Families around the world suffer devastating loss when their relatives are killed in U.S. drone strikes and other attacks. Their suffering is magnified and prolonged by uncertainty and injustice when the U.S. government does not officially acknowledge their loss or explain the strikes, as has frequently been the case for U.S. strikes in Pakistan, Somalia, and Yemen. Continual non-recognition or denial of their harm suggests to families that their loved ones are dispensable, not even worthy of minor recognition. The U.S. government’s failure over the past decade to be transparent and accountable for its lethal force abroad denies the rights and dignity of people injured, and the families of those killed, in strikes; fuels grievances against the United States; undermines the advancement of human rights, the rule of law, and peace and stability; harms democratic accountability in the United States; and damages U.S. credibility abroad.
The U.S. government’s secretive and expanding use of “targeted killings” and drone strikes since the terrorist attacks on September 11, 2001 is highly controversial. For many years, such killings were carried out as part of counter-terrorism operations and in near-complete secrecy by the Central Intelligence Agency (CIA) and the U.S. military’s Joint Special Operations Command (JSOC), including in Pakistan, Somalia, and Yemen, far from any traditional and recognized battlefield. The government did not meaningfully explain their legal basis. The U.S. government has admitted that it killed between 2,867–3,138 people between 2009–2016, in an estimated 526 strikes in areas the government deemed outside of “active hostilities.” Our research reveals that the government has acknowledged approximately 153 strikes, about 20 per cent of the more than 700 reported strikes since 2002. For strikes between 2009 and 2016, independent organizations have recorded an estimated minimum of almost 400 civilian casualties in Pakistan, Somalia, and Yemen, while the government claims that the number is less than 120.
U.S. drone strike and “targeted killing” practices have raised serious concerns about violations of the international law rules that govern the use of force, the destabilizing effects for peace and security, lack of effectiveness in countering terrorism, blowback, the transgression of ethical norms, and harmful precedents. The level of secrecy surrounding the practice has also been a key point of concern. Numerous policymakers, scholars, and civil society representatives have raised alarm about the government’s secrecy about the laws and policies it applies and about its practices and their effects, and the attendant lack of accountability. While the U.S. government has at times voiced its commitment to transparency, many have noted the gulf between the expressed commitment and actual practice. However, there has yet to be a detailed analysis of U.S. transparency practice, or a comprehensive evaluation of the specific ways in which the U.S. government has been secret or transparent about the use of lethal force overseas.
This report deepens understanding of transparency and accountability by evaluating U.S. practice against a set of human rights-based “Ensuring Transparency in the Use of Force Benchmarks.” These benchmarks, grounded in the interests and rights of people impacted by U.S. strikes, international law, and the promotion of the rule of law and democratic accountability, enable detailed assessments of government transparency in the use of lethal force. The benchmarks, designed by the authors of this report, assist policymakers, journalists, and others to track the level of secrecy over time, and enable evaluation of whether a government is improving transparency or rolling back any positive reforms.
This report finds that the United States has been consistently and excessively secret, although it took some positive steps forward starting in 2010, and made particularly important transparency advances in 2016. These transparency reforms should continue to be strengthened and further built upon. The report identifies recommendations the U.S. and other governments should take to advance transparency, account for past harms, meet their human rights obligations, and set a rights-promoting precedent.
The report examines the importance of transparency, and sets out the overlapping justifications for different types of transparency. While secrecy is clearly necessary in certain circumstances, such as to protect genuinely sensitive information, or to protect sources whose lives may be at risk, much information has been withheld that could be disclosed—as demonstrated by some the of U.S. government’s belated disclosures.
Improved transparency is not a panacea for the many concerns related to the U.S. use of force abroad. But transparency matters. It matters for those injured and the families of those killed, compliance with international law, protecting the rule of law, democratic accountability, harm deterrence, and U.S. leadership and credibility.
Transparency about the facts—who was killed, what happened and where, for individual strikes and in overall statistics—matters to those injured and families of those killed in strikes, whose suffering currently remains unacknowledged and unaccounted for. It matters to the general public, who require such information to engage in informed debate about their government’s actions, and to hold their elected representatives to account.
Transparency about the laws and policies being applied to strikes, about the facts of strikes, and about the government’s decision-making and accountability processes, is essential for the rule of law, deterring abuse, enabling oversight, and establishing accountability for abuse. As a prerequisite to accountability, transparency is necessary to ensure that a government adheres to domestic and international legal limits. Rules that are secret fundamentally undermine the rule of law, and rules that lack clarity lend themselves to abuse and weaken the capacity of external actors to assess whether a rule is being implemented in practice. As former U.S. government officials have noted, transparency enhances U.S. government credibility and builds trust with key partners.
Transparency is also required by binding international law. International law requires governments to be transparent about state conduct, and permits only narrow exceptions for secrecy in limited circumstances. Victims have a specific right to a remedy, which includes rights to disclosure and the truth.
This report provides a detailed analysis of the disclosures made by the U.S. government about its lethal force policies and practices. The report focuses on U.S. practice in Pakistan, Somalia, and Yemen, where, for many years, strikes have been carried out far from traditional battlefields and in significant secrecy.
The report reveals the extent to which U.S. government policy and practice remains excessively secret, and also areas in which its transparency has improved. It focuses on four core areas: transparency about applicable law and policy; transparency about actual strike practices; transparency about government decision-making processes; and transparency about accountability. The report evaluates U.S. practice against a five-point scale: ranging from “no or almost no transparency or reform efforts” (red) to “complete transparency or sustained, extensive reform efforts” (green).
The report finds that the U.S. government has been unjustifiably secretive, but took some valuable, if belated, steps forward for transparency between 2010 and 2016. Importantly, the government publicly released some information about legal and policy constraints on and procedures for the use of lethal force abroad. It also released rudimentary statistical data on civilian casualties, and began acknowledging and providing basic information regarding specific strikes in Somalia, from 2014, and Yemen, from 2016. However, far too much remains unknown, with nearly all past strikes and civilian casualties unexplained, strikes in Pakistan remaining almost wholly unacknowledged, little information on accountability and the legal basis for strikes in specific cases, and a continued lack of clarity regarding the application of key legal and policy rules.
This report finds:
1. The U.S. has improved transparency about the legal and policy rules applicable to the use of lethal force overseas, but the rules remain vague and poorly explained. For many years, U.S. strikes were carried out in near-complete secrecy, away from active conflict zones, and the government did not meaningfully explain the laws and policies it was applying to strikes. Belatedly, following litigation and heavy domestic and international pressure for transparency, the U.S. government began in 2010 to publicly explain important elements of its legal reasoning and the legal basis it believes justifies its strikes. Disclosures in 2016 during the last year of the Obama administration were a particularly important step forward for transparency in setting out in broad terms the U.S. government’s view of the legal framework and policies for the protection of civilians.
Despite these steps forward, important details remain unclear. Numerous memoranda explaining the legal basis for specific strikes and operations remain secret. Key legal and policy terms relevant to understanding who, how, and in what circumstances the U.S. government believes it can kill are not clearly defined, affording a wide latitude for interpretation with the potential to undermine constraints on the President’s authority to kill. Without adequate disclosures explaining how the United States interprets, defines, and applies key terms it is difficult both to understand precisely what are the United States’ views of the legal and policy limits on the use of lethal force, and to assess whether the United States is accurately interpreting its binding international legal obligations.
2. 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. For many years, the U.S. government disclosed almost no information at all about specific strikes, and U.S. practices were shrouded in secrecy. Individual strikes were not formally acknowledged at all except in a few, exceptional cases. Changes introduced regarding strikes in Yemen since 2016, and in Somalia since 2014, mean that operations there are usually publicly disclosed. Almost no strikes in Pakistan have been formally acknowledged.
In addition, after the President of the United States formally admitted for the first time in 2013 that “U.S. strikes have resulted in civilian casualties,”the government—very belatedly—released some civilian casualty data in 2016, but the release lacked sufficient detail. Critics have questioned the veracity of the U.S. government’s figures, and it is difficult to engage in a serious review or analysis of the U.S. numbers because the government has provided so little information. The U.S. has not provided basic statistics about the numbers of strikes per country or year, for example, and the information it has provided has been far too general to give the public information necessary to evaluate and understand the nature of its practice of “targeted killings” and drone strikes.
While there have been recent acknowledgments of specific strikes in Somalia and Yemen, they lack detail. For the many years of strikes carried out before the United States began acknowledging them, the government has still provided no individual acknowledgement or explanation, even for strikes in which organizations have put forward detailed and credible allegations of civilian casualties. Strikes in Pakistan remain almost completely secret, causing hurt and anguish to families and survivors, cutting them off from any kind of remedy, and preventing the public from properly understanding and assessing the effects of U.S. actions abroad. Of the 721 strikes in Pakistan, Somalia, and Yemen recorded by The Bureau of Investigative Journalism between January 2002 and May 2017, the government has specifically and formally acknowledged approximately only 153, the large majority since 2014.
The United States has almost never disclosed the names of civilians killed and has released details of investigations and assessments in relation to just a handful of the hundreds of strikes in Pakistan, Somalia, and Yemen. The U.S. government has not given adequate responses to non-governmental organizations (NGOs) who have requested explanations about specific strikes in which there is credible evidence of civilian casualties and potential unlawful killings. It has only officially named one U.S. civilian and one Italian civilian killed in a strike in Pakistan, as well as several other U.S. citizens it said were “not specifically targeted”—an ugly double standard, given that the vast majority of those killed and injured are citizens of Pakistan, Yemen, and Somalia.
3. The U.S. government has provided information on decision-making processes, particularly for the military, but the CIA’s decision-making processes remain highly secretive. For many years, the U.S. government provided only incomplete information about how a decision to carry out a strike was made. In 2016, following lengthy litigation challenging the government’s secrecy, the U.S. government released some information in the form of a Presidential Policy Guidance (PPG) about the institutional actors and process involved in deciding to launch a strike in areas “outside of active hostilities.” The government had previously released a summary of this document in 2013 that described the decision-making process only in the most general terms.
For circumstances not covered by this policy, there remains a stark difference at the agency level between transparency regarding CIA and military decision-making processes. It is very difficult to find publicly available written information about CIA targeting decision-making processes, whereas the U.S. military has, over the years, disclosed the military’s formal targeting decision-making processes in a series of military targeting doctrine documents.
The 2016 release and the information released by the military over the years give some clarity to the chain of command and the key officials responsible for decisions. However, exceptions to decision-making procedures in the 2016 PPG are referenced but not explained, meaning that some types of decision-making processes remain unclear.
4. The U.S. government has disclosed post-strike military investigative procedures and some aspects of congressional oversight processes, but there is little or no transparency regarding specific actions taken to ensure accountability in individual cases. The U.S. military is, and has been for some time, transparent about its investigative processes and protocols. However, very little information is available for the CIA. While executive branch oversight mechanisms exist, it has been difficult to evaluate the role they play in overseeing U.S. drone and other strikes due to the lack of clear information. Since 2012, congressional oversight mechanisms have become more transparent, when information was revealed about some aspects of how they carry out oversight of U.S. strikes, but without more detailed information about recommendations made and actions taken by the executive branch, it is difficult to assess how meaningful this oversight is.
There is no clear and accessible mechanism for those injured and the families of those killed in strikes in Pakistan, Somalia, and Yemen to bring forward allegations or to claim and receive compensation or condolence payments. While, in general, the U.S. military releases results of court-martials, it does not release statistical disaggregated information regarding how many investigations were conducted, disciplinary action and prosecutions undertaken, and convictions. Likewise, the U.S. government has not disclosed statistical disaggregated information about the number of compensation or condolence payments made, amounts paid, and other details in Pakistan, Somalia, and Yemen. The U.S. government has also not provided information about individual compensation or condolence payments provided to those injured and families of people killed in specific cases. In U.S. courts, the government has also sought to prevent scrutiny of its strikes abroad by arguing for a broad application of the state secrets doctrine—a doctrine that the government can use to prevent the disclosure of evidence in a lawsuit for national security reasons. When the government’s arguments are accepted by the courts, it can prevent the case from being heard at all on its merits, as there is not enough information to proceed with the case.
Advancing Transparency and Accountability in the Use of Lethal Force
The U.S. government should urgently improve transparency regarding its use of force overseas. The excessive secrecy of the Bush and Obama administrations led to widespread criticism, undermined counterterrorism efforts, and increased the suffering caused to those injured and the families of those killed. The Obama administration appeared to learn from some of these mistakes and harms by instituting limited reforms on the use of lethal force abroad between 2010 and 2016. The U.S. government should resist any temptation to reinstate greater secrecy, and should instead continue to advance transparency and accountability. This report sets out specific recommended actions for the U.S. government to take to build on its recent reforms. It also provides detailed recommendations for other states as well as U.N. actors to take to support the advancement of transparency in the use of force. Key recommendations follow.
The U.S. government should:
- Promptly release the results of all government investigations into specific strikes, subject only to redactions where families or those injured have requested privacy or to ensure their physical safety, or only as strictly necessary for legitimate national security reasons.
- Provide detailed explanations for all past and future cases in which there are credible allegations of unlawful killings or civilian harm. In particular, provide urgent responses to ten serious cases that civil society groups have raised with the U.S. government.
- Record, acknowledge, and explain to families and the public every civilian death, providing the name of the person killed.
- Disclose the legal basis for individual strikes, including by releasing all Office of Legal Counsel and other agency legal memoranda that set forth the basis for the use of force against all persons targeted, whether U.S. citizen or non-citizen.
- Ensure that the Director of National Intelligence continues to release a set of casualty figures on an annual basis pursuant to Executive Order 13,732. The release should be expanded to include information about numbers of those killed and injured in each country, the year and location of strikes, the names and ages of those killed, and whether strikes were judged to be lawful or unlawful.
- Compile and publish an annual breakdown of investigations opened, disciplinary measures and prosecutions undertaken, convictions, and compensation, condolence payments, or other forms of redress made.
All other states should:
- Reinforce existing standards on transparency, accountability, and the rule of law in relation to the use of force by:
- recommending in the U.N. Human Rights Council Universal Periodic Review and other multilateral fora that states adopt improved transparency practices; and
- supporting and proactively engaging in international processes that aim to increase transparency and accountability with respect to both the proliferation and use of armed drones.