10 Things We Need to Know Now About the US Drone War

A year ago today, NBC News published a leaked copy of a Justice Department memo that justified the killing of a U.S. citizen without a trial in a foreign country outside a war zone.

Specifically, the Justice Department “White Paper” set out “a legal framework” for when the U.S. government can attempt to kill a U.S. citizen believed to be a “senior operational leader of al Qa’ida or an associated force.”

The memo was clearly written to justify the U.S. government’s September 2011 killing of the al Qaeda in the Arabian Peninsula (AQAP) leader Anwar al-Awlaki, a U.S. citizen and Islamic cleric born in New Mexico, then living in Yemen, who’d reportedly been on a CIA “kill list” since April 2010.  U.S. officials claim Awlaki, who had earlier preached at the Capitol and attended a breakfast at the Pentagon, had inspired several attacks on Americans. They say he also helped plot the 2009 attempted Christmas Day bombing of an airliner over Detroit by the so-called “underwear bomber” Umar Farouk Abdulmutallab.

On September 30, 2011, a U.S. drone struck its target, killing the 40-year-old Awlaki and the 25-year-old editor of al Qaeda’s Inspire magazine, Samir Khan.  Both U.S. citizens, neither had ever been indicted by the U.S. government nor charged with any crimes.

Awlaki’s American-born 16-year-old son, along with his teenage cousin, was killed by a U.S. drone two weeks later. (U.S. officials say he was not the intended target.)

Among the controversial justifications set forth in the Justice Department memo for killing a U.S. citizen was that, in the view of an “informed high-level official,” he posed an “imminent” threat of violent attack against the United States.  But the memo went on to say that this “does not require the United States to have clear evidence that a specific attack on U.S. persons and interests will take place in the immediate future” – which is ordinarily what “imminent” means.  And there need be no oversight, judicial or otherwise, of the executive branch’s final decision.

At the time, the memo garnered a good deal of attention, particularly because then-national security advisor John Brennan’s nomination to lead the CIA had not yet been confirmed.

But the memo is as notable for what it did not explain as for what it did.  The memo set forth only the United States’ legal justification for the killing of a U.S. citizen.  It did not address the legal justification for the killing of thousands more non-U.S. citizens by U.S. drones.  In fact, other than acknowledging the killings of four particular Americans – a tiny fraction of the more than 3,000 reported killed since 2004 — the United States still hasn’t set forth the most basic facts of its so-called “targeted killing” program, including its legal justifications and its victims.

It’s hard to see how the United States can maintain support for its counterterrorism operations, and avoid setting a very dangerous precedent for other countries, if it doesn’t make public these most basic facts.

To that end, I’ve compiled a list of ten things the Obama administration needs to disclose now about its “targeted killing” program, to convince both skeptics and supporters that it’s acting within the law, exercising reasonable judgment and not setting a dangerous precedent for other countries and terrorist groups that will obtain lethal drone capabilities in the future.

  1. The identities of all individuals killed in US drones strikes, both in the past and going forward;
  2. All countries where the US has conducted targeted killings since September 11, 2001;
  3. The criteria each US agency involved (read: DoD and CIA) uses to decide whom it may target with lethal force – that is, who constitutes a targetable member of al Qaeda, the Taliban, or an “associated force”; what signatures are used to justify “signature strikes”; and what exactly constitutes an “imminent threat” that justifies lethal force;
  4. A list of organizations or groups the United States considers “associated forces”;
  5. The specific laws and legal interpretations each US government agency involved relies upon in its use of lethal force, within and outside of armed conflicts, including: a) An unclassified version of the Presidential Policy Guidance referenced by President Obama in his May 23, 2013 speech at the National Defense University and b) all relevant Department of Justice legal memos;
  6. Where, when and under what circumstances the US believes it is using lethal targeting within an armed conflict, and where, when and under what circumstances it believes it is acting outside an armed conflict;
  7. How each US agency involved determines who has been killed after a strike;
  8. The criteria each agency uses to classify each of those killed as “civilian,” “militant” or “combatant”;
  9. Summaries of all post-strike investigations, including who was killed, who was killed erroneously or constitutes “collateral damage” and whether and when apologies and/or compensation were provided for mistaken or collateral killings;
  10. An explanation of how each relevant US agency decides that capture of a target is not feasible and therefore warrants the use of lethal force, and explanations going forward why capture was not feasible in each instance.

These are not new requests. Human rights groups and others have been asking for this information for years, most recently in this joint letter sent to President Obama in December. But a year after we fortuitously learned of the justification for attacks on U.S. citizens, the government owes more explanation of its justification for killing non-Americans.

It’s not just that we need to know this in the interest of transparency; it’s that we need to make clear to our allies that we value the lives of ordinary non-Americans as much as we do our own, and that we have clear policies and credible justifications for all targeted killings. Otherwise, why would they sign on to the fight we say we are waging against terrorism?

It’s time to explain specifically what measures the United States is taking to ensure that it does not take the killing of foreigners any less seriously than it takes the killing of its own; and that outside clearly-established armed conflicts, we will use this awesome power and rapidly spreading technology only as we would want other nations to use it:  when absolutely necessary, and as a very last resort. 

About the Author(s)

Daphne Eviatar

Director of the Security with Human Rights Program at Amnesty International USA She advocates for US compliance with international law in US national security policy. Follow her on Twitter (@deviatar).