Argument

The Less Things Change…

The Less Things Change…

Since one-year anniversaries are deemed appropriate occasions to revisit major policy initiatives, get ready for a glut of articles reviewing U.S. drone strike policies since President Barack Obama’s May 23, 2013, counterterrorism speech at the National Defense University (NDU). This speech was the culmination of a series of interagency reviews into controversial U.S. targeted killings policies, which the Obama administration decided to give because it was concerned that its ability to conduct drone strikes — like other controversial counterterrorism tactics — could become unduly constrained by domestic and international political pressure, or the denial of basing and overflight rights. The speech may have been criticized for being a whole lot of nothing, but the cynic could argue that it’s been effective. Indeed, there is little domestic or international pressure to change anything; the drone strike program continues apace and the United States is reportedly likely to retain access to Jalalabad Airfield in Afghanistan to continue drone strikes into northwest Pakistan.

Here are 10 things that show how little has changed over the past year regarding U.S. targeted killing policies.

1. The spin worked

The careful rollout of the speech, unclassified presidential policy guidance, accompanying comments by anonymous administration officials, and relatively compliant media reporting, collectively cemented the impression that U.S. drone strikes have been "reformed" and "reined-in." In reality, there are actually few new principles or standards than those that Obama administration officials had previously said. In fact, the most consequential impact of the NDU speech has been that whatever policy window existed for demonstrable reforms is now firmly shut. Based upon conversations with congressional members and staff, there is almost zero interest on Capitol Hill to revisit the policies, and there have been no public hearings since those held during the year that preceded Obama’s speech.

2. Drone strikes are down … a bit

The overall number of targeted killings generally remains in decline. In Yemen, there have been 28 airstrikes of various forms since Obama’s speech. As has been the case for the past five years, there remains confusion regarding who — Yemen, the United States, or Saudi Arabia — might be responsible for which airstrikes. Interestingly, for the first time in three years, the State Department’s annual human rights report released in February 2014 did not mention civilian casualties caused by Yemeni Air Force bombings.

In Somalia, there have been two drone strikes since Obama’s speech, the first to have been conducted by the United States since February 2012. There was also one special operations raid in October, which, according to New York Times, was aborted when "they encountered far more civilians than they had anticipated, including women and children, American officials briefed on the operation said."

In Pakistan, since the speech there have been 15 strikes, though they have been halted since December 2013, reportedly at the request of the government in Pakistan so that Islamabad could attempt to broker a peace agreement with the Pakistani Taliban.

3. ‘I refer you to my earlier obfuscations’

The speech provided government officials with a new reference point for another year’s worth of questions. Whenever asked about a counterterrorism strike by another country, they now refer to Obama’s comments. The White House spokesperson continues to provide a vague response when asked about the administration’s drone strike policies, as he did just six days after Obama’s speech: "There are standards that are in place that are public and available for every American to review." The State Department spokesperson also continues to offer the standard reply to drone strike questions: "I would refer you to the comments the President made about them in May." Similarly, Obama himself now does not discuss strikes at all, but rather invites journalists to review his own comments. During an August news conference, he stated: "In my speech in May, I was very specific about how we make these determinations about potential lethal strikes, so I would refer you to that speech."

Meanwhile, the Pentagon has taken to outsourcing the public relations for its counterterrorism operations in Yemen to the government in Sanaa. In February, Pentagon spokesperson Rear Adm. John Kirby was asked about military drone strikes that targeted a wedding convoy, allegedly killing and injuring civilians. Kirby answered: "I would also point you to comments made by the Yemeni government itself with respect to that operation … that there were some pretty bad folks that were killed in that operation." When asked again in April, Kirby stated: "The Yemeni government … did confirm some air strikes carried out over the weekend. I would refer you to the Yemeni government for details about that." So, the government of Yemen is now the Pentagon’s spokesperson when the U.S. military kills "some pretty bad folks" in Yemen. 

4. Uniform standards don’t appear one-size-fits-all

The administration still refuses to provide officials to testify before congressional committees about the overall nature of targeted killings. In February, Sen. Carl Levin (D-Mich.), chairman of the Senate Armed Services Committee, which oversees operations by Joint Special Operations Command (JSOC), the subunit of Special Operations Command responsible for conducting military targeted killings, held a closed joint hearing with the Senate Intelligence Committee, which oversees CIA operations. Levin wanted to explore what distinctions there are, if any, between the targeting policies of the CIA and the military. This is a crucial matter, since in May an administration official claimed, "the targeting parameters for all lethal actions are uniform," whether they are conducted by the CIA or JSOC. Last week, a congressional aide told the Los Angeles Times‘s Ken Dilanian that, actually, "Their standards of who is a combatant are different. Standards for collateral damage are different." However, at Levin’s hearing, the White House pro
hibited CIA officials from attending
, leaving only military commanders to provide testimony, and very few members of the Senate Intelligence Committee attended.

5. We’re still waiting on that CIA-to-Pentagon shift

No apparent progress has been made in transferring counterterrorism strikes from the CIA to the Pentagon. Recall that an anonymous senior official asserted that a classified version of the presidential policy guidance contained a "preference that the United States military have the lead for the use of force … beyond Afghanistan." Additionally, CIA Director John Brennan said during a February hearing that the Obama administration was continuing to explore shifting authority from the CIA to the Department of Defense Rep. Adam Schiff (D-Calif.) declared that getting the CIA out of lethal operations "is a goal broadly shared within the administration" but "proving difficult to accomplish."

In the past year, the chair of the Senate Intelligence Committee, which conducts oversight of covert activities, has reasserted that the CIA is more effective and precise. In January, a senior anonymous aide to Sen. Dianne Feinstein (D-Calif.) stated that the senator "stands by her earlier statements," that the CIA is better at exercising discretion in conducting drone strikes than the military, and that "Senator Feinstein believes her views are widely shared on the [Senate Intelligence] committee." Informed officials from JSOC, however, strongly disagree with this claim. Moreover, congressional members and staffers on the relevant Senate and House Armed Services Subcommittees, which conduct quarterly oversight hearings into JSOC operations, claim there is no conclusive evidence for Feinstein’s assertions. 

Consolidating lead executive authority within the Pentagon is an essential first step toward meaningful transparency into U.S. counterterrorism operations. But, according to the New York Times: "American officials have asserted behind the scenes that the new standards would not apply to the CIA drone program in Pakistan." Thus, for the 15 drone strikes that occurred in Pakistan after the speech, the touted reforms apparently did not matter. Obviously, it is impossible to know if or how they may also apply to CIA covert strikes in Yemen.

6. Drones are still the weapon of choice

There remains no demonstrative evidence whatsoever that the United States prefers capturing suspected terrorists over killing them. However, moving to the former has long been a stated objective of the White House; indeed, then-senior counterterrorism advisor John Brennan said as much in September 2011. Since then, however, the United States has conducted an estimated 187 drone strikes killing an estimated 925 people, 85 of whom were civilians. Meanwhile, over that same time period, there have been only three known capture events, including one in October 2013 in Libya, recorded by a security camera. To repeat, that’s 187 attempts to kill, and 3 to capture.

According to officials and planners I’ve spoken to from the military’s special mission units, the idea that these elite operators are incapable of capturing terrorists at an acceptable level of risk to themselves or civilians is insulting. If the White House was serious about its avowed preference for capturing over killing, it has the ability to demonstrate this at any time. As Sen. Susan Collins (R-Maine) said to Attorney General Eric Holder during a June hearing, "I haven’t seen a preference for capture." That is precisely correct, because that preference is wholly nonexistent.

7. Collateral damage mitigation is murky, at best

There is still no transparency into what procedures are in place to prevent harm to civilians from current targeted killings, or what investigative steps are undertaken when such harm is affected. In February, the White House concluded an investigation into a Dec. 12, 2013, drone strike in Yemen that reportedly killed 12 civilians at a wedding party, claiming that only al Qaeda members had been killed.

When Brennan was asked by Schiff if the Obama administration could publish an annual report quantifying how many combatants and noncombatants are killed by drones, he replied: "It’s certainly a worthwhile recommendation, if you would like to make that…. There is a lot of debate about, you know, what is the basis for those determinations and those numbers." Though legislative language requiring just such an annual report was proposed in this year’s Intelligence Authorization Act, Feinstein removed it from the Senate version last month, reportedly at the behest of the Director of National Intelligence James Clapper.

8. The forever war is still rolling along

No progress has been made toward reforming the Authorization for the Use of Military Force (AUMF), even though Obama endorsed "efforts to refine, and ultimately repeal" this mandate. Congressional members and staff have said they will not hold any AUMF hearings this legislative session because everyone is focused on the budget process and mid-term elections. Moreover, there remains a disconnect between Obama’s aspirations to repeal the AUMF and the expressed interest of senior officials to retain the authorities that it provides. In December, Caroline Krass stated in her nomination hearing to become the CIA’s lead lawyer: "I believe that the AUMF as it’s currently drafted is sufficient." In March, Michael Lumpkin, the assistant secretary of defense for special operations and low-intensity conflict, similarly told a House committee: "I truly believe that the AUMF has served us well. It continues to serve us well." As administration lawyers made clear in Wednesday’s Senate hearing, there are no current counterterrorism operations that President Obama could not authorize under his Article II powers if the AUMF disappeared today.

The Obama administration also still asked Michael Sheehan, then-assistant secretary of defense for special operations and low-intensity conflict, "Is there an existing list of groups affiliated with al Qaeda?" Though Sheehan responded by saying, "I’m not sure there is a list per se," the Pentagon provided that information to Levin after Obama’s speech, but refused to release the list because it would do "serious damage to national security." 

Obama had warned at NDU that "we must define the nature and scope of this struggle, or else it will define us." Since then, his administration has made no efforts to publicly define an enemy, or to refine the expansive AUMF authorities that allow him to target whomever appears on secret lists. Of course, many suspected terrorists still do not appear on any lists, since they are identified by patterns of observable behavior. "Officials said ‘signature strikes’ targeting groups of unidentified armed men will continue," the New York Times reported. So when Secretary of State John Kerry claimed that only "confirmed terrorist targets, at the highest levels, after a great deal of vetting" are killed by drones, apparently that remains untrue.

9. The U.N. sure isn’t getting any answers

The same questions that United Nations investigators had for non-battlefield targeted killings in November 2002 remain unanswered. In October 2013, the U.N. special rapporteur on extrajudicial, summary, or arbitrary executions, Christof Heyns, and the special rapporteur on counterterrorism and human rights, Ben Emmerson, released their latest reports on targeted killings and drone strikes. Emmerson wrote, "The United States has to date failed to reveal its own data on the level of civilian casualties inflicted through the use of remotely piloted aircraft in classified operations conducted in Pakistan and elsewhere, or any information on its methodology for evaluating this." He also noted that the involvement of the CIA in drone operations has created "an almost insurmountable obstacle to transparency." Thus, the same questions that successive U.N. investigators have asked of the United States since November 2002 remain unanswered.

10. Honestly, the administration would rather not talk about it at all

The Obama administration certainly still does not "welcome the debate" on targeted killings. In October, Amnesty International and Human Rights Watch released detailed reports calling for a review of U.S. drone strike policies and a disclosure of proof of civilian casualty counts. The White House reacted by saying it would review the reports "carefully," but when asked for clarification, it simply recited language from Obama’s speech. White House spokesman Jay Carney repeated Obama verbatim saying: "There is a wide gap between U.S. assessments of such casualties and nongovernmental reports." (The gap could be quickly narrowed if the administration released information about civilian casualties.) On Nov. 14, the State Department’s press secretary announced that it had concluded its review, which is best summarized by her opening sentence, "I don’t have much to read out for you." 

* * *

The positive news in all this, if there is any, is that — unlike in previous years — relevant administration officials and congressional committees do meet with the authors of these reports, but in listening mode only, unwilling to discuss or clarify anything, even behind closed doors. The public debate, if any, still requires parsing through misleading, confusing, and contradictory statements from anonymous officials from different branches of government.

And yet it’s increasingly hard to believe what the president says, and almost impossible to trust what he does. Obama professed in this year’s State of the Union address: "I’ve imposed prudent limits on the use of drones." He regularly reiterates that people should not take his word, that he will do what he says, whether it’s reforming NSA electronic surveillance or doing the dishes. If indeed he has imposed prudent limits, there is little observable evidence. The implications of this sustained opacity extend beyond the United States to how other countries may justify and employ armed drones. As James Clapper declared in February: "I would hope, as other countries acquire similar capabilities, that they follow the model that we have for the care and precision that we exercise." If those countries are interested in what that careful and precise model looks like, I know just the speech they can re-read.