Less Transparency Won’t Fix a Lack of Transparency: A Response to Gen. Dunlap on Civilian Casualty Reporting Requirements

Transparency advocates and large parts of the foreign policy community reacted with sharp criticisms when President Donald Trump recently rescinded an important part of an Obama-era Executive Order (E.O.) that had required an annual public report on civilian casualties resulting from U.S. strikes outside of hot warzones like Iraq, Syria, and Afghanistan. I wrote in Just Security on the substantial downsides of the new policy and how this move would undermine public support for a critical U.S. counterterrorism program. Media coverage noted the various ways in which this action decreased the public’s insight into the U.S. drone program. Few rushed in to defend the move. But an article by retired Major General Charles Dunlap on Monday argued not only that the administration made the right move, but that those of us who decried the new policy were essentially prioritizing “body counts” as the primary means for assessing the U.S. targeted killing program. The use of the Vietnam-era language of “body counts” vividly emphasizes Dunlap’s negative view of those of us advocating transparency in the use of force outside of war zones, suggesting that we are committing similar errors to the politicos who cheered the war in southeast Asia and pointed to tallies of enemy dead as a means of assessing progress in that conflict. It’s an odd comparison, since those Dunlap views as today’s body counters generally advocate constraint on the use of force, while Vietnam-era officials promoted extensive bombing. It’s also an unhelpful reduction of an opposing argument in unpacking this difficult issue. Dan Mahanty and Alex Moorehead offer a broader rebuttal to Dunlap, but I write here primarily to address misrepresentation of my points concerning the E.O.

I should begin by noting that I have long admired Dunlap’s work and consider him to be a critical voice in helping the public and legal and policy communities navigate a tangle of tough issues regarding the use of force that have emerged since 9/11. Although I often disagree with him on core issues regarding constraints on the use of force and transparency around those operations, his ability to channel the gut check of our operational professionals combined with the deft touch of a skilled lawyer make his an indispensable voice. Yet his most recent piece misrepresents arguments that I (and others) have put forward. Let’s consider them in turn.

First, Dunlap attacks my argument that providing statistics on the number of U.S. strikes and assessed combatant and civilian deaths in a given year is a valuable metric for helping the public assess whether the United States is living up to its stated high standards for the use of force. He does this by arguing that the disclosures I favor risk providing the public “body counts” in isolation from other factors that help to contextualize operations and to consider whether the U.S. program is meeting its stated goals. This is not, and never has been, my position.

I have repeatedly lamented the broad decline in transparency in this administration (beyond solely casualty statistics), and also criticized the incomplete progress toward transparency in the George W. Bush and Barack Obama administrations (in which I served). I have called for a comprehensive dialogue with the American public not just about the toll of specific strikes but also the policy and legal frameworks underpinning those operations, why such operations are still necessary 17-plus years after 9/11, and why we are still putting U.S. troops in harm’s way to achieve our objective. My intent is to shore up support for the program, not undermine it. I consider the drone program to be critical to our national security and believe that only through much more comprehensive transparency can the public properly understand it, reject the common myths about our operations, and have some trust in the program.

Dunlap then goes on to articulate the rules of proportionality in war and argues that even with a high percentage of civilian casualties relative to the number of combatants killed, the United States might not necessarily violate legal or moral norms for the use of force. As Dunlap notes, “killing a single terrorist leader who could employ a weapon of mass destruction might warrant accepting a very large number of civilian casualties.” Moreover, Dunlap states that, particularly outside of areas of active hostilities, “much or all of the information” on the military advantage of strikes would likely be classified, impeding the ability of the public to assess the results of strikes. A thorough discussion follows on all the ways that numbers do not, in and of themselves, tell the whole story of our operations.

There is no major point of disagreement here. Dunlap is correct about the complexity of military operations and the difficulty of the public fully assessing their impact. As noted above, I believe the public needs much more context about our use of force. I would also note, contrary to Dunlap’s statement, the government has, in fact, on many occasions provided information about the military advantage of our strikes, including who was targeted, while safeguarding sensitive, classified information. I also naturally agree that some military objectives are so valuable as to allow for greater numbers of civilian casualties (so long as they are not excessive in relation to the military advantage, as the law requires). I have never argued otherwise. And I fully recognize that evaluating whether commanders meet the legal standards under the law of armed conflict is a complex undertaking.

But the previous administration put forward a policy standard calling for the relevant commander to assess with near certainty that no civilian casualties will be incurred prior to taking action. Our top commander in Africa publicly reaffirmed that standard, as applied to Somalia, early on in the Trump era. And news reports indicate that the Trump administration retained the near certainty standard in its updated use of force framework. Although the near certainty standard is applied prior to taking action, it’s entirely reasonable to ask whether the results of operations suggest that commanders consistently adhere to that standard or not.

Of course, war is complex and there are various ways that a military commander could make a reasonable assessment prior to authorizing a strike and still see civilians die in an operation. Near certainty is not absolute certainty, after all. But over time, one would expect to see a downward trend in civilian casualties, which would suggest both that the policy remains in place and that our operators continue to improve. Dunlap may not agree with the policy standard in the first instance, but so long as it’s in place, information that goes at least part of the way towards explaining whether or not it is being met is a good thing for the public to know. And as I discussed in my earlier analysis, it is also a good thing for the US intelligence community, across departments and agencies, to internally assess civilian casualty reports so that the administration and the public can both have greater faith in their conclusions.

Finally, Dunlap references a recent New York Times piece on Somalia, which notes that Africa Command’s disclosures of U.S. strikes have received “scant attention from Congress or the news media.” In Dunlap’s view, this single statement from the Times indicates that such reports on the results of U.S. operations “do not do all the work some think they do.” First of all, it’s not clear what Dunlap sees as the hoped-for work that has been left undone by these disclosures. It’s true that Somalia has not enjoyed prominent placement at the top of the media stack, but there are a range of reasons for that, as any consumer of news in the Trump era recognizes. Further, notwithstanding some important questions raised about a few problematic operations, there has been relatively little domestic political or congressional controversy around Somalia during the Trump administration, suggesting that transparency might actually play a role in shoring up support for the campaign there.

In fact, one might argue that U.S. public affairs officials are actually handling Somalia quite well. Africa Command has set the standard for enhanced transparency around U.S. operations over the past several years. In addition to providing information about strikes — including in several cases, the targets of those strikes — they have announced the launch of investigations into problematic operations, fostered a productive working relationship with the press, and repeatedly made available top U.S. commander General Thomas Waldhauser for comment. Waldhauser has spoken at length and with great nuance about the U.S. campaign in Somalia, the political and humanitarian situation, and the context in which the U.S. military employs a range of counterterrorism tools.

Even in the face of criticism, Africa Command seems inclined toward dialogue. For example, this week Amnesty International released an investigation of several strikes in Somalia that the group assesses resulted in civilian casualties. The report detailed pre-publication conversations with the command, and while Amnesty expressed considerable frustration that the military would not fully share the reasons that it disagreed with Amnesty’s assessments, the mere fact of this strike-by-strike engagement reflects marked progress from the secrecy of just a few years back. Africa Command responded to the report with a statement defending its assessments, discussing the careful methodology the Command uses in reaching those assessments, and providing geopolitical context around its operations. Amnesty understandably wanted more information from the command on specific strikes, but this is not always possible, given the classified nature of the information that often informs U.S. targeting decisions and post-strike assessments. That’s not to say that Africa Command couldn’t make additional progress toward transparency by sharing more details on its own assessments, exploring what Amnesty suggests could be materially different definitions of combatants and civilians, describing the indicators it uses to determine civilians versus combatant status, and explaining the ebbs and surges in strikes and how they fit in with the overall campaign. But on the whole, Africa Command has made – and continues to make – steady and prudent progress toward numerical and contextual transparency and showed that it’s possible to discuss our counterterrorism campaign without undermining U.S. operations.

Dunlap’s perspective is a valuable one, and a robust debate on the parameters of transparency around U.S. counterterrorism operations is warranted. But mischaracterizing the arguments of others and dismissing those with differing views as no better than the body counters of Vietnam does not advance this important debate.

[Editor’s note: Be sure to read Maj. General (ret.) Charles Dunlap’s response, “Letter to the Editor: Where Luke Hartig and I Agree on Drones (it’s more than you might think)”] 

About the Author(s)

Luke Hartig

Executive Director of National Journal's Network Science Initiative and Fellow, International Security Program at New America. Former Senior Director for Counterterrorism at the National Security Council, former Deputy Director for Counterterrorism Operations in the Office of the Secretary of Defense. Member of the editorial board of Just Security. Member of the editorial board of Just Security. You can follow him on Twitter (@LukeHartig).