10 July 2014

Drones and targeted killing

The 81 page Stimson Center report [PDF] from its Task Force on US Drone Policy
represents a preliminary effort to offer analysis and recommendations that could help shape and guide US UAV policy going forward. It looks at the military and national security benefits of UAV technologies, analyzes our current approaches to UAV development and export, and seeks to contextualize the strategic questions relating to the use of lethal UAVs outside traditional battlefields. Ultimately, it offers eight detailed recommendations for overhauling UAV strategy; improving oversight, accountability and transparency; developing forward-looking international norms relating to the use of lethal force in nontraditional settings; and devising sound UAV export control and research and development policies.
The report states
With their long loiter time, sophisticated sensors and extensive operational reach, unmanned aerial vehicles (UAVs) are an attractive option for a wide range of military and intelligence tasks, including intelligence and reconnaissance, disaster relief and humanitarian assistance, transportation, the provision of close air support to soldiers in combat, and strikes against targets in relatively distant or inaccessible locations. While the overseas use of UAVs for intelligence, reconnaissance, transport and close air support has been largely uncontroversial, the growing use of lethal UAVs for targeted counterterrorism strikes away from so-called “hot battlefields” has generated substantial attention and criticism. US government officials argue that such strikes are both lawful and effective: as President Obama said in his May 2013 speech at the National Defense University,
“Dozens of highly skilled al-Qaida commanders, trainers, bomb makers and operatives have been taken off the battlefield. Plots have been disrupted. … Simply put, these strikes have saved lives. Moreover, America’s actions are legal. … [T]his is a just war — a war waged proportionally, in last resort, and in self-defense."
Nevertheless, many commentators question the strategic value of US UAV strikes for counterterrorism purposes, arguing that the availability of lethal UAVs has fueled a “whack-a-mole” approach to counterterrorism, drawn attention from non-kinetic means of combating terrorist organizations, increased anti-American sentiment, eroded norms of sovereignty in ways ultimately likely to be detrimental to US interests, and created a slippery slope toward continual or widening conflict and instability. Others charge that UAV strikes cause excessive civilian casualties, or worry about the ethical and psychological impact of what they view as “remote-control killing.” Finally, many critics charge that the availability of lethal UAV technologies has tempted the United States to engage in a largely covert campaign of targeted killing, creating, in effect, a “secret war” governed by secret law. In particular, controversy has swirled around what critics view as the relative lack of transparency and accountability in US targeted killings, and the potential implications this has for domestic and international rule of law, especially if other states — including many not known for their human rights records — mimic US precedents. 
 The  Task Force
believes that UAVs should be neither glorified nor demonized. It is important to take a realistic view of UAVs, recognizing both their continuities with more traditional military technologies and the new tactics and policies they enable. Most US military UAVs are not weaponized, and only a tiny fraction of US government UAV missions involve targeted UAV strikes outside of traditional, territorially defined battlefields such as those in Afghanistan, Iraq and Libya. Further, UAVs are not a US “super-weapon:” while their use has led to significant tactical successes, they are not strategic weapons, and they currently have substantial vulnerabilities as well as strengths. The United States does not have a monopoly on UAV technologies or an ability to predict all potential countermeasures; indeed, there is reason to fear the rapid and uncontrolled proliferation of UAV technologies developed in other states, along with the rapid evolution of technologies designed to counter UAVs. While we do not believe that UAV strikes cause disproportionate civilian casualties or turn killing into a “video-game,” we are concerned that the availability of lethal UAV technologies has enabled US policies that likely would not have been adopted in the absence of UAVs. In particular, UAVs have enabled the United States to engage in the cross-border use of lethal force against targeted individuals in an unprecedented and expanding way, raising significant strategic, legal and ethical questions. Strategic Questions We are concerned that the Obama administration’s heavy reliance on targeted killings as a pillar of US counterterrorism strategy rests on questionable assumptions, and risks increasing instability and escalating conflicts. While tactical strikes may have helped keep the homeland free of major terrorist attacks, existing evidence indicates that both Sunni and Shia Islamic extremist groups have grown in scope, lethality and influence in the broader area of operations in the Middle East, Africa and South Asia. Furthermore, US targeted strikes also create new strategic risks. These include possible erosion of sovereignty norms, blowback and risks of a slippery slope into continual conflict.
Erosion of sovereignty norms:
The US government takes the view that it has a legal right to use force in the territories of foreign sovereign states when those states are “unwilling or unable” to take what the United States considers appropriate action to eliminate what it sees as imminent threats. But inevitably, assessments of what constitutes an imminent threat to the United States and what would constitute appropriate action are somewhat subjective in nature; the United States may view the use of force as justified even when US allies and partners do not. The US use of force in sovereign nations whose consent is questionable or nonexistent may encourage other states to follow suit with their own military platforms or commercial entities.
Civilian casualties, even if relatively few, can anger whole communities, increase anti-US sentiment and become a potent recruiting tool for terrorist organizations. Even strikes that kill only terrorist operatives can cause great resentment,  particularly in contexts in which terrorist recruiting efforts rely on tribal loyalties or on an economically desperate population. UAV strikes by the United States have also generated a backlash in states not directly affected by the strikes, in part due to the perception that such strikes cause excessive civilian deaths, and in part due to concerns about sovereignty, transparency, accountability and other human rights and rule of law issues.
Slippery Slope:
The increasing use of lethal UAVs may create a slippery slope leading to continual or wider wars. The seemingly low-risk and low-cost missions enabled by UAV technologies may encourage the United States to fly such missions more often, pursuing targets with UAVs that would be deemed not worth pursuing if manned aircraft or special operation forces had to be put at risk. For similar reasons, however, adversarial states may be quicker to use force against American UAVs than against US manned aircraft or military personnel. UAVs also create an escalation risk insofar as they may lower the bar to enter a conflict, without increasing the likelihood of a satisfactory outcome.
The US use of lethal UAVs for targeted strikes outside of hot battlefields is likely to be imitated by other states. Such potential future increase in the use of lethal UAV strikes by foreign states may cause or increase instability, and further increase the risk of widening conflicts in regions around the globe.
Lack of Strategic Analysis:
In recent years, US targeted strikes involving UAVs have gone from a relative rarity to a relatively common practice in Pakistan and Yemen. As the number of strikes increases, so, too, does the strategic risk. To the best of our knowledge, however, the US executive branch has yet to engage in a serious cost-benefit analysis of targeted UAV strikes as a routine counterterrorism tool.
There are numerous non-kinetic means of combatting terrorism; some of these — e.g., efforts to disrupt terrorist communications and finances — can easily be combined with targeted strikes, while others — e.g., efforts to build friendly relationships with local communities and inspire cooperation — may be less easily combined. A serious counterterrorism strategy needs to consider carefully, and constantly reassess, the balance between kinetic action and other counterterrorism tools, and the potential unintended consequences of increased reliance on lethal UAVs.
Legal and Ethical Issues Transparency:
The administration has disclosed details relating to only a handful of targeted strikes against American citizens: for the most part, the identities of those targeted and the basis for their targeting have not been disclosed. Details relating to incidents that may have involved civilian casualties also have not been disclosed. In formal court filings, the administration continues to state that it will neither confirm nor deny particular strikes, or even the existence of such strikes as a general matter. We recognize that US officials frequently have compelling reasons to refrain from providing some of this information to the public, and we believe that US government decision-makers make targeting decisions in good faith and with genuine care. Nonetheless, we are concerned by the continuing lack of transparency relating to US targeted killings.
Law versus the Rule of Law:
From a US government perspective, the United States is in an armed conflict with al-Qaida and its “associated forces.” As an international law matter, the existence of an armed conflict triggers the applicability of the law of armed conflict, which permits the United States to target al-Qaida operatives as enemy combatants. By extension, members of organizations that fight alongside al-Qaida are also targetable as co-belligerents — and unlike ordinary domestic law or international human rights law, the law of armed conflict does not require the United States to provide “due process” to enemy combatants before targeting them. International law also recognizes that states have the right to use armed force outside their own borders when doing so is necessary to prevent an imminent attack, and US officials have therefore argued that targeted strikes against terror suspects are permitted both under the law of armed conflict and under the international law of self-defense.
These are plausible interpretations of the law, and we disagree with those critics who have declared that US targeted killings are “illegal.” But changing technologies and events have made it increasingly difficult to apply the law of armed conflict and the international law relating to the use of force in a consistent and principled manner, leading to increasing divergence between “the law” and core rule of law principles that traditionally have animated US policy.
The rise of transnational non-state terrorist organizations confounds preexisting legal categories. In a conflict so sporadic and protean, the process of determining where and when the law of armed conflict applies, who should be considered a combatant and what count as “hostilities” is inevitably fraught with difficulty. While our military and intelligence communities have grown increasingly adept both at identifying and confirming the identities of al-Qaida affiliates and at precise and careful targeting, the criteria used to determine who might be considered targetable remain unknown to the public. Similarly, it is difficult to understand how the US government determines the “imminence” of unknown types of future attacks being planned by unknown individuals.
These enormous uncertainties are multiplied further when the United States relies on intelligence and other targeting information provided by a host nation government: how can we be sure we are not being drawn into a civil war or being used to target the domestic political enemies of the host state leadership?
The legal norms governing armed conflicts and the use of force look clear on paper, but the changing nature of modern conflicts and security threats has rendered them almost incoherent in practice. Basic categories such as “battlefield,” “combatant” and “hostilities” no longer have clear or stable meaning. When this happens, the rule of law is threatened. The United States was founded upon rule of law principles, and historically has sought to ensure that its own actions, international law and the actions of foreign states are consistent with these principles. Today, however, despite the undoubted good faith of US decision-makers, it would be difficult to conclude that US targeted strikes are consistent with core rule of law norms. 
International Precedents:
From the perspective of many around the world, the United States currently appears to claim, in effect, the legal right to kill any person it determines is a member of al-Qaida or its associated forces, in any state on Earth, at any time, based on secret criteria and secret evidence, evaluated in a secret process by unknown and largely anonymous individuals — with no public disclosure of which organizations are considered “associated forces” (or how combatant status is determined or how the United States defines “participation in hostilities”), no means for anyone outside that secret process to raise questions about the criteria or validity of the evidence, and no means for anyone outside that process to identify or remedy mistakes or abuses. US practices set a dangerous precedent that may be seized upon by other states — not all of which are likely to behave as scrupulously as US officials.
Democratic Accountability:
Increased US reliance on lethal UAVs in cross-border targeted strikes also poses challenges to democracy and the American system of checks and balances. While we understand the administration’s reasons for considering additional transparency difficult, the effect of the lack of transparency is that the United States has been fighting what amounts to a covert, multi-year killing program. Without additional information, the citizenry cannot evaluate US targeted strikes.
Unmanned aerial vehicle strikes also raise questions about the continued efficacy of traditional congressional oversight mechanisms. The Obama administration continues to rely on the 2001 Authorization for Use of Military Force (AUMF) as the primary domestic legal basis for US targeted strikes outside of “hot” battlefields, but the administration’s interpretation of the AUMF is extraordinarily broad — and even many former executive branch officials question whether Congress intended to authorize such an unbounded conflict when the AUMF was passed in 2001.
The covert or unacknowledged nature of most UAV targeted strikes also makes it difficult for Congress to perform its vital oversight functions. CIA UAV strikes constitute “covert action” under US law, which means that the CIA need not give prior notice of particular covert operations to any members of Congress except the so-called “Gang of Eight.” After a covert action, the executive branch is required to notify the full intelligence committees, but not the full Congress.
By law, the US military is prohibited from engaging in covert action. It is important to emphasize, however, that the military is not prohibited from engaging in secret, unacknowledged activities that are intended to remain unacknowledged, as long as these activities constitute “traditional military activities” under US law.
From the perspective of laypersons, both the CIA and the military can thus engage in covert strikes in the colloquial sense of the term. But while covert action undertaken by the CIA requires a presidential finding and notification — even if after the fact — of the congressional intelligence committees, secret, unacknowledged strikes carried out by the US military need not be reported to the intelligence committees, as the military reports instead to the House and Senate Armed Services committees.
At best, this fragmented oversight system creates confusion and a danger that critical issues may slip through the cracks. This fragmented oversight system is particularly  problematic given that in practice, the military and CIA generally work together quite closely when planning and executing targeted UAV strikes: few strikes are “all military” or “all CIA.” The differing CIA and military reporting requirements create a risk of executive branch “forum shopping,” tempting the executive branch to place a given targeted strike under the direction and control of whichever entity is deemed to have the most accommodating committee members. Even when the appropriate congressional committees are fully briefed, the classified nature of targeted strikes, whether CIA or military, makes oversight a challenge.
Future Technological Developments
UAV technologies will continue to evolve rapidly. Looking into the near future, it seems likely that an increasing number of weapons will be adapted for use on UAV platforms such that any weapon developed for a manned aircraft will soon be launchable from an unmanned aircraft. UAVs will become more interoperable, and system software likely will evolve to integrate multiple UAVs across an entire “combat cloud.” Autonomous UAV capabilities will also likely be developed.
These likely future technological developments have the potential to be used both for good and for ill, and the time to discuss their potential implications is now. Among other things, we will need to reevaluate existing UAV-related Federal Aviation Administration rules and export control rules; at the moment, US export control rules for UAVs do not appear well-suited to advancing US national security objectives.
It offers the following recommendations -
1. Conduct a rigorous strategic review and cost-benefit analysis of the role of lethal UAVs in targeted counterterrorism strikes to evaluate the impact of past UAV strikes on terrorist organizations, affected communities, public opinion, litigation, defense policy and government cooperation with allies and partner nations.
2. Improve transparency in targeted UAV strikes: as a general principle, the United States should acknowledge the use of lethal force in foreign countries both to Congress and to the American public. While secrecy may be required before and during each strike, strikes generally should be acknowledged by the United States after the fact. The president should publicly release information on: the approximate number and general location of targeted UAV strikes; the number of individuals known to have been killed and their organizational affiliations; the number and identities of any civilians known to be killed, and the approximate number of strikes carried out by the military versus the CIA. The president should also order the preparation and public release of a detailed report explaining the legal basis under domestic and international law for the United States conducting targeted killings.
3. Transfer general responsibility for carrying out lethal UAV strikes from the CIA to the military. While rare exceptions may be warranted, as a general principle, the military should be the entity responsible for the use of lethal force outside the United States, while the CIA should focus on intelligence collection and analysis.
4. Develop more robust oversight and accountability mechanisms for targeted strikes outside of traditional battlefields. The president should, by executive order, create a nonpartisan, independent commission to review lethal UAV policy. Members of this independent commission should be selected with a view to ensuring credibility and diversity of background. The commission should not be directly involved in the pre-strike approval process, but should be tasked with reviewing the overall policy and approval process for the use of lethal UAV strikes (both military and CIA); unclassified versions of the commission’s reports to the president and Congress should be released publicly.
5. Foster the development of appropriate international norms for the use of lethal force outside traditional battlefields. These norms should rest upon a joint commitment to ensuring that states have the ability to respond effectively to nontraditional threats from nontraditional actors and a commitment to ensuring that the use of lethal force remains consistent with core rule of law principles and respect for fundamental human rights. Rules and practices relating to the state use of lethal force should be transparent and clear; lethal force should not be used without adequate safeguards to prevent arbitrariness and protect against error and abuse; and impartial accountability mechanisms must be available to investigate credible allegations of error and abuse, and, if appropriate, provide remedies.
6. Assess UAV-related technological developments and likely future trends, and develop an interagency research and development strategy geared toward advancing US national security interests in a manner consistent with our values. This review should also flag any legal, ethical and strategic implications of emerging UAV-related technologies, including the possible future development of autonomous weapons systems, and lead to the development of a holistic interagency research, development and use strategy for UAVs.
7. Review and reform UAV-related export control rules and FAA rules, with a view to minimizing unnecessary regulatory burdens on the development of the US UAV industry, while still safeguarding our national security interests and ensuring responsible UAV development and use.
8. The FAA should accelerate its efforts to meet the requirements of the 2012 FAA Reauthorization Bill to ensure the safe integration of civil unmanned aircraft systems into the national airspace system by Sept. 30, 2015, as required by law, but also consider whether certain commercial UAVs can be operated safely in the national airspace prior to that date, and make exemptions as permitted as a stopgap measure toward the development of a comprehensive regulatory framework for both government and privately operated UAVs.