Representatives Schiff and Jones Introduce Bill to Increase Transparency in U.S. Drone Program

Today, Representatives Adam Schiff (D-CA) and Walter Jones (R-NC) introduced new legislation aimed to bring greater transparency to the U.S. drone program. The Targeted Lethal Force Transparency Act (full text of the draft bill) would require that the President make an annual public report on the number of persons killed or injured by U.S. drone strikes.  A group of human rights groups has come out in support of the proposal in a joint statement issued earlier today.

If you’ll recall, in November during the appropriations season, the House and Senate intelligence committees debated including a similar reporting requirement in the Intelligence Authorization Act for FY 2014.  The SSCI-approved version of the bill included the provisions; whereas, HPSCI rejected a Schiff-sponsored amendment to include the reporting requirements in the House version of intelligence authorization act.  Ultimately, it was all for naught, as the Intelligence Authorization Act stalled in early December, and no reporting requirements with respect to the drone program were included in the Consolidated Appropriations Act of 2014 which was signed into law in January.

So does the new legislation differ much from the reporting requirements proposed within the SSCI  bill (and rejected by the HPSCI) last fall?  On my initial read, yes and no.  Overall, the structure of the bill’s reporting requirements largely remains the same as that from the previous proposals.  And as a result, many of the concerns Sarah Knuckey and I identified last fall (here and here, respectively) are still applicable to the new proposal.  Indeed, today’s introduced legislation and the SSCI-approved reporting requirement are nearly identical, with two noteworthy exceptions.

First, today’s bill appears to ensure that all persons killed or injured by drone strikes outside the U.S. would be covered by the reporting requirement.  The bill requires reporting on persons killed or injured who fall into any of three categories: (i) combatants; (ii) civilians; and (iii) a catch all category for anyone not covered by (i) or (ii).  And the bill would require the report to state how the terms “combatant” and “civilian” are used for the purpose of the report.  There is at least a colorable argument that the SSCI-approved language created (intentionally or not) a reporting gap.  That legislation required the President to report only on persons classified as “combatants” and “noncombatant civilians” but did not define (or require the report to define) either term. Arguably, this language creates an opportunity for some creative classification of deaths or injuries resulting from drone strikes that may lead to some fuzzy accounting by the President.  For example, I could imagine a scenario where an administration might label certain persons killed or injured in drone strikes as “unlawful combatants” and argue, therefore, these persons are not covered by either category in the earlier SSCI bill.  Amnesty International also notes that requiring the Administration to provide its definitions for “combatant” and “civilian” will provide crucial previously unknown information “that [has] been especially glaring in the context of so-called ‘rescuer attacks,’ in which local residents came to the scene of an initial drone strike only to be struck in follow-up strikes.” Presumably, the Schiff-Jones bill seeks to bridge these gaps.

Secondly, and significantly, the reporting requirements in the SSCI-approved Intelligence Authorization Act were only forward looking (one of the key issues Sarah identified in that bill).  However, the new legislation requires that the first annual report disclose the numbers of persons killed in U.S. drone strikes dating back to 2008.  This is, indeed, a significant modification from the original proposals from last fall, especially given, as Sarah stated in November, the “long-existing and ongoing controversies about civilian casualty rates in the years since the targeted killings program began.”

Personally, I’m skeptical that the proposal will have much in the way of legislative legs, especially in a Republican-controlled House, when HPSCI rejected a similar reporting requirement only months ago.  Nevertheless, having a Republican co-sponsor will certainly help, and the continuing convergence of interests between the civil libertarian Democrats and government libertarian Republicans could certainly change the calculus.  Regardless, Representative Schiff is a strong voice on this issue on Capitol Hill and an important advocate for reforms of the U.S. drone program. And undoubtedly, the importance of this new proposal on the ongoing public debate surrounding greater transparency should not be diminished even if prospects for enactment are slim.

The text of the operative section of the bill is included below:

 SEC. 2. UNCLASSIFIED ANNUAL REPORT ON THE USE OF TARGETED LETHAL FORCE OUTSIDE THE UNITED STATES.

(a) REQUIREMENT FOR ANNUAL REPORT.—For each calendar year, the President shall prepare and make public an annual report on the use of targeted lethal force outside the United States. Except as provided under subsections (b) and (c), each such report shall include each of the following for the year covered by the report:

(1) The total number of combatants killed or injured during the year by the use of targeted lethal force outside the United States by remotely-piloted aircraft.

(2) The total number of civilians killed or injured during the year by such use of targeted lethal force outside the United States.

(3) The total number of persons killed or injured during the year by such use of targeted lethal force outside the United States who are not included in the totals reported under paragraph (1) or (2).

(4) The definitions of the terms ‘‘combatant’’ and ‘‘civilian’’ used for purposes of such report.

(b) EXCEPTION.—A report required by subsection (a) shall not include—

(1) any use of targeted lethal force in Afghanistan prior to the end of combat operations by the United States; or

(2) any use of targeted lethal force in a foreign country described by a future declaration of war or authorization for the use of military force.

 

About the Author(s)

Thomas Earnest

Former Managing Editor of Just Security (2013-14) Follow him on Twitter (@thomasdearnest).