OUT OF THE SHADOWS

OUT OF THE SHADOWS

Recommendations to Advance Transparency in the Use of Lethal Force

“We want to know why our son got killed, and we demand justice”
— Yaslem Saeed bin Ishaq, father of 28-year-old Saleh Yaslem Saeed bin Ishaq, killed by a drone strike in Yemen, August, 2013

EXECUTIVE SUMMARY

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.

Key Findings

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.

 

Recommendations

To the Government of the United States

To the Executive

1. Improve transparency around legal and policy frameworks

1.1 Follow up the release of the 2016 Legal and Policy Frameworks document by issuing an updated, detailed, and reasoned analysis which adequately explains which legal and policy frameworks apply to all of its operations overseas. Explain why these frameworks apply, and provide detailed justifications for their application, including a clear and definitive statement setting out which standards apply as a matter of law, and which apply as a matter of policy.

1.2  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, subject only to redactions strictly necessary for legitimate national security reasons.

1.3  On a regular basis, publicly disclose where and when the Presidential Policy Guidance applies.

1.4  Notify the U.N. Security Council in each instance where the United States uses force in the exercise of self-defense.

1.5  Disclose all instances where consent was provided by another government to carry out a strike on its territory, including:

  • when consent was provided;
  • which department and/or official of that government provided consent; and
  • an explanation of the scope of consent provided, including whether it was limited temporally, geographically, or operationally.

1.6  Provide detailed definitions and explanations of how all key legal and policy terms and criteria are interpreted and applied, including:

  • “areas of active hostilities;”
  • “associated forces;”
  • “cannot or will not effectively address the threat to U.S. persons;”
  • “continuing, imminent threat;”
  • “extraordinary circumstances,” and “fleeting opportunity;”
  • “feasibility of capture;”
  • “high value terrorist;”
  • “individual targetable in the exercise of national self-defense;”
  • “near certainty” that non-combatants will not be killed or injured;
  • “near certainty” with respect to the presence of targets;
  • “non-combatant;”
  • the criteria used to determine that a foreign government is “unable or unwilling to address a threat posed by the non-state actor on its territory”; and
  • the circumstances and criteria for determining when a non-international armed conflict begins and ends.

1.7  Where any legitimate need for secrecy for national security reasons has passed, disclose more detailed targeting rules and rules of engagement.

2. Improve transparency in relation to lethal force practices

2.1 Provide detailed explanations for all past and future strikes in which there are credible allegations of unlawful killings or civilian harm. In particular, provide urgent responses to the ten serious cases that civil society groups have raised with the U.S. government.

2.2 Record, acknowledge, and explain to families and the public every civilian death, providing the name of the person killed.

2.3 Acknowledge all ongoing and future strikes, including by applying Executive Order 13,732 on United States Policy on Pre-and Post-Strike Measures to Address Civilian Casualties in U.S. Operations Involving the Use of Force.

2.4 To enable greater transparency, transfer authority for conducting lethal strikes from the CIA to the Department of Defense.

2.5 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 so that it is sufficiently detailed and disaggregated, and include:

  • government estimates of the numbers of those killed and injured in strikes, and the numbers of strikes assessed to be lawful or unlawful, broken down by month, year, country, age, and sex;
  • the name and age of each of those killed; and
  • the methodology used to gather, assess, and compile civilian casualty estimates.

3. Enhance transparency around decision-making processes

3.1 Disclose details of internal government processes to make strike decisions, including explanations for all exceptional procedures as envisaged in the 2013 Presidential Policy Guidance.

4. Ensure robust oversight and accountability mechanisms

In order to ensure external oversight and accountability of its lethal use of force operations:

4.1 Make public and accessible information about the activities and findings of internal executive branch reviews or oversight mechanisms in relation to the use of lethal force overseas (if any), subject only to redactions strictly necessary for legitimate national security reasons.

4.2 To the extent that the government takes any actions or makes modifications to lethal use of force policy or practices in response to oversight, disclose such information subject only to redactions strictly necessary for legitimate national security reasons.

4.3 Ensure that findings and lessons learned from post-strike investigations lead to measures that better avoid or mitigate civilian casualties. Publicly report progress on how lessons have been implemented and assessments of the efficacy of reforms made.

4.4 Compile and publish an annual breakdown of:

  • all investigations opened;
  • disciplinary measures and prosecutions taken; and
  • convictions against individuals responsible for violations of law or rules involving the use of force overseas.

4.5 Release statistical and aggregate information on the number of cases in which compensation or condolence payments were paid to those injured or families of people killed in strikes, together with the amounts paid. Publish case-specific information each time a payment is made specifying the amount and the reason, where the recipients of the payment agree to public disclosure and such disclosure is not assessed to be a security risk to the recipient or their families.

4.6 Disseminate, through appropriate media and other channels, concretely how those harmed by U.S. strikes or their representatives may make allegations and seek condolence or compensation payments. Publicized information should include: procedures, criteria, and timelines for government responses. Do not invoke the state secrets privilege to prevent post-strike judicial review, where to do so would effectively deny to alleged victims their right to a remedy, a right to which they are entitled under international law.

 

To the Department of Defense

5. Enhance disclosure of information on use of lethal force practices

5.1 Promptly and publicly acknowledge all strikes. For each strike, release:

  • the name of the agency responsible;
  • the date of the strike;
  • the country in which it occurred;
  • the numbers of those believed killed and injured, with their age, gender, and whether civilian;
  • in armed conflict situations, information on whether the person killed or injured was a civilian or combatant, and whether any civilian casualties were foreseen or were unanticipated;
  • outside of armed conflict situations, the numbers of people killed or injured, and whether they were assessed after the strike to be lawfully targeted or not;
    the legal basis for the strike; and
  • details regarding whether a post-strike investigation has been launched, including an expected timeframe for completion.

Such information should be provided in a uniform database, and in a manner that is accessible so that it is possible for the public, journalists, and NGOs to review and evaluate strikes.

6. Improve transparency about decision-making processes related to targeting

6.1 Publicly explain the decision-making processes followed by the Joint Special Operations Command in its targeting operations.

7. Ensure robust oversight and accountability

7.1 Disclose procedures and standards for assessing the reliability and accuracy of allegations of civilian harm made by alleged victims and witnesses, human rights organizations or other monitoring groups, the media, or others.

7.2 Promptly release the results of 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.

Release:

  • the steps that were taken to investigate the strike, including whether any of those directly impacted, witnesses, and/or families were interviewed;
  • the scope and purpose of the investigation and which agencies and particular teams were involved, including, for example, the resources and expertise devoted to investigations;
  • details of to whom the investigating team reported its findings;
  • the assessment and analysis of the lawfulness of the strike, including analysis of what precautions were taken before and during attack;
  • the assessment of the legality of the strikes and an explanation of whether and why civilians were killed or injured;
  • information on what lessons have been learned from the strike and whether and how practices and procedures can be improved in the future to reduce civilian casualties; and
  • where strikes are assessed to have resulted in civilian casualties, violated the law, or to have been in contravention of administrative rules, information on what procedures are being followed to investigate, discipline, and/or prosecute those responsible and/or provide compensation or condolence payments to those injured and the families of those killed.

7.3 Acknowledge and provide explanations where there are discrepancies between the U.S. government’s findings and those of the United Nations, human rights organizations, or journalists, including how the civil society reports were assessed in the course of U.S. investigations.

To the Central Intelligence Agency

8. Cease carrying out lethal strikes.

For all past strikes:

9. Disclose information about CIA application of legal and policy framework

9.1 Disclose which specific domestic and international legal and policy frameworks the CIA operated under when using lethal force overseas, in each country where the CIA carried out strikes.

10. Disclose information on use of lethal force practices

10.1 Publicly and officially acknowledge the CIA’s role in drone strikes in areas in which the agency has used lethal force.

10.2 Establish a process to declassify information about the CIA’s use of lethal force since September 11, 2001.

10.3 Without further delay, publicly acknowledge all strikes, releasing:

  • the name of the agency responsible;
  • the date of the strike;
  • the country in which it occurred;
  • preliminary figures of those believed killed and injured, with age, gender and whether civilian, where known;
  • in armed conflict situations, information on whether the person killed or injured was a civilian or combatant, and whether any civilian casualties were foreseen or were unanticipated;
  • outside of armed conflict situations, the numbers of people killed or injured, and whether they were assessed after the strike to be lawfully targeted or not;
  • the legal basis for the strike; and
  • details regarding whether a post-strike investigation has been launched, including an expected timeframe for completion.

Such information should be provided in a uniform database, and in a manner that is accessible so that it is possible for the public, journalists, and NGOs to review and evaluate strikes.

11. Disclose information about the CIA’s decision-making processes

11.1 Make public and accessible the CIA’s decision-making procedures for carrying out strikes.

12. Disclose information about the CIA’s accountability mechanisms

12.1 Make public and accessible the agency’s civilian protection mechanisms, including its civilian casualty mitigation processes and post-strike investigation procedures.

12.2 Disclose procedures and standards for assessing the reliability and accuracy of allegations of civilian harm made by alleged victims and witnesses, human rights organizations or other monitoring groups, the media, or others.

12.3 Without further delay release the results of investigations into specific strikes, subject only to redactions strictly necessary for legitimate national security reasons.

Release:

  • the steps that were taken to investigate the strike, including whether any of those directly impacted, witnesses, and/or families were interviewed;
  • the scope and purpose of the investigation and which agencies and particular teams were involved, including, for example, the resources and expertise devoted to investigations;
  • details of to whom the investigating team reported its findings;
  • the assessment and analysis of the lawfulness of the strike, including analysis of what precautions were taken before and during attack;
  • the assessment of the legality of the strikes and an explanation of whether and why civilians were killed or injured;
  • information on what lessons have been learned from the strike and whether and how practices and procedures can be improved in the future to reduce civilian casualties; and
  • where strikes are assessed to have resulted in civilian casualties, violated the law, or to have been in contravention of administrative rules, information on what procedures are being followed to investigate, discipline, and/or prosecute those responsible and/or provide compensation or condolence payments to those injured and the families of those killed.

12.4 Acknowledge and provide explanations where there are discrepancies between findings of the U.S. government’s investigations and those of the United Nations, human rights organizations and journalists, including how these findings were assessed in the course of U.S. investigations.

To the U.S. Congress  

13. Enhance transparency of oversight processes

13.1 Congressional committees involved in oversight of the use of force overseas should regularly disclose information about their procedures, activities, findings, and recommendations, subject only to redactions strictly necessary for legitimate national security reasons. They should release:

  • updated details on the procedures they follow to conduct oversight on the use of lethal force;
  • the types of information disclosed to the Congressional committees, and how they review it, including how regularly; and
  • information on actions taken and recommendations made by congressional committees to address issues and concerns that emerge through oversight.

13.2 Members of Congress should request the executive to report to them on:

  • detailed explanations for all past and future strikes in which there are credible allegations of unlawful killings or civilian harm;
  • the legal basis for strikes, including by disclosing legal memoranda for specific strikes;
  • how the government interprets and applies key legal and policy terms, as set out in the Annex to this report;
  • civilian casualties, including what lessons have been learned to mitigate and avoid civilian harm, and how these policies are being implemented;
  • individual investigations into specific strikes;
  • statistical and aggregate information on accountability, in particular how many investigations, prosecutions, and convictions there have been in relation to drone strikes and “targeted killings,” and the number of cases in which condolence payments or compensation has been paid, with amounts.

To the U.S. Judiciary

14. Ensure adequate post-strike judicial review of strikes and ensure the right to a remedy for victims of U.S. strikes

14.1 Conduct robust review of any government invocation of the state secrets privilege, and ensure that the application of that privilege does not result in the denial of a remedy for victims of U.S. strikes.

14.2 Ensure that the public interest in knowing about the policies, legal interpretations, and practices of the government in relation to its use of lethal force is given due consideration when weighing whether to order government disclosure of information.

To states in which the U.S. government carries out strikes

15.1 Publicly disclose whether consent has been given to the U.S. government to carry out operations in that country, and, if so, when it was given, by whom, and the scope of such consent (geographical, temporal, operational).

15.2 Disclose to the public, subject only to redactions strictly necessary for national security reasons, any agreements with the U.S. government regarding the use of force in their country.

15.3 Release government estimates for casualty figures on an annual basis, that include:

  • the numbers of those killed and injured in strikes, and the numbers of strikes assessed to be lawful or unlawful, broken down by month, year, country, age, and sex;
  • government estimates of the names and ages of those killed, where available; and
  • the methodology used to gather, assess, and compile civilian casualty estimates.

15.4  Publicly release the results of any investigations into U.S. strikes on their territory.

15.5 Ensure that domestic laws and international law are not violated through U.S. use of force in their country.

To all states

16.1 Publish the government’s views of the legal frameworks applicable to the use of force overseas, as well as any applicable policies.

16.2 Publicly disclose:

  • acknowledgement of all strikes, as well as civilian casualty data; and
  • decision-making and accountability processes.

16.3 Disclose to the public, subject only to redactions strictly necessary for legitimate national security reasons, any agreements with the U.S. government regarding the use of lethal force in other countries and the extent of assistance provided to these operations.

16.4 Ensure that any such agreements are not in violation of domestic laws and international law.

16.5 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.

16.6 If seeking to acquire armed drone technology, ensure that the “Ensuring Transparency in the Use of Force Benchmarks” set out in this report are met.

To the United Nations Special Rapporteurs on extrajudicial executions, countering terrorism, and truth

17.1 Monitor, evaluate and report on the transparency of the policies and practices of the U.S. government and other states on the use of force, and call on the U.S. government and other states to ensure greater transparency and accountability.

17.2 Request information from the U.S. government and other states on their policies and practices in relation to the use of force, including:

  • how they interpret and apply their legal and policy obligations;
  • government estimates of civilian casualties in strikes;
  • detailed explanations for all past and future strikes in which there are credible allegations of unlawful killings or civilian harm;
  • the results of investigations into strikes; and
  • details of measures taken to ensure accountability for wrongdoing.

17.3 Develop and provide guidance to states on how to meet their obligations to be transparent and accountable about the use of force.

 


Authors

The Columbia Law School Human Rights Clinic works to advance human rights around the world, working in partnership with civil society organizations and communities. The clinic carries out human rights investigations, legal and policy analysis, litigation, report-writing, and international advocacy. The clinic brings together innovative education, social justice, and scholarly research, and students are trained to be strategic human rights lawyers.

The Sana’a Center for Strategic Studies (SCSS) is an independent policy and research think-tank based in Sana’a, Yemen. SCSS work focuses on providing new approaches to understanding Yemen and the surrounding region, through balanced perspectives, in-depth studies, and expert analysis. Founded in 2014, SCSS conducts research and consultations in the fields of political, economic, civil, and social development, in addition to providing technical and analytical advice regarding key issues of local, regional, and international concern.

Acknowledgements

This report is the product of a collaboration between the Human Rights Clinic at Columbia Law School and the Sana’a Center for Strategic Studies.

The report’s lead authors were Alex Moorehead, Lecturer-in-Law and Director of the Counterterrorism, Armed Conflict, and Human Rights Project at Columbia Law School’s Human Rights Institute, Rahma Hussein, Legal Fellow, Columbia Law School Human Rights Institute, and Waleed Alhariri, Director of the U.S. Office, Sana’a Center for Strategic Studies.

Many students were contributing authors, or provided legal, policy, and factual research and writing.

Student contributing authors from the Columbia Law School Human Rights Clinic were Kate Berry, JD ’18, Suraj Girijishankar, LLM ’17,  Surya Gopalan, LLM ’15, Katie Minton, JD ’17, Modupe Odele, LLM ’16, Naomi Prodeau, JD ’17, Ria Singh Sawhney, LLM ’17, and Brian Yin, JD ’16.

In addition, students who provided research, writing, and editorial assistance were Audrey Chao, JD ’20, Bassam Khawaja, JD ’15,  Marie Michele Killmond, JD ’17, Balqees Mihirig, LLM ’16, Ana Pirnia, JD ’19, Sowjhanya Shankaran, LLM ’17, and Jeffrey Stein, JD ’19. The clinic’s work was supervised by Sarah Knuckey, Director of the Human Rights Clinic, Alex Moorehead, and Rahma Hussein. Sarah Knuckey also initiated the project, and provided research and analysis, and comments and review.

From the Sana’a Center for Strategic Studies, Farea Al-Muslimi, Chairman, Adam Baron, Director of Research and Analysis, Spencer Osberg, Chief Editor, and Ziad Al-Eryani, Washington D.C. Coordinator provided review, research, and analysis. Olivia Segal, Intern, provided editorial and research assistance.

We are grateful to Anna Diakun, Jessica Dorsey, Avner Gidron, Jonathan Horowitz, Brett Max Kaufman, Sahr Muhammedally, Wendy Patten, Laura Pitter, Christopher Rogers, and Hina Shamsi, and others for comments and feedback.

Daniel Greenfeld designed the cover of the report as well as the illustrations on the website.  Columbia University Print Services designed the layout.

This report does not represent the institutional views of Columbia Law School.

For more information visit: 

The Human Rights Clinic at Columbia Law School: web.law.columbia.edu/clinics/human-rights-clinic.
The Sana’a Center for Strategic Studies at:  http://sanaacenter.org/