July 4, 2016
More than three years after President Barack Obama pledged to be transparent about the United States' lethal drone program, his administration has finally come forward with an accounting of the numbers of civilian deaths that resulted from drone strikes between Jan. 20, 2009, and Dec. 31, 2015. But they only cover airstrikes "outside areas of active hostilities," which encompasses Pakistan, Yemen, Somalia and Libya. Civilian deaths in Afghanistan, Iraq and Syria are not included in the report.
As expected, the administration’s numbers are significantly lower than tallies documented by leading nongovernmental organizations (NGOs), including the London-based Bureau of Investigative Journalism, New America and The Long War Journal. Obama’s Office of the Director of National Intelligence (DNI) sets the figure of “noncombatant deaths” at between 64 and 116. The NGOs , however, estimate between 200 and 1,000 civilian deaths occurred as a result of U.S. drone strikes in the areas, and during the time periods, covered by the DNI report.
The DNI report omits significant details that would enable the public to fully assess its claims, including the locations, dates, numbers and names of both civilians and combatants killed in each airstrike. Micah Zenko, a senior fellow at the Council on Foreign Relations, told The Washington Post that releasing raw numbers without explanation "leaves reason to remain skeptical of the government's claims. You can't grade your own homework."
There is good reason to distrust the DNI's claimed numbers of civilian casualties. "Every previous (rare) public, on-record statement made by the Obama administration on the program has been shown to be false or deeply misleading," the international human rights organization Reprieve noted in a recent report. "Moreover, the administration has repeatedly shifted the goal posts, secretly redefining who can be targeted and what it means to be a civilian," it said.
One of the Obama administration's most notorious lies was the statement of current CIA Director and former counterterrorism adviser John Brennan, who claimed in June 2011 that there had not been a "single collateral death" caused by drones in 2010-2011. As Reprieve reports, the CIA knew that statement was false at the time it was made. The Bureau of Investigative Journalism documented at least 45 civilian casualties during that period.
While the DNI report is far from perfect, it provides much more information than the administration previously disclosed. Before the report was released, the U.S. had admitted responsibility for only two civilian deaths: the 2015 accidental killing of two aid workers held hostage by al-Qaida in Pakistan. Both those victims were Westerners.
But much more information is needed. It is disappointing that the report lumps together seven years of airstrikes, making it impossible to gauge whether Obama is complying with the rules he established in 2013 for his targeted killings.
The 2013 Presidential Policy Guidance remains classified. The White House released a fact sheet that year requiring that strikes outside areas of active hostilities be taken only in the face of a "continuing, imminent threat to U.S. persons" and when there is "near certainty that the terrorist target is present."
Although the fact sheet did not define "continuing" or "imminent," a leaked 2011 Department of Justice white paper said that a U.S. citizen can be killed even when there is no "clear evidence that a specific attack on U.S. persons and interests will take place in the immediate future." This makes a mockery of the "imminence" requirement for killing U.S. citizens. The administration presumably sets an even lower bar for noncitizens.
It is impossible to fathom how the administration can have near certainty that a terrorist target is present. One type of drone attack is called a "signature strike," also known as a crowd killing. A signature strike does not target specified individuals but rather areas of suspicious activity. In many instances, the U.S. doesn't know whom it is killing.
Along with the DNI report, Obama released an executive order prioritizing the protection of civilians and requiring that future administrations be forthcoming about annual deaths from the drone program. One wonders why Obama waited until seven years into his presidency and seven months before leaving office to prioritize the protection of civilians and advocate transparency. And any future president is free to modify or rescind his order.
Obama's order says, "Civilian casualties are a tragic and at times unavoidable consequence of the use of force in situations of armed conflict or in the exercise of a state's inherent right of self-defense."
It is puzzling that Obama would invoke the United Nations Charter's right of self-defense - the only exception to the charter's prohibition of military force. The charter permits a state to act in self-defense only after an armed attack on the United States or another U.N. member state. Pakistan, Yemen, Somalia and Libya have not mounted an armed attack against the U.S. or any other U.N. member country. (Neither have Iraq, Afghanistan or Syria, for that matter.) So there is no lawful basis for the U.S. to claim it is acting in self-defense when it launches airstrikes in those countries.
When a state is engaged in armed conflict, it must abide by the laws of war, or international humanitarian law. That means the use of force must satisfy the distinction and proportionality requirements. In order to comply with the distinction mandate, the state must always distinguish between combatants and civilians. Proportionality means that an attack cannot be excessive in relation to the anticipated military advantage.
The evidence shows we cannot trust the administration to comply with these legal requirements. "The Drone Papers" is a treasure trove of secret military documents provided to The Intercept by an anonymous whistleblower, a member of the intelligence establishment. Those documents indicate that the administration labels unidentified males who are killed in a strike zone "enemies killed in action," unless there is evidence posthumously proving they were not terrorists or "unlawful enemy combatants."
Perhaps most disturbing, "[Obama's] order further institutionalized and normalized air strikes outside conventional war zones as a routine part of 21st-century national security policy," Charlie Savage and Scott Shane wrote in The New York Times. Like his predecessor, Obama defines the whole world as his battlefield, reserving for himself the role of judge, jury and executioner. Compliance with due process (arrest and fair trial), which the U.S. Constitution guarantees all persons, not just U.S. citizens, has not been a priority in the Obama administration's "war on terror."
Drone strikes will not conquer terrorism. The bipartisan Stimson Task Force, composed of senior military and intelligence officials, warned that the "secret war" of lethal drone strikes was "creating a slippery slope toward continual or widening conflict and instability."
Four former Air Force service members who participated in the drone program are Brandon Bryant, Michael Haas, Stephen Lewis and Cian Westmoreland. They wrote an open letter to Obama saying that the drone program has "fueled the feelings of hatred that ignited terrorism and groups like [Islamic State]" and that the killing of civilians in drone strikes has been one of the most "devastating driving forces for terrorism and destabilization around the world."
Marjorie Cohn is professor emeritus at Thomas Jefferson School of Law and former president of the National Lawyers Guild. She writes and speaks about human rights and U.S. foreign policy. Her most recent book is "Drones and Targeted Killing: Legal, Moral, and Geopolitical Issues." Visit her website and follow her on Twitter at @marjoriecohn.
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