Secrecy, Drone Strikes, and Rule of Law

Drone strikes have become an inevitable part of warfare over the past decade. However, accountability and transparency have not. According to the new report Out of the Shadows, the lack of transparency in US targeted killing operations increases ill will towards the United States, undermines the advancement of human rights and rule of law, and decreases American credibility. The harm this causes is counterproductive to American strategy abroad and causes untold amounts of human misery, and yet, a lack of accountability persists. While greater transparency is not a panacea to resolve these issues, it does matter to the families of the victims, to the voting public of the United States, and to international partners who rely on the United States.

The report, a joint project between the Columbia Law School Human Rights Clinic and the Sana’a Center for Strategic Studies, designed a set of benchmarks to ensure transparency in the use of lethal force, and evaluated progress toward those goals. They found that the US government has admitted killing approximately 3,000 people from 2009 to 2016 in secret drone strikes and targeted killings, outside of “areas of active hostilities.” Of the more than 700 strikes recorded by researchers since 2002, the government has only acknowledged 153, a mere 20% of the total. However, while the USA has remained far too secretive, some progress has been made over the past decade towards greater transparency--but not enough.

During the Obama administration, the government did publicly release information about its constraints on and procedures for the use of lethal force abroad, but these rules remain vague. And the US has only released rules governing strikes carried out by the military; doctrine governing CIA actions remain secret. Nor is there any transparency about specific actions taken, or accountability in individual cases. It is therefore impossible to determine when oversight mechanisms have come into play, or how meaningful that oversight is.

The US has released some statistical data on civilian casualties caused by drone strikes and use of force in Somalia, Pakistan, and Yemen. This included information about some specific strikes in Somalia in 2014 and in Yemen in 2016, but nearly no information was released about strikes in Pakistan. This means it is almost impossible to explain how the US interprets its own rules and if they are accurately interpreting their international obligations.

Drone strike and lethal force practices are highly secretive, there has been limited or no information provided to families or the general public about specific strikes, and civilian casualty data lacks sufficient detail.

Civilian casualty data lacks specific details, and the secretive nature of drone strikes and other lethal uses of force means that families are left without answers for the deaths of their loved ones. Nor is there a clear mechanism by which Somali, Pakistani, or Yemeni families can file a claim, or receive compensation. In fact, the government prevents scrutiny into any of its actions in these countries by the broad application of the state secrets doctrine, which allows the prevention of disclosure of facts for national security reasons.

The excessive secrecy during both the Bush and Obama administrations undermined counter-terrorism efforts and caused significant harm to many. While the Obama administration ushered in greater transparency, it was not enough to create a lasting impact on the nature of American lethal operations abroad. The report recommends that the United States should release results of all government investigations into strikes, subject to redaction only for the safety of civilians or legitimate national security reasons; provide detailed and explicable standards for uses of force abroad; disclose the legal basis for each strike; and release annual breakdowns of casualty payments, investigations opened, and disciplinary measures taken. These measures would be a drastic departure from how the United States currently operates,  and would strengthen the norms of transparency and accountability for all states.