Toward a New Approach to National and Human Security: End Unlawful, Secret, and Unaccountable Use of Lethal Force

Editor’s note: This piece is part of a four-part series marking the 19th anniversary of the terrorist attacks on Sept. 11, 2001. All of the posts can be found here

In the nearly two decades since the September 11th terrorist attacks,  U.S. leaders have advanced a war-based approach to national and human security that has resulted in hundreds of thousands of deaths—most of them civilians – forfeited the nation’s moral legitimacy, and squandered trillions of dollars.

 As several of us noted in the introductory piece for this series, this shortsighted strategy has:

Violated human rights; damaged the rule of law, international cooperation, and the United States’ reputation; set a dangerous precedent for other nations; fueled conflicts and massive human displacement; diverted limited resources from more effective approaches; and, most consequentially, destroyed hundreds of thousands of lives, primarily of civilian, Muslim, Black, and Brown people.

Over multiple administrations, a core component of this war-first approach has been the U.S. policy of secretive and unaccountable killings of individuals suspected of involvement in terrorism. This policy has expanded in intensity and geographic scope over the last two decades, and in the categories of people who could be killed based on suspicion, alleged association, or affiliation—all without any judicial process.

In response to concern from allies, public controversy, advocacy, and litigation, the Obama administration adopted Presidential Policy Guidance in 2013, imposing internal bureaucratic constraints within the executive branch and civilian casualty safeguards on the use of force outside what the administration called “areas of active hostilities.” That policy contained a few meaningful measures, such as a preference for capture and a requirement of near certainty that no civilians would be harmed in the locations where the policy applied.

But overall, in the name of flexibility and threat prevention, the administration entrenched an architecture for a near-global government-sponsored killing program with little transparency, no accountability, and no endgame in sight for the precedent it unleashed.

According to media reports, the Trump administration weakened even the limited Obama-era constraints by, among other changes, eliminating the senior-level interagency review process for approving strikes and the requirement that the individual targeted pose an “imminent” threat to Americans. And it remains unclear whether, and where these weakened constraints even continue to apply. The result has been even greater secrecy and abandonment even of the goal of placing limits on the use of lethal force.

Regardless of who wins the upcoming election, it is imperative that the president set the nation on a more sustainable and rights-respecting course. Doing so will require a major shift in approach to law, policy, rights, and strategy. It cannot be done by continuing the war-based response to counterterrorism that generated practices like “surgical strikes” and “small footprint operations.”

What follows are recommendations for moving toward a more sustainable approach that brings lethal force policies and practice in line with the rule of law and respect for human rights.

Immediate Steps:

Abandon the Notion of an Unbounded “War on Terror”

In the period immediately after 9/11, the United States used the image of a global war against an amorphous set of enemies to bypass the constraints of international law on wartime authorities. This paradigm fed on fear and politicians’ expressed desire to guarantee that terrorism would not affect Americans at home again. In the process, the government imposed discriminatory and harmful policies, primarily against Muslims and communities of color at home and abroad, and fueled bigotry and stigma.

The executive branch must abandon this war paradigm, and reserve the tools and authorities of war for actual wartime contexts where those tools are both lawful and actually necessary.

End the Policy of Killing Terrorism Suspects

U.S. policy choices since 9/11, including the use of drone strikes, have resulted in the widespread understanding that the United States believes that it is legal to summarily execute individuals the government suspects of engaging in terrorism. The United States should repudiate the notion that it or other states may engage in such extrajudicial killings, which violate fundamental principles of the rule of law and human rights.

One of the defining characteristics of war is that it permits the deliberate, planned and targeted killing by the state of certain individuals (combatants and individuals directly participating in hostilities) under certain circumstances. It is widely understood in international and domestic law that outside of war, such killings would not only be prohibited, but constitute extrajudicial executions.

Accordingly, the next administration should announce that it will not lethally target individuals because it suspects them of terrorism and that it does not claim the authority to do so. This announcement should include a commitment to use lethal force only in countries where the United States is engaged in an armed conflict and only under the narrowly circumscribed limits of international humanitarian law and human rights law.

This commitment should be made as both a policy and legal matter.  Such an announcement would begin to repair the damage to U.S. alliances and its standing in the world.  Not adopting this fundamental protection will continue to fuel conflicts, set a dangerous precedent for other nations, and undermine global as well as U.S. security.

Disclose Legal Analysis and Policy Standards for Use of Lethal Force

Secrecy concerning lethal force standards and use undermines the right against arbitrary deprivation of life, U.S. obligations under international law, and democratic accountability. Previous administrations provided varying degrees of transparency, but all have fallen far short.

Indeed, too often, it has been difficult to fully determine the government’s compliance with applicable international law standards because successive administrations have not consistently or fully disclosed to the public their legal rationale for the use of force. The administration should end this secrecy and publicly demonstrate that it abides by all applicable international law requirements protecting the right to life.

Specifically, the administration should publicly disclose all policy positions and legal interpretations, along with underlying legal and policy analysis including Office of Legal Counsel memoranda, on how it (and previous administrations) defines and interprets legal and policy constraints on the use of force abroad. This includes where the standards apply, to whom, and under what circumstances.

For Ongoing or Future Uses of Lethal Force:

Comply with the U.N. Charter

Through the United Nations (U.N.) Charter, the community of nations seeks to advance and protect international peace and security.  Key to that objective are the Charter’s safeguards restricting the use of force in the territory of another state, including in self-defense. Under the Charter’s provisions and customary international law, nations may not use defensive force without U.N. Security Council authorization, unless in response to an armed attack or an actually imminent armed attack. Any such use of force must be necessary and proportionate to the aims of self-defense and promptly reported to the U.N. Security Council. Yet past administrations promoted expansive interpretations of these limited exceptions, using force that violated or undermined the Charter’s purpose of constraining unilateral uses of force. In doing so, they also undermined international peace and security. The administration should abide by both the spirit and letter of the U.N. Charter.

Comply with International Human Rights Law and the Law of Armed Conflict

The administration should consistently and publicly demonstrate that its use of force policies and practices comply with all applicable bodies of international law that constrain the use of force and protect the right to life. This includes the right not to be arbitrarily deprived of life, which is a customary international law norm embodied in Article 6 of the International Covenant on Civil and Political Rights. Human rights law prohibits lethal force unless it is as a last resort in response to an imminent threat that poses a substantial risk to human life that cannot be otherwise addressed by, for example, arresting the person.  In the context of a recognized armed conflict, use of lethal force must comply with the law of armed conflict principles of distinction, proportionality, military necessity, and humanity. Past administrations’ use of lethal force in and outside of recognized armed conflict has frequently violated these laws.

Comply with the Constitution

To safeguard the separation of powers inherent to a system of checks and balances, the Constitution grants only Congress the power to declare war. The president must, therefore, obtain advance authorization from Congress before using force abroad.

The only exception to this requirement is if the president exercises authority, under Article II of the Constitution, to use force to repel a sudden attack when there is no time to seek authorization from Congress. Past administrations have used force without Congressional authorization or interpreted authorization far beyond what Congress intended. The president and their administration should abide by the both the spirit and the letter of the Constitution by respecting Congress’s role in authorizing the use of force abroad.  For any use of force abroad, the administration should also specify the source of constitutional and/or statutory authority invoked.

Conduct Thorough, Prompt, Impartial, and Transparent Investigations of Civilian Harm and Credibly-Alleged Wrongful Killings

The Department of Defense has standardized an internal requirement to conduct a basic assessment of facts for any allegation of wrongful killing or of civilian harm, including both death and injuries. However, the military’s tendency to rely on its own information, and to treat external sources with skepticism, prevents too many legitimate allegations from being further investigated, and too few incidents from being acknowledged and properly addressed. The military rarely, if ever, conducts civilian witness interviews during its assessments and investigations.

The administration should ensure that the military improves the thoroughness and transparency of its investigative practices, in particular by conducting witness interviews and site visits as standard practice, unless security considerations make these measures unsafe for witnesses. Credible information from non-governmental sources should be sought and included in both initial assessments and investigations. The status of investigations, along with the results, should be disclosed to the public and directly to the affected civilians, bearing in mind the privacy and security interests of those involved.

Ensure Accountability, Including Judicial Review

The administration should ensure accountability for wrongful deaths caused by United States. and U.S.-supported lethal force operations (including all strikes and raids), including by supporting judicial review in cases in which wrongful use of force or placement on a kill list is credibly alleged. Previous administrations sought to prevent judicial review of credible allegations of wrongful death of U.S. citizens and non-citizens alike, undermining the right against arbitrary deprivation of life, due process, and the rule of law. The administration should not assert any privilege or doctrine, including the state secrets privilege or the political question doctrine, that would prevent courts from hearing such cases on the merits. Nor should it raise qualified immunity as a defense or oppose victims pursuing causes of action under Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics against federal officials for violating constitutional rights. Moreover, the president should not obstruct accountability or encourage or tolerate violations of human rights in any other way, such as by appointing or promoting current or former government officials who directed or participated in violations of the right to life or the law of armed conflict.

Provide Effective Remedies for Civilian Casualties

When civilians are incidentally killed or injured as a result of U.S. operations in the context of an armed conflict, the administration can take a number of steps to address harm, including by acknowledging deaths and injuries, expressing contrition or regret, making reparations for wrongful actions, or offering condolence payments (which are expressly authorized by law). Any response should include channels for those harmed to seek effective remedies for their loss. The president should ensure that all victims or their families have effective access to remedy regardless of their nationality, the location of the operation, or whether the provision of remedies will be disclosed due to security or privacy concerns.

Release Detailed Casualty Assessments

Accurate assessments and estimates of civilian casualties and combatant fatalities serve a number of important functions, including ensuring that the public understands the human costs of war, and that decisions about who the government may kill are lawful and subject to appropriate public scrutiny and oversight. The next administration should commit to a policy of regularly reporting the number and location of combatants and civilians that it has assessed were killed as a result of U.S. operations (a requirement currently established in law). As it develops its assessments and estimates, the government should undertake meaningful dialogue with non-governmental organizations to ensure it has considered all credible information available.  When releasing its assessments and estimates, the administration should provide sufficient details to enable a proper analysis of the government’s data and any discrepancies between the government’s assessment and the information compiled by independent organizations. To be meaningful, the casualty data that is released should be disaggregated by date and location, disclose the criteria used to classify individuals as combatants or non-combatants, and specify the organized armed group to which any individuals classified as combatants allegedly belonged.

Ensure Respect for Human Rights and Transparency in Partnered Operations

While the U.S. government conducts unilateral operations in a select number of countries, it conducts operations “by, with, and through” partner country security forces in many more. The administration should publicly—and voluntarily—acknowledge its role in partnered operations that involve, or could involve, the use of lethal force or expose U.S. forces to the risk of involvement in hostilities. It should acknowledge allegations of civilian harm that occur incidental to these “advise and accompany” missions, seek formal assurances from partners related to compliance with human rights and international humanitarian law, and ensure that partner forces investigate and publicly acknowledge reports of civilian harm and allegations of human rights violations.

Ensure that Humans Make the Decision to Use Lethal Force

During the past two decades, the U.S. has increasingly used lethal force abroad through unmanned weapons systems. These systems have the potential to blur responsibility for use of force decisions and may have contributed to the length of current conflicts by insulating the public from the true costs and risks of using force. The Administration should ensure that a specific human is responsible and accountable for each strike decision that is likely to result in death or injury to any person. That human should also have the real-time ability to stop any such strike, even after a weapons system has been activated, and should also fully understand the reasoning and evidentiary basis for designating a particular target. The next administration should also support and participate in negotiating a new international treaty to address concerns over lethal autonomous weapons systems.

End the Use of Lethal Force by the CIA

For almost two decades, Department of Defense use of force in and outside of armed conflict has been the subject of democratic debate and a degree of public oversight.  At the same time, the CIA has carried out a covert program of lethal strikes across parts of the Middle East, Central and South Asia, and North Africa, without meaningful oversight or any accountability.  The CIA does not have an institutionalized culture of adherence to the law of armed conflict, and civilians harmed during covert operations have no way to seek redress. The administration should end the use of lethal force by the CIA, including the use of drone strikes, and the agency should restrict itself to an intelligence and analysis role.

Establish an Expert Civil Society Advisory Board on Use of Force and Civilian Casualties

The administration should establish an advisory board of experts from civil society to engage with and provide recommendations to the administration on how best to respect human rights and protect civilians. The advisory board should include non-governmental legal experts on the use of force under international law as well as the policy implications and impacts of lethal strikes.

Dedicate Sufficient and Appropriate Resources to Prevent and Address Civilian Casualties

The ability of the U.S. government to prevent civilian casualties, and to properly address civilian harm when it occurs, should never be limited by resource constraints or a lack of direction from senior officials, including the Secretary of Defense. The administration should set the clear expectation that the military will expend the necessary resources to prevent and account for civilian casualties in any anticipated or ongoing conflicts and its partnered operations, and should ensure that the senior official with responsibility for managing the Department of Defense civilian casualties policy is delegated with the authority, staff, and resources to carry out their duties. The administration should also ensure that the Departments of Defense and State, in consultation with outside experts, take stock of, and then set about developing the needed skills and specialized capabilities they need to improve the government’s overall record on civilian casualties, including those related to preventing, investigating, and providing remedy for harm.

The harms and legacy of America’s twenty-year counterterrorism campaign cannot be undone, and the consequences of the secret and unaccountable uses of lethal force that define it continue today. Although American leaders cannot repair the damage from these policies overnight, they can and must correct course – starting now – and do so from a firm foundation of adherence to law, rights, accountability, transparency, and self-restraint.

Image: UNSPECIFIED, PERSIAN GULF REGION – JANUARY 07: A U.S. Air Force MQ-1B Predator unmanned aerial vehicle (UAV), (R), returns from a mission to an air base in the Persian Gulf region on January 7, 2016. (Photo by John Moore/Getty Images)

 

About the Author(s)

Rita Siemion

Director of National Security Advocacy at Human Rights First. Member of the editorial board of Just Security. Follow her on Twitter (@ritasiemion).

Hina Shamsi

Director of the ACLU’s National Security Project Follow her on Twitter (@HinaShamsi).

Daniel R. Mahanty

Director of the U.S. program at the Center for Civilians in Conflict (CIVIC). He previously served 16 years at the U.S. Department of State. Follow him on Twitter (@danmahanty).

Heather Brandon-Smith

Legislative Director for Militarism and Human Rights at the Friends Committee for National Legislation (FCNL). Follow her on Twitter (@HBrandonSmith).

Priyanka Motaparthy

Director of the Counterterrorism, Armed Conflict, and Human Rights Project at Columbia Law School's Human Rights Institute; previously served as acting Emergencies Director at Human Rights Watch, where she led the Emergencies Division’s investigations and reporting on global atrocities and human rights crises. Follow her on Twitter (@priyanica ).

Matt Hawthorne

Matt Hawthorne is the Policy Director at the National Religious Campaign Against Torture.