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Five Ways to Reform the Targeted Killing Program

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Tuesday, April 23, 2013 at 3:07 AM

Can the targeted killing program be reformed?  That will be the topic of discussion today at 4pm EST, as the Senate Judiciary Committee’s Subcommittee on the Constitution, Civil Rights and Human Rights holds a hearing entitled “Drone Wars: The Constitutional and Counterterrorism Implications of Targeted Killing”  Regular Lawfare readers know that I’ve authored six prior posts on the process of targeted killing (starting here with a helpful table of contents at the bottom of each post), this post will be my final contribution as a guest blogger.

My focus in this final post will be on transparency related reforms that Congress and the administration can likely come to agreement on (thus no recommendation for judicial review).

Reform 1:  Defend the Process

At first blush this sounds like a silly reform recommendation, after all, the administration has given enough speeches on national security to fill a book.  But that doesn’t mean they’ve fully described or defended the targeted killing process.  In fact, in publishing these posts and the article I’ve been struck by how many people in government have emailed me to say things like: “I know my part of this, but I never knew the steps that came before and after me” or similar statements.  The fact that leading human rights groups —many of whom are ideologically inclined to support this administration— have written a 9 page letter mostly calling for greater transparency also suggests that the message has not been received about the strategy, tactics, criteria, or procedure associated with America’s use of targeted killings.  Sadly this isn’t a new phenomenon, in the article I cite a passage from Judge James E. Baker, Deputy Legal Adviser to the NSC under President Clinton, Baker wrote:

“In my experience, the United States does a better job at incorporating intelligence into its targeting decisions than it does in using intelligence to explain those decisions after the fact. This in part reflects the inherent difficulty in articulating a basis for targets derived from ongoing intelligence sources and methods. Moreover, it is hard to pause during ongoing operations to work through issues of disclosure…But articulation is an important part of the targeting process that must be incorporated into the decision cycle for that subset of targets raising the hardest issues…”

Of course it is understandable why an administration may not want to reveal information to defend the process, as doing so may subject them to political controls or even legal scrutiny, thus their caution is understandable (albeit self-serving).  Nevertheless, publicly defending the process can strengthen executive power.  It bolsters political support by providing information to voters and other external actors.  It also bolsters bureaucratic and professional accountability by demonstrating to those within government that they are involved in activities that their government is willing to publicly describe and defend (subject to the limits of necessary national security secrecy).  The administration should defend the process in at least as much detail as these blog posts have.

Reform 2: Use Performance Reporting to Encourage Good Behavior

Another transparency related reform that could engender greater accountability would be to report performance data. Specifically, the government could report the number of strikes the CIA and the Department of Defense conducted in a given time period. A possible performance metric might ask: 1) Was there collateral damage resulting from the military action? 2) If so, was the collateral damage excessive in relation to the military advantage anticipated? Variable 1 lends itself to tracking and reporting (subject to the difficulties of BDA), Variable 2 only arises if collateral damage occurred, and the questions that should flow from it are A) Was the collateral damage expected? If it was, then the commander must have engaged in some analysis as to whether the anticipated harm was excessive in relation to the military advantage anticipated and that assessment could be documented, and B) If the collateral damage was not expected, why not? Some causes of potentially unexpected collateral harm may be an intelligence failure, a failure to follow procedures, changes in the operational circumstances, inadequate procedures, among others. Each of these variables can be tracked as part of an accountability and performance metric.  If tracked and aggregated over time, the causes of errors or a record of success could be publicly communicated in a way that does not jeopardize operational security.  Moreover, such tracking and reporting could contribute to mission accomplishment by identifying the circumstances under which strikes did not go as planned.

As an example, in the paper I describe how CENTCOM data indicates that less than 1% of targeted killing operations resulted in harm to civilians, whereas outside observers estimate that 8%-47% of CIA strikes in Pakistan inflicted harm to civilians. Let’s make a big leap and just imagine for a moment that these data were official numbers, tracking the same thing, and were published by the Department of Defense and CIA respectively. In a hypothetical world where those numbers are accurate, it’s safe to assume that such reports showing that the CIA was inflicting civilian harm at a rate far exceeding that of DoD would force a serious reexamination of CIA bureaucratic practices, extensive political oversight, professional embarrassment and perhaps even the prospect of judicial intervention. The publication of such data may even have the salutary effect of causing bureaucratic competition between the Department of Defense and CIA over which agency could be better at protecting civilians, while still accomplishing their mission.   Of course there are costs associated with such reporting. The tracking requirements would be extensive and may impose an operational burden on attacking forces — however, an administrative burden is not a sufficient reason to not reform the process, especially when innocent lives are on the line. Another cost may be the cost to security of revealing information that even has the slightest possibility of aiding the enemy in developing countermeasures against American operations.

Reform 3: Publish Targeting Criteria

Related to defending the process is the possibility that the U.S. government could publish the targeting criteria it follows. That criteria need not be comprehensive, but it could be sufficiently detailed as to give outside observers an idea about who the individuals singled out for killing are and what they are alleged to have done to merit their killing. As Bobby has noted, “Congress could specify a statutory standard which the executive branch could then bring to bear in light of the latest intelligence, with frequent reporting to Congress as to the results of its determinations.”  What might the published standards entail? First, Congress could clarify the meaning of associated forces.  In the alternative, again as Bobby has noted, it could do away with the associated forces criteria altogether, and instead name each organization against which force is being authorized.  Such an approach would be similar to the one followed by the Office of Foreign Assets Control in their Specially Designated Nationals process.

The challenge with such a reporting and designation strategy is that it doesn’t fit neatly into the network based targeting strategy the U.S. government follows (as outlined in prior posts and in the article).  If the U.S. is seeking to disrupt networks, then how can there be reporting that explains the networked based targeting techniques without revealing all of the links and nodes that have been identified by analysts? Furthermore, for ally targets, the diplomatic secrecy challenges remain.  For example, at the time of the strike, the U.S. government could not disclose the fact that it was responsible for killing Nek Mohammed.  There simply may be no way the U.S. can publicly reveal that it is targeting networks or persons that are attacking allied governments. These problems are less apparent when identifying the broad networks the U.S. believes are directly attacking American interests, however publication of actual names of targets will be nearly impossible (at least ex ante) under the current network based targeting practices.

While publishing targeting criteria has its challenges it may still be worth it as it may clear up potential misconceptions grounded in the use of different definitions.  For example, the U.S. government and outside observers may simply be using different benchmarks to measure success. Some observers are looking to short term gains from a killing while others look to the long term consequences of the targeted killing policy. Some may be counting members of enemy groups as direct participants in hostilities, while others may be only counting those with a continuous combat function as direct participants.  These definitions matter and the U.S. should be more transparent about what definitions it feels bound by.

While definitions should be transparent, all of the metrics and criteria associated with how the U.S. measures short term and long term success need not be revealed.  However, the U.S. should articulate what strategic level goals it is hoping to achieve through its targeted killing program. Those goals certainly include disrupting specified networks.  But what other goals is America seeking to achieve?  Articulating those goals, and the specific networks the U.S. is targeting may place the U.S. on better diplomatic footing, and would certainly engender a sense that there is greater accountability domestically.  It won’t please all of the critics, but pleasing all of them shouldn’t be the goal, the goal should be to firmly ground the program by providing sufficient details to ensure that mistakes are being tracked and that agencies aren’t running amok.

Reform 4: Publish costs (in dollars)

Some Americans may not care about innocent children in far away lands, but they care about their taxes.  That fact suggests that targeted killings may be a worthwhile case for proving that publishing the financial costs of strikes can impose a degree of accountability on the process. This is the case because unlike a traditional war where the American people understand victories like the storming of the beaches at Normandy, the expulsion of Iraqi troops from Kuwait, or even (in a non-hot war context) the fall of the Berlin wall – this conflict against non-state actors is much harder to assess. As such, the American people may understand the targeted killing of a key al Qaeda leader like Anwar al Aulaqi, and they may be willing to pay any price to eliminate him. But what about less well known targets such as Taliban leaders? Take the example of Abdul Qayam, a Taliban commander in Afghanistan’s Zabul Province who was killed in an airstrike in October of 2011.  Do the American people even know who he is, let alone the money spent to kill him?  According to a report, the Navy spends $20,000 per hour on strikes like the one that killed Qayam, and each sortie generally lasts eight hours.  While the American people may be generally supportive of targeted killings, they are likely unaware of the financial costs associated with the killings. Publishing the aggregate cost of strikes, along with the number of strikes would not reveal any classified information, but would go a long way towards ensuring political accountability for the targeted killing program. Such an accountability reform might also appeal to individuals across the ideological spectrum, from progressives who are opposed to strikes on moral grounds to fiscal conservatives who may oppose the strikes on the basis of financial cost. In fact, according to the 9/11 Commission Report, during the 1990’s one of the most effective critiques of the cruise missile strikes against al Qaeda training camps was cost. Specifically, some officials questioned whether “hitting inexpensive and rudimentary training camps with costly missiles would not do much good and might even help al Qaeda if the strikes failed to kill Bin Ladin.”

Reform 5: Establish an Independent Review Board

The transparency related accountability reforms specified above have the ability to expose wrongdoing; however that’s not the only goal of accountability. Accountability is also designed to deter wrongdoing. By exposing governmental activity, transparency oriented reforms can influence the behavior of all future public officials—to convince them to live up to public expectations.  The challenge associated with the reforms articulated above is a bias towards the status quo.  Very few incentives exist for elected officials to exercise greater oversight over targeted killings and interest group advocacy is not as strong in matters of national security and foreign affairs as it is in domestic politics.  To overcome the bias towards the status quo, Congress should consider creating an independent review board composed of individuals selected by the minority and majority leadership of the House and Senate, thus ensuring bi-partisan representation. The individuals on the review board should be drawn from the ranks of former intelligence and military officers, lending their report enhanced credibility. These individuals should be responsible for publishing an annual report analyzing how well the government’s targeted killing program is performing. The goal would be a strategic assessment of costs and benefits, including the fiscal costs, potential blowback, collateral damage and other details that are currently held deep within the files of the targeting bureaucracy.

This board, like many prior commissions can be successful because they signal the executive’s interest in maintaining credibility and winning the support of the public.  It also shows his willingness to give up control of information that allows others to subject the executive branch to critiques. Similarly, Congress may prefer this solution because it allows them to claim they are holding the executive branch accountable while at the same time shifting the blame for poor accountability decisions to others. The board could review the program in its entirety, or could conduct audits on specified areas of the program.

The challenge associated with such an approach is similar to the oversight challenges we see today.  Will the agencies provide information to the board members?  Maybe not.  However, the dynamic here is a bit different, and it suggests that that agencies may cooperate. First, for the board to be successful it will require the president to publicly support it from the outset. A failure on his part to do so may impose political costs on him by suggesting he has something to hide. That cost may be more than he wants to bear.  Second, once the president publicly binds himself to the commission, he will need to ensure it is successful or he will again suffer political costs. Those costs may turn into an ongoing political drama, drawing attention away from his other public policy objectives. Third, the board members themselves, once appointed, may operate as independent investigators who will have an interest in ensuring that they are not stonewalled. Fourth, because these members will be appointed by partisan leaders in Congress, the individuals chosen are likely to have impressive credentials, lending them a platform for lodging their critiques.

Conclusion

In these blog posts and in the related article I’ve attempted to describe the opaque process associated with targeted killings and to explain some political and bureaucratic reforms that can make the process more accountable.  (As in previous posts, I have omitted internal references, they can be found in the article).  I want to thank the Lawfare team for allowing me to publish these excerpts.  Please feel free to follow me on Twitter @GregoryMcNeal or at my regular blogging home at Forbes where my writing is focused less on national security and more on law and public policy in general.

This post is Part 7 of a 7 Part series based on the article Kill-Lists and Accountability

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