Targeted Killing: Drones

Advocacy Group Proposes to Sue Drone Operators in the US

By Robert Chesney
Tuesday, May 10, 2011, 11:19 AM

This press release story in the Miami Herald announces that the British advocacy group, Reprieve, is in the midst of developing a litigation strategy designed to stop the United States from conducting drone strikes in Pakistan.  That in itself is not especially newsworthy, but there are a few details regarding Reprieve's likely strategy that are worth highlighting.

The story suggests that Reprieve is aware that civil suits and criminal complaints directed at the US government itself, or at senior officials, are unlikely to go anywhere in court, whether in the US or abroad.   But that's not necessarily fatal to the effort.  First, as Reprieve's director Clive Stafford-Smith explains, the ultimate goal of the litigation campaign is to impact public opinion

Stafford-Smith seemed to acknowledge that how any prospective lawsuit played in the media could be more important than a lawsuit in court. "The crucial court here is the court of public opinion," he said.

The litigation strategy, on this view, facilitates a larger PR strategy meant to delegitimize the drone strike program.  That may be a tall order with respect to the US public, but as other aspects of the story make clear it may be equally or more important to Reprieve to leverage European opinion and thus reduce the incentive of European governments to cooperate with the US, particularly in the form of intelligence sharing (the story expressly contemplates a suit against the UK government based on potential UK intelligence support resulting in a drone strike).

Second, the article identifies other potential U.S. defendants (aside from the government and senior officials) who may be relatively vulnerable to the chilling effect caused by the mere prospect of litigation:

Reprieve's legal director, Cori Crider, said the group might try to pursue individual drone operators in the United States ...

This is a disturbing suggestion, and it should be taken very seriously.  While Reprieve no doubt would face great hurdles in identifying such persons, in today's increasingly transparent world it might well be possible in at least a few instances.

So what if anything should the US government be doing in response?  For starters, it could think equally strategically about the importance of establishing strong public narratives regarding the legal legitimacy of its national security policies, including but not limited to drones in Pakistan.   To be sure, the government already does a great deal under the general heading of defending the legality of its policies.  Most notably, there is a massive body of briefs and oral arguments generated by years of habeas litigation.  And as John Bellinger notes, the US government for years has gone to great lengths to defend our legal positions with allies, often in the form of private meetings and conferences.  All of which is good and important.  But much of that work is either private (the meetings with allies) or relatively inaccessible to the public (the briefs and oral arguments).  To make a bigger dent in the "court of public opinion"--i.e., to build and sustain a public narrative of legitimacy--requires separate, more-publicly-available interventions such as Harold Koh's famous ASIL speech.  Such events should be far more common, lest the court of public opinion be ceded by default to Reprieve and other advocacy groups that can and will develop and execute sustained PR strategies focused on entrenching contrary legal perspectives.