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Trump’s First Drone Strikes: How to Measure His Approach to Transparency and Accountability

The first drone strikes under President Donald Trump were reportedly launched just a day after his inauguration. According to the New York Times, 17 people were killed in three drone strikes in the Yemeni governorate of Al Bayda on Saturday.

It is not yet possible to assess whether the strikes represent any departure from Obama administration policy. It is likely the strikes were already planned by the Obama administration, and signed off by Trump’s transition team.

Despite the likely involvement of the prior administration in the decision to carry out the strike, this operation presents an early opportunity for journalists and others to assess the Trump Administration’s approach to counterterrorism transparency and accountability. It is also a timely moment for the Trump Administration to demonstrate a commitment to such principles. Will Trump continue the movement toward more transparency and accountability initiated by Obama in the past year? Or will his administration repeat the mistakes of the early Obama years by being excessively secretive, a policy that led to widespread criticism, undermined the program, and kept survivors and families in the dark about what happened?

In an effort to guide observers of the Trump Administration, I summarize the main disclosures by the Obama Administration, explaining where further transparency and accountability is needed. I then offer a series of questions that journalists and others should ask the Trump Administration regarding the Yemen operation and future strikes. Finally, I explain how to track the new administration’s record against meaningful benchmarks.

Disclosures by the Obama Administration

Last week, the Obama Administration made a series of final disclosures regarding the use of lethal force overseas, acknowledging air strikes in Libya and releasing its 2016 civilian casualty figures for strikes carried out in areas it deems “outside of active hostilities.”

From a position of almost complete secrecy in 2o09, transparency in relation to drone strikes improved to a limited extent by the end of President Obama’s tenure, in part in response to sustained pressure by journalists and civil society, including Freedom of Information Act litigation by groups such as the American Civil Liberties Union.

In particular, President Obama and his Administration:

  • began to explain in greater detail the legal and policy basis for its strikes, culminating in the release of a 66-pageReport on the Legal and Policy Frameworks Guiding the United States’ Use of Military Force and Related National Security Operations in December 2016.
  • released civilian casualty figures for “areas outside of active hostilities” for the first time in July 2016, covering the years 2009-15. Although the information released was far from sufficient, this was still an important step toward correcting the excessive secrecy of prior years.
  • began sharing limited information regarding specific strikes. For instance, in Yemen starting in 2016, and Somalia from 2014 onwards, the Department of Defense has regularly acknowledged and released basic details about specific strikes (see, for instance, Centcom press release of December 22 here).
  • enshrined some of these measures in a July 2016 Executive Order and a December 2016 Presidential Memorandum—requiring government agencies to, among other things, acknowledge strikes, investigate civilian casualties, and offer condolence payments, “as appropriate and consistent with mission objectives,” as well as release civilian casualty data and information regarding the legal and policy frameworks applied by the government.

These reforms—while not adequate—were significant, and it is important that these changes and the improved transparency are properly acknowledged, in part so the new Administration’s record can be assessed against these policies (some of which reflect legal requirements). In this regard, the New York Times appears to erroneously characterize US government policy when it states in its article on the drone strikes in Yemen that “The United States did not take responsibility for the strikes, as is its standard policy.” Following the July 2016 Executive Order, and increased acknowledgment of strikes in Yemen, Somalia, Libya, Syria, and Iraq (but not Pakistan), this is not an accurate statement of current US government policy. (Indeed, the Times hyperlinks the words “as is its standard policy” to an old story from mid-2015.)

Need for greater transparency and accountability

 Despite improvements in transparency during the course of the Obama presidency, there are still significant shortcomings, as a number of commentators have previously noted (see, for example, here, here, here and here). For example, there is a need for:

  • greater clarity on the legal and policy frameworks and reasoning applied by the US government;
  • more information regarding specific strikes;
  • more detailed civilian casualty statistics; and
  • more disclosure of what kind of accountability processes are initiated in relation to specific strikes, including both compensation or condolence payments to families and survivors, and information regarding investigations, disciplinary procedures and any criminal prosecutions for wrongdoing.

It should also be noted that transparency is not a panacea for all of the issues surrounding the use of lethal force. The proper application of the rules of international law, and real accountability—for example in the form of effective congressional oversight and ex-post facto judicial review—are critical.

Assessing the new administration’s record in the areas listed above will be key to understanding whether we will witness a return to greater secrecy, a continuation of the limited transparency under the Obama Administration, or even further disclosures that build on the recent reforms and improvements.

Transparency and accountability under the Trump Administration

There are fears that the improvements made by Obama, such as the July 2016 Executive Order on civilian casualties and the December 2016 Presidential Memorandum, may be rescinded under the Trump Administration. This would be a seriously retrograde step, not only harming those directly affected by strikes, but also undermining the US government’s democratic legitimacy with its own people, as well as the willingness of other governments to work with the United States.

As Ryan Goodman highlighted last Friday, a key question at this juncture is whether the new Administration will continue to report on drone strikes in the way that its predecessor came to do.

I would take this one step further. The Trump Administration has an opportunity to avoid the mistakes made under Obama—excessive secrecy that led to suspicion, mistrust, and criticism within the US and overseas, undermined the program itself, and unnecessarily deprived people in areas affected by strikes of any information about what happened to their neighbors and family. Only belatedly did President Obama appear to recognize the importance of transparency. The Trump administration can, if it acts wisely, catapult ahead without having to relearn the costly lessons of excess secrecy. It is not far-fetched to imagine that President Trump would favor greater transparency in some situations. As Luke Hartig wrote, “Trump could embrace secrecy, consistent with his statements that we should not reveal our plans to our enemies, or the publicity-minded president-elect could be more transparent in an effort to broadcast our wins and discredit allegations of civilian casualties.”

Questions Journalists and Others Should Be Asking the Trump Administration

Journalists, academics, civil society, and others must continue to press the government on transparency and accountability for the use of lethal force overseas. Incidents of drone strikes, such as those reported in Yemen over the weekend, must be met with questions to the Trump Administration. Key questions include:

  • Was the US government responsible for the reported drone strikes in Al Bayda Governorate in Yemen on Saturday?
  • Will the US government issue an official acknowledgment of these strikes?
  • Will the Trump Administration acknowledge all strikes by the US government?
  • Who were the targets? Why were they designated as targets? What was the level of certainty required for these decisions?
  • What was the legal basis for these strikes (e.g., for using force inside another country)? What legal and policy frameworks and rules apply to the strikes?
  • Did the US government apply the 2013 Presidential Policy Guidance to these strikes? Did the government invoke “the extraordinary circumstances” section of the Guidance?
  • Has the US government received any allegations of civilian casualties in these strikes?
  • What steps is the US government taking to investigate the effects of these strikes? Will the results of the investigation be published and when?
  • How will the new Administration disclose incidents of alleged civilian casualties as a result of air strikes, including drones?
  • What will the Trump Administration’s policy be on civilian casualties? Will it build on the existing mechanisms to implement a comprehensive system of condolence payments and/or compensation for civilians killed or injured, or civilian property damaged, by the US use of force overseas?

Tracking the Trump Administration’s Record on Transparency and Accountability

Journalists should also be alert to future developments. One way of tracking the approach taken by the Trump Administration is by examining the extent to which the new government implements or complies with some of the reforms of the Obama Administration, examining, for example, whether:

  • Strikes are acknowledged by the Department of Defense in places such as Libya, Yemen and Somalia.
  • The government acknowledges and investigates allegations of civilian casualties for specific strikes.
  • The Trump Administration releases 2017 data for civilian casualties in 2018.
  • The July 2016 Executive Order on civilian casualties and December 2016 Presidential Memorandum are left in place.
  • Efforts continue to implement the July 2016 Executive Order on civilian casualties.
  • If a report on legal and policy frameworks is issued at the end of 2017 in accordance with the Presidential Memorandum.
  • The 2013 Presidential Policy Guidance on Procedures for Approving Direct Action against Terrorist Targets Located Outside the United States and Areas of Active Hostilities remains in place or is rescinded.

 

Image: Lightguard/Getty

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About the Author

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).