President Barack Obama’s plan for closing Guantánamo, delivered to Congress on Tuesday, reaffirms his admirable desire to end before he leaves office one of the most problematic legacies of the US response to September 11. But he has yet to adequately address his own more lasting legacy in the “war on terror”: the secret killing of suspected terrorists with armed drones. On the same day the president issued his Guantánamo plan, a bipartisan task force gave him failing grades on his progress in bringing the drone program under the rule of law.
The Obama administration has made drones the weapon of choice for responding to perceived terrorist threats. According to the New America Foundation, George W. Bush oversaw forty-eight drone strikes in Pakistan; to date, Obama has already overseen 354, a 700 percent increase. Bush ordered one drone strike in Yemen; Obama has ordered 127. The precise numbers are disputed, but the New America Foundation reports that during Obama’s tenure, drone strikes have killed between 1,900 and 3,000 people in Pakistan, including over one hundred civilian victims. The practice peaked in Pakistan in 2010, and in Yemen in 2012, but continues to this day. The most recent reported strike in Yemen, for example, was on February 16, 2016, and killed three to six people.
Debates about the morality, efficacy, and legality of drones continue. On Sunday, former NSA and CIA director Michael V. Hayden published a breathless account of drone killings in The New York Times, defending both individually targeted strikes and signature strikes (in which unidentified individuals are targeted because they look like combatants) as an appropriate response to terrorists who hide among civilian populations. Meanwhile, in The Atlantic, Peter Beinart maintains that attacking ISIS fighters with drones and other aerial bombs, as the administration has been doing, will only increase the likelihood that Americans will become the targets of terrorist attacks.
The remains of a car containing three suspected al-Qaeda militants, after a drone strike, Yemen, January 26, 2015
The drone debate is hampered, however, by a central and deeply disturbing fact: the Obama administration has done virtually all of its drone killing in secret, and refuses to acknowledge its attacks, even when they are reported in the press. As a result, we have no official account of who was killed, where they were killed, why they were killed, or how many persons other than the intended targets were killed. Organizations like the New America Foundation, the Long War Journal, and the Bureau of Investigative Journalism do their best to keep an accurate count, but it is challenging to do so, and at most they are able to record the approximate numbers killed—not what the basis for the killing was.
In June 2014, the Stimson Center issued a report on drones by an impressive bipartisan task force. The task force was headed by Gen. John P. Abizaid, the former US Central Command (CENTCOM) commander, and Rosa Brooks, a Georgetown law professor and former Defense Department official. It included former senior government officials from the Central Intelligence Agency, Department of Defense, Department of State, and Department of Commerce, from three different administrations. The report did not condemn all use of drones, but was highly critical of the absence of transparency, accountability, and oversight with respect to their use away from traditional battlefields. It made a series of sound recommendations designed not to eliminate drone use but to bring the practice into the light of day and under the rule of law.
In the “report card” it issued this week, the Stimson Center task force graded the Obama administration on how well it has addressed those recommendations over the last year and a half. The results are not encouraging: three Fs, three Ds, and three Cs. Not a single A or B. The task force also had to give several Us, for “Unknown,” for example, on whether the administration has conducted a strategic review of the drone policy because the secrecy surrounding the program prevented the task force from determining even whether such a review has been undertaken.
The administration’s F grades all came on matters of transparency and accountability. The task force had recommended that the administration release information on the approximate number of strikes carried out by the military and the CIA; the general location and the numbers killed; the affiliations of those targeted and killed; and the numbers and identities of civilians killed. The administration has failed to provide such information for a single strike thus far. As the Stimson Center notes, since its 2014 report, “lethal UAV strikes have been reported in Yemen, Pakistan, Libya, Afghanistan and Somalia, and against the Islamic State in Iraq and Syria.” Yet the administration refuses even to acknowledge the vast majority of these strikes. Obama did apologize when a drone strike in early 2015 on the Afghanistan-Pakistan border accidentally killed two al-Qaeda hostages, the American Warren Weinstein and the Italian Giovanni Lo Porto. And the administration has admitted to killing several Americans. But it has plainly killed many other innocent civilians; what possible justification is there for apologizing only when we kill Western civilians? And why acknowledge only those strikes in which Americans are executed?
The task force also flunked the administration for failing to provide a “detailed report explaining [the] legal basis under domestic and international law of U.S. lethal drone program” or to develop “robust oversight and accountability mechanisms for targeted strikes outside of traditional battlefields.” Obama and some of his national security officials have offered general defenses of their policy in public speeches, and in the summer of 2014 a federal court compelled the administration to release a redacted legal memo justifying the killing of US citizen Anwar al-Awlaki in Yemen in October 2011. But we still know very little about the legal standards that govern most strikes, the process the government uses to ensure that particular strikes adhere to those standards, and what review, if any, is done after the fact to assess whether the strikes were justified and proportional, and whether innocent civilians were killed or injured. Absent such information, accountability remains illusory.
Perhaps the biggest question posed by drones is whether and to what extent they change the calculus of war, and whether new laws are needed to govern their deployment. The task force recommended in its initial report that that the administration “foster the development of appropriate international norms for the use of lethal force outside traditional battlefields.” The importance of the issue is underscored by the fact that, as the task force notes, “at least nine countries are believed to have armed drones—China, France, Iran, Israel, Nigeria, Pakistan, South Africa, the United Kingdom, and the United States.” And four countries have used them to kill—the US, UK, Pakistan, and Israel. The weapon will proliferate, and as it does so, the US record will provide a dangerous precedent for others.
The task force gave the administration a D on the subject of developing an international legal frame for the use of drones. The administration escaped a failing grade in this category only because in February 2015 it announced that it seeks to develop international standards for the export of drone technology. In other words, the US has made progress only when it comes to imposing standards on other countries, but no progress whatsoever with respect to publishing and enforcing standards governing its own use of drones. We are right to be worried about how others may use the technology we export; but we need to recognize that other countries are just as right to worry about how we use the technology ourselves. As long as the Obama administration insists on the power to engage in unacknowledged, unaccountable killing, we have no right to criticize others who do the same.
At this rate, Obama’s drone record may well be one of the most disappointing aspects of his administration’s legacy. But unlike with such matters as Guantánamo, where he faces significant political obstruction from Congress, he has the ability and the authority, on his own, to improve his record substantially before he leaves office. If he begins to take the Stimson Center recommendations seriously, he can still salvage his reputation—and more importantly, avoid creating a dangerous precedent for future leaders, here or abroad. If not, he will be remembered as the American president who asserted the power to kill suspects around the world by remote control, in secret.
David Cole is the Honorable George J. Mitchell Professor in Law and Public Policy at the Georgetown University Law Center. (January 2016)