NDAA Redux – Provision on Lethal Targeting

In a post last night, I noted the key Guantanamo-related provisions in the latest version of the 2014 NDAA.   It’s also worth highlighting the inclusion of another provision that had been part of the House, but not Senate version of the legislation, and requires the Secretary of Defense to submit to congressional defense committees a report detailing the legal and policy considerations and approval process for lethal targeting and capture operations outside Afghanistan.

A few aspects of this are worth noting:  First, it requires reporting not only on operations that occur in places such as Yemen and Somalia, but also on the standards and approval process, for lethal targeting and capture operations that take place in Pakistan.   To the extent the White House has publicly released information about such standards and procedures, the information has been limited to areas “outside of active hostilities” — thereby excluding parts of Pakistan deemed incorporated into the zone of active hostilities.   Second, the fact that the Armed Service Committees are asking for such a report suggests that they do not yet have sufficiently detailed information to fully evaluate and thereby provide effective oversight of such activities — a situation that needs remedying.   Third, the directive is pointed at the Secretary of Defense only, and not the Secretary of Defense in conjunction with or upon consultation with the Director of the CIA.   This is potentially important given reports indicating that the CIA takes the lead on at least some portion of such capture and targeting operations; one certainly hopes that this omission doesn’t result in a less-than-complete reporting of the issues involved.

Finally, it is significant that the provision asks for a report on the legal and policy considerations and approval process only.  It does not in any way touch on methods or sources or any other information that could arguably compromise specific operations or the nation’s security.   This is precisely the type of report that can and should be made public, as Harold, Sarah, and many others including Senators Wyden, Udall, and Heinrich have eloquently argued.  Such transparency is important not just for purposes of democratic accountability, but because it can help minimize the confusion about U.S. practices that currently exists, and launch the kind of dialogue and standard-setting that will ensure such extraordinary uses of force are effectively and appropriately employed in the future, both by subsequent administrations and other nations.

The full text is here:

SEC. 1043. REPORT ON PROCESS FOR DETERMINING TARGETS OF LETHAL OR CAPTURE OPERATIONS.  Not later than 90 days after the date of the enactment of this Act, the Secretary of Defense shall submit to the congressional defense committees a report containing an explanation of the legal and policy considerations and approval processes used in determining whether an individual or group of individuals could be the target of a lethal operation or capture operation conducted by the Armed Forces of the United States outside the United  States and outside of Afghanistan

 

Filed under:
About the Author(s)

Jennifer Daskal

Associate Professor at American University Washington College of Law Follow her on Twitter (@jendaskal).