Yesterday, the Associated Press, Washington Post, New York Times, and the LA Times reported on debates within the U.S. government about “whether to authorize a lethal strike against an American citizen living in Pakistan who some believe is actively plotting terrorist attacks.”
As so often occurs when (anonymous) U.S. officials leak snippets of information to reporters about drone strikes – information that is vague, partial, and near-impossible for outsiders to meaningfully scrutinize or verify – these latest reports raise a host of new questions (see here by Jen Daskal, and here by Jack Goldsmith) and concerns (see here by Hina Shamsi, and here by Naureen Shah). Each time new reports like this come out, external observers parse each sentence and compare accounts in different outlets, attempting to understand the significance, if any, of wording choices and grammatical constructions. The lack of adequate government transparency and on-the-record official statements clearly accounting for the U.S. “targeted killing” program creates endless rounds of guessing about the actual limits of U.S. lethal force.
In particular, and as I’ll discuss in this post, these latest reports exacerbate existing confusion about where and when President Obama’s May 2013 use of force rules in fact apply.
All of yesterday’s reports discuss the possible new strike against the backdrop of existing policy and legal rules for the use of lethal force, and especially in relation to the new use of force policy (not laws) briefly discussed publicly by President Obama in his May 2013 NDU speech, and summarized in the May 2013 Presidential Policy Guidance. The AP, for example, writes: “The case … underscores the complexities of President Barack Obama’s new stricter targeting guidelines for the use of deadly drones.” Each of the news articles seems to assume that the new May 2013 rules would apply to this strike, and would apply in Pakistan. It is not clear from the reports whether journalists were told by officials that the new rules applied here, or were told the content of specific rules, or whether the journalists themselves assumed the relevancy of the May 2013 rules. The LA Times is most categorical on the applicability of the May rules to the possible new strike on a U.S. citizen:
Under the new guidelines, drone strikes and other lethal force can be used outside war zones only “to prevent or stop attacks against U.S. persons, and even then, only when capture is not feasible and no other reasonable alternatives exist to address the threat effectively.” Pakistan would be considered outside a war zone.
However, since late May 2013, those outside government closely watching the drone program generally assumed that the new rules did not apply in Pakistan. It was assumed that Pakistan was considered by the U.S. government to be part of the “Afghan theater,” and thus excluded wholly or in part from the new May 2013 rules. Those outside government assumed this because of careful wording choices in the new rules, officials’ statements, and some reports at the time by journalists.
The three page Presidential Policy Guidance – the public, written summary of the new rules – applies explicitly only to operations “outside areas of active hostilities.” Which areas or countries the U.S. government designates as such, or what the criteria are, has never been clarified by the government. (The lack of clarity on the meaning of key scope-defining terms is a common feature of U.S. drone strike policy and legal rules – other unclear terms include “associated forces,” “feasible,” “directly participating in hostilities,” and “imminence”). However, “outside areas of active hostilities” has generally been presumed to exclude not only Afghanistan, but also the “Afghan theater” (i.e., Afghanistan and Pakistan, or at least the border regions of Pakistan). President Obama’s May 2013 NDU speech, for example, carefully refers to the new rules as relevant to areas “[b]eyond the Afghan theater.” (See further the comments by anonymous U.S. officials during a May 23, 2013 “Background Briefing,” distinguishing “Afghanistan” from the “Afghan war theater,” as well as May 29, 2013 comments by Press Secretary Jay Carney on rules relevant to “Afghan war theater operations”). Most explicitly, here is Mark Mazzetti and Declan Walsh, reporting for the NYT on May 29, 2013, one week after Obama’s new rules were published:
But in the days since the president’s speech, American officials have asserted behind the scenes that the new standards would not apply to the C.I.A. drone program in Pakistan as long as American troops remained next door in Afghanistan — a reference to Mr. Obama’s exception for an “Afghan war theater.” For months to come, any drone strikes in Pakistan — the country that has been hit by the vast majority of them, with more than 350 such attacks by some estimates — will be exempt from the new rules.
What are we to make of this?
There are numerous possible ways to interpret this week’s reports in light of prior reports and government statements. Perhaps yesterday’s accounts incorrectly assume that the May 2013 policies apply to this case. Or, perhaps the May 2013 policies did not fully apply to Pakistan back in May 2013, but now do apply. Maybe the May 2013 policies apply to certain parts of Pakistan, or to certain kinds of operations. Maybe the full (not public) version of the guidelines contains the relevant rules, unclarified in the short public document. Or there could be a different set of policies applying in Pakistan, but containing similarly worded limits as the policy made public in May 2013. Or: ?
It is astonishing that we still do not even know, almost ten years since the first drone strike in Pakistan, and after many government promises of transparency, what specific rules the U.S. applies to the killing of even one of its own citizens. The government could release clear policies and legal interpretations, enabling democratic debate and accountability, and the strategic advantages that come with openness. Instead, we have confusion and an increasingly farcical guessing game.