Key Facts and Analysis on the U.S. Targeted Killing Program

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1 Key Facts and Analysis on the U.S. Targeted Killing Program Introduction U.S. targeted killing policy is one of the most important national security and human rights issues now being discussed and decided by the U.S. government. The lack of a clear U.S. position on who is targetable sets a dangerous precedent that other countries with less regard for human rights may follow. The increasing reliance on targeted killing by drones to eliminate suspected terrorists also risks perpetuating a global war without end, as the U.S. government continues to rely on its claim of wartime authority for its drone policy. Clarification of the rules followed by the U.S. government is also critical for U.S. counterterrorism policy to have legitimacy and not alienate our allies, upon whom we depend significantly for intelligence and other assistance. As a policy matter, the U.S. cannot end the terrorist threat by killing every last terrorist. Now is the time for a robust debate over the legality and effectiveness of drone strikes so that any short-term gains they may provide don t hinder the United States long-term counterterrorism strategy. What is Targeted Killing? Targeted killing carried out with the use of Unmanned Aerial Vehicles (UAVs, or drones ) has become a central component of U.S. counterterrorism policy. There are two types of these drone strikes. Personality strikes target specific individuals whose names populate a kill list. The U.S. killing of American citizen Anwar al-awlaki is an example of a personality strike. Signature strikes target individuals based not on identity but on an observed pattern of activity (or signature ). Scope of U.S. Targeted Killing / Drone Program The Bush administration began using drones to conduct targeted killing as early as The Obama administration greatly expanded their use, reflecting a shift in U.S. counterterrorism strategy as the technology became increasingly available and sophisticated. Separate targeted killing programs are operated by the CIA and by the military s Joint Special Operations Command (JSOC). Defense activities are authorized under Title 50 of the United States Code, whereas intelligence activities are authorized under Title 10 of the United States Code. This is significant, because it is not clear if the CIA and Pentagon interpret the relevant legal authorities in the same way. From , there were 51 reported drone strikes in Pakistan, Yemen and Somalia (See accompanying chart.) 1 While the U.S. government does not report the number of deaths from drone strikes, independent groups have estimated that the drone program has claimed between 2,600 and 4,350 lives so far, though the number of civilian casualties remains unclear. The London-based Bureau of Investigative Journalism, which appears to provide the most reliable and updated information 2, estimates that percent of deaths from drone strikes are civilian casualties. 3 The Obama Administration claims civilian casualties are rare, but has provided no data to confirm this. Moreover, the Obama administration has made contradictory statements regarding casualty numbers 4 and uses misleading definitions of combatant and civilian, undermining the credibility of official claims that civilian casualties are low. Because the

2 targeted killing program is classified, it is difficult to verify data or operational details about the program. Legal Analysis Targeted killings, including with the use of drones, are lawful when carried out in compliance with both domestic and international law. Targeted killing is lawful in an armed conflict only pursuant to the rules of International Humanitarian Law ( IHL, also known as the laws of war or the law of armed conflict ), which permit lethal targeting of individuals who are members of an enemy s armed forces or civilians directly participating in hostilities. IHL targeting rules only apply in armed conflict. For hostilities between a state and an armed group to be considered armed conflict under international law, they must be conducted by a centrally organized armed group, for a prolonged period of time, and reach a certain level of intensity. 5 These requirements are necessary to maintain the boundary between rules that govern during armed conflict and rules that govern in times of relative peace, including situations in which there are sporadic acts of violence or lowlevel domestic disturbances. Outside of an armed conflict, targeted killing is only permissible when conducted in accordance with human rights law that is, when the target poses an imminent threat presenting a substantial risk to life that cannot be eliminated by other means. The Obama administration claims to be at war with groups beyond those authorized under domestic or international law. As a result, it is wrongly applying the more permissive targeting standards of IHL in situations that do not rise to the level of an armed conflict. The Obama administration claims to be in an armed conflict with al Qaeda, the Taliban, and associated forces. It has never publicly disclosed which organizations it considers associated forces, though it appears, at minimum, to consider al Qaeda in the Arabian Peninsula (AQAP) and possibly al-shabaab to be associated forces. The administration has not demonstrated that these or other unnamed associated forces are sufficiently organized or conducting hostilities against the United States with a level of sustained intensity that would constitute armed conflict, as opposed to sporadic acts of violence. Publicly-available information about these groups suggest that they are not centrally organized and/or not engaged in substantial hostilities against the United States. Lethal targeting by the military is also constrained by the 2001 Authorization for the Use of Military Force, which only permits uses of force against those responsible for the 9/11 attacks. 6 The Obama administration appears to be lethally targeting a broader range of individuals than the laws of war allow. Even if all of the United States lethal targeting were occurring within the legal framework of an armed conflict, the Obama administration s stated targeted killing policy seems out of step with international law. According to counterterrorism advisor John Brennan, the Obama administration takes the view that all members of al Qaeda, the Taliban, or associated forces are targetable just as commanders of the enemies armed forces were targetable during World War II. 7 However, unlike in a traditional armed conflict between states ( International Armed Conflict or IAC ) that typically maintain standing armies comprised of members that wear uniforms, armed conflicts with non-state Chart produced by The Washington Post. Source: Staff reports. Greg Miller, Bill Webster and Gene Thorp/The Washington Post. Published on December 27, 2011.

3 actors ( non-international armed conflicts or NIAC ) often involve hostilities with civilians who have decided to take up arms and engage in combat. Because such individuals do not wear uniforms and often mix with the broader civilian population, international law requires that extra care be taken to ensure that only those who are directly participating in hostilities are the object of attack. Under IHL, individuals who are directly participating in hostilities are subject to attack while they do so. In addition, individuals who assume a continuous combat function serving as a bomb maker, for example within an organized armed group are subject to attack at all times until they cease to assume that function. 8 However, contrary to the assertions of the Obama administration, IHL does not permit members of terrorist groups to be lethally targeted based on their membership status. Couriers, financiers, and cooks, for example, may be members of al Qaeda, but such individuals are not lawfully subject to attack unless and until they directly participate in hostilities or assume a continuous combat function in an organized armed group. The Obama administration appears to be lethally targeting individuals who do not pose an imminent threat. Targeted killing may be used in the absence of armed conflict to repel an imminent threat, but the concept of imminence has limits. John Brennan has said that the administration takes a flexible view of imminence, 9 but it s not clear what that means. Reports that the administration places individuals on a kill list approved by the President for months or years stretches any contemporary understanding of imminence. International human rights law demands that outside of an armed conflict, lethal force is used only as a last resort, and in response to an imminent threat that poses a substantial risk to human life. News reports suggest that in its lethal targeting, the Obama administration is failing to adequately distinguish civilians from combatants, as the law requires. Although the Obama administration claims that targeted killings are conducted in a precise and lawful manner, these claims are contradicted by news reports 10 that the administration counts all military-age males within a strike zone as combatants, 11 irrespective of whether the United States has determined that these individuals were directly participating in hostilities. This practice is a clear violation of IHL, which requires that civilians be distinguished from combatants and further requires positive identification of individuals as valid military objectives prior to commencing a strike. In addition, IHL only permits targeting when the anticipated civilian casualties would be proportional to the military gain associated with the strike. Presuming that all military-age males are combatants not only undercounts civilian casualties, it also seriously compromises any attempt to comply with the IHL principle of proportionality. Policy Considerations The lack of a clear U.S. position on who is targetable sets a dangerous precedent for other countries. The manufacture and sale of UAVs is an increasingly global industry and drone technology is not prohibitively complicated. As a result, some 70 countries already possess UAVs 12 and others are in the process of acquiring them. As John Brennan stated: the United States is "establishing precedents that other nations may follow, and not all of them will be nations that share our interests or the premium we put on protecting human life, including innocent civilians." 13 By declaring that the United States is in an armed conflict with al Qaeda, the Taliban, and associated forces without articulating geographic, temporal, or other conceptual limits on the scope of the armed conflict, the United States is inviting other countries to similarly declare armed conflicts against groups for purposes of assuming lethal targeting authorities. Moreover, by announcing that all members of such groups are targetable, the United States is establishing exceedingly broad precedent for targeted killing, even if it is not utilizing the full scope of this claimed authority. Because international law does not distinguish between types of groups, or the particular justifications groups take to resort to hostilities, U.S. precedent does not preclude other countries from similarly misinterpreting international law to target political dissidents, ethnic minorities, separatist movements, or any other groups that may not be thought of as terrorist organizations by the United States. It is also not clear that the current broad targeted killing policy serves any long-term strategic interest in the global struggle to combat international terrorism. Although it has

4 been reported that some high-level operational leaders of al Qaeda have been killed in drone attacks, studies show that s only a tiny fraction of those who are killed. A New America Foundation study found only two percent are high-level "militants" 14 ; a Brookings Institute study concluded about 10 civilians are killed for every "mid and high ranking" terrorist leader. 15 National security analysts and former U.S. military officials increasingly question whether such tactical gains outweigh the strategic costs of the targeted killing program. Those costs include growing anti-american sentiment and increased recruiting for al Qaeda. Former Secretary of Defense Donald Rumsfeld once asked, Are we capturing, killing or deterring and dissuading more terrorists than [they] are recruiting, training and deploying? 16 Many commentators and former officials have noted that the targeted killing program will not defeat al Qaeda and only undermines relations with countries with which counterterrorism cooperation is necessary. The former Director of National Intelligence, Admiral Dennis Blair, has stated: Drone strikes are no longer the most effective strategy for eliminating Al Qaeda s ability to attack us.qaeda officials who are killed by drones will be replaced. The group s structure will survive and it will still be able to inspire, finance and train individuals and teams to kill Americans. Drone strikes hinder Qaeda fighters while they move and hide, but they can endure the attacks and continue to function.our dogged persistence with the drone campaign is eroding our influence and damaging our ability to work with Pakistan to achieve other important security objectives like eliminating Taliban sanctuaries, encouraging Indian-Pakistani dialogue, and making Pakistan s nuclear arsenal more secure. 17 Similar patterns are playing out in Yemen. The Washington Post based on 20 interviews with tribal leaders, victims relatives, human rights activists and officials from four provinces in southern Yemen reported that drone strikes in Yemen are causing a strong shift in sentiment toward militants affiliated [with al Qaeda in the Arabian Peninsula]. 18 Moreover, AQAP operatives killed in U.S. drone attacks are quickly replaced. 19 In The New York Times, Ibrahim Mothana, a 23-year-old Yemeni democracy activist warned of negative consequences of the ongoing drone campaign: Certainly, there may be short-term military gains from killing militant leaders in these strikes, but they are minuscule compared with the long-term damage the drone program is causing. A new generation of leaders is spontaneously emerging in furious retaliation to attacks on their territories and tribes. This is why A.Q.A.P. is much stronger in Yemen today than it was a few years ago. In 2009, A.Q.A.P. had only a few hundred members and controlled no territory; today it has, along with Ansar al-sharia, at least 1,000 members and controls substantial amounts of territory. 20 Robert Grenier, a former high-level CIA official, confirms this view, stating: [w]e have gone a long way down the road of creating a situation where we are creating more enemies than we are removing from the battlefield.i am very concerned about the creation of a larger terrorist safe haven in Yemen. 21 A 2008 Rand Corp. study, How Terrorist Groups End: Lessons for Countering al Qa ida 22, studied 268 terrorist groups that ended between 1968 and 2006 and found that the vast majority were not eliminated by military force, but either by a peace agreement reached with the government (43 percent) or by infiltration by local police and intelligence agencies (40 percent). Only seven percent were eliminated by military force, which was usually ineffective because terrorists would simply transfer their activity to another area, and the problem remains unresolved. This appears to have been the result of the U.S. drone program in Pakistan as well. Finally, two recent reports, one from Stanford and NYU Law Schools 23 and the other from Center for Civilians in Conflict and Columbia Law School s Human Rights Clinic, 24 confirm the heavy toll of drone strikes on civilians in Pakistan and Yemen, and their role in fomenting anti-american sentiment. The vast majority of terrorism suspects around the world are handled using law enforcement and intelligence methods that do not pose the same problems as the drone campaign. Over the past decade, more than 120,000 suspected terrorists have been arrested around the world, and more than 35,000 have been convicted. 25 Moreover, the United States has broad tools to detain and ultimately prosecute terrorists, including individuals arrested abroad well before any terrorist attack has been committed. 26 Some have noted that law enforcement methods may not be appropriate in the otherwise lawless regions of Pakistan, Yemen, and Somalia. But the U.S. targeted killing program must comply with the rule of law. While it is lawful to kill

5 individuals as a last resort and in response to an imminent threat that poses a substantial risk to human life, the current targeted killing program, resulting in thousands of deaths, appears to be far broader than what the rule of law allows. Supporting local security and governance mechanisms that are best positioned to prevent and respond to terrorism in their own countries is the most sustainable and effective counterterrorism strategy over the long term. Recommendations n The Obama administration must bring its targeted killing policy in line with all applicable laws. It should clarify the criteria being used to determine the scope of the ongoing armed conflict against international terrorist organizations, and it should confirm that we are only lawfully at war with those individuals and groups that attacked us on September 11, 2001 and which remain sufficiently organized and engaged in hostilities to be in an armed conflict with the United States. It should make clear that lethal targeting of suspected terrorists is not permissible based on mere membership in a terrorist organization without a showing that the individual in question is directly participating in hostilities or serving in a continuous combat function in an organized armed group. It should clarify that it will not use lethal force against those based on suspicious activity ( signature strikes ) without first ascertaining that each of these individuals is a lawful military objective and that the United States is complying with the principles of distinction and proportionality. And it should clarify that outside of a lawfully-recognized armed conflict, the United States will use lethal force only as a last resort, and in response to an imminent threat that poses a substantial risk to human life. are entitled to know whom their government is killing in their name and why. As a first step, the Obama administration should release a copy, with as few redactions as possible, of the Office of Legal Counsel s memorandum on the lethal targeting of Anwar al- Awlaki an account of which has appeared in The New York Times. 27 The administration should also release all other Office of Legal Counsel memoranda setting forth its legal analysis of and justification for the targeted killing program. n The Obama administration must provide sufficient information to be held accountable for its targeted killing program. The Obama administration should provide additional information to clarify the criteria for lethal targeting decisions, the process by which targeting decisions are made, and the mechanisms in place to provide accountability and remedy for violations of the law. Given the increasing use of targeted killings by drones over the last three years, the American people

6 1 Chart outlines number of drone strikes per year in Pakistan, Yemen, and Somalia. Chart produced by the New York Times, with data sourced from the Long War Journal, available at: 2 Stanford/NYU, Living Under Drones, p.53, available at: 3 Chris Woods, Drone War Exposed the complete picture of CIA strikes in Pakistan, BUREAU OF INVESTIGATIVE JOURNALISM, available at: 4 Justin Elliott, Obama Administration s Drone Death Figures Don t Add Up, PROPUBLICA, June 18, 2012, available at: 5 Int l Committee of the Red Cross, Interpretive Guidance on the Notion of Direct Participation in Hostilities Under International Humanitarian Law, Vol. 90/Number 872, December The 2001 Authorization for Use of Military Force states that the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons. 7 John Brennan, Assistant to the President for Homeland Security and Counterterrorism, Remarks at Wilson Center, April 30, 2012, available at: /p Int l Committee of the Red Cross, Interpretive Guidance on the Notion of Direct Participation in Hostilities Under International Humanitarian Law, Vol. 90/Number 872, December John Brennan, Assistant to the President for Homeland Security and Counterterrorism John Brennan, Remarks at Wilson Center, April 30, 2012, available at: 10 Jo Becker and Scott Shane, Secret Kill List Proves a Test of Obama s Principles and Will, N.Y. TIMES, May 29, 2012, available at: 11 Id. 12Peter Bergen and Jennifer Rowland, A Dangerous New World of Drones, CNN, October 2, 2012, available at: 13 John Brennan, Assistant to the President for Homeland Security and Counterterrorism John Brennan, Remarks at Wilson Center, April 30, 2012, available at: Daniel L. Byman, Do Targeted Killings Work?, Brookings July 14, 2009, available at: 16 Rumsfeld s War on Terror Memo, USA TODAY, available at: 17 Dennis C. Blair, Drones Alone Are Not the Answer, N.Y. TIMES, August 15, 2011, available at: 18 Sudarsan Raghavan, In Yemen, U.S. airstrikes breed anger, sympathy for al- Qaeda, WASH. POST, May 29 th, 2012, available at: 19 Sudarsan Raghavan, In Yemen, Tribal Militia s in Fierce Battle With Al Qaeda Wing, Wash. Post, Sept. 11, 2012, available at: fierce-battle-with-al-qaeda-wing/2012/09/10/0cce6f1e-f2b2-11e1-b74c- 84ed55e0300b_story.html. 20 Ibrahim Mothana, How Drones Help al-qaeda, N.Y. TIMES, June 13 th, 2012, available at: 21 Paul Harris, Drone attacks create terrorist safe havens, warns CIA official, THE GUARDIAN, June 5 th, 2012, available at: 22 Seth G. Jones, Martin C. Libicki, How Terrorist Groups End, Lessons for Countering al Qa'ida, Rand Corp. 2008, available at: 23 Stanford/NYU, Living Under Drones, September 2012, available at: 24 CIVIC/Columbia University, The Civilian Impact of Drones: Unexamined Costs, Unanswered Questions, September 2012, available at: 25 Hillary Clinton, Secretary of State, Speech to Global Counterterrorism Forum in Istanbul, June 7, 2012, available at: zz20fbo2zzq. 26, In Pursuit of Justice, 2009, available at: 27 Charlie Savage, Secret U.S. Memo Made Legal Case to Kill a Citizen, N.Y. TIMES, October 8, 2011, available at: 14 Peter Bergen and Katherine Tiedemann, Washington s Phantom War, Foreign Affairs, July/August 2011, available at: