or also the laws of war—are applicable and in what circumstances individuals may lawfully be targeted. Given how central the U.S. government’s claims to being in an armed conflict with these armed groups in various places around the world are to its targeting operations, a clear explanation of these parameters are crucial to bound the authority of the President in this regard.

What is new?

The report contains some important new information, including:

  1. The report states that Yemen and Somalia have consented to U.S. strikes in their territory. This is the first time the United States has officially stated that it is has the consent from these two states and is an important development. This is an important disclosure because consent serves as one of the valid exceptions to the general prohibition on the use of force on the territory of another state (consent to use force however, does not provide a basis to conduct strikes against people or property, which is governed by either an international human rights or humanitarian law framework). At the same time, it is not clear how often consent was given and to what extent—this is especially important in situations where the government has changed on a number of occasions, as in Yemen.
  2. Re-affirming the disclosure made in the War Powers report released on the same day, the report states that al-Shabaab is an “associated force” against which the U.S. government has undertaken military operations pursuant to the AUMF—broadening the scope of who may be targeted there.  
  3. There is a longer explanation in more detail than before regarding how this determination was made in relation to ISIL and al-Shabaab. For al-Shabaab the report explains that this determination was made on “because, among other things, al-Shabaab has pledged loyalty to al Qa’ida in its public statements; made clear that it considers the United States one of its enemies; and been responsible for numerous attacks, threats, and plots against U.S. persons and interests in East Africa.” This is important additional detail, but still does not set out a clear criteria for how a determination of “associated forces” are made or add greatly to previous articulations. This criteria is important as it is a key factor in terms of limiting the extent to which a President can expand war to new places and target individuals around the world.

Transparency and the entrenchment of norms

Finally, a word of caution about transparency of this kind. We are among the many advocates who have been, and continue to push, for more transparency. The report is admirable for pulling together so much material—but, for precisely that reason, it is an exposition of the U.S. government’s outlier legal interpretations that can result in a weakening of the carefully constructed and long established rules on the use of force, as touched on above. It can undermine accountability and set a dangerous precedent. Disclosures like this need to be met by vocal reinforcements of the more accepted understandings of international law on these issues, to avoid legitimising the views of the minority.

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About the Authors

Lecturer-in-Law at Columbia Law School, Director of the Counterterrorism, Armed Conflict and Human Rights Project at Columbia Law School's Human Rights Institute Follow him on Twitter (@apmoorehead).

Legal Fellow at Columbia Law School’s Project on Counterterrorism, Armed Conflict and Human Rights