Targeted Killing

It's Time for a White Paper on Congressional Oversight of Targeted Killings

By Gregory McNeal
Friday, March 22, 2013, 12:19 AM

In my prior posts I discussed the process of targeted killing, and some of the accountability mechanisms embedded in the process.  This post, and my next and final post will address reform recommendations that may help make the targeted killing program more publicly accountable.

The recent news that the Obama administration is considering transferring responsibility for drone strikes from the CIA to DOD has some questioning whether the change will have much impact on the program.  Spencer Ackerman nicely sums things up when he writes:

The congressional reporting requirements for so-called Title 50 programs (stuff CIA does, to be reductive) are more specific than those for Title 10 (stuff the military does, to be reductive). But the armed services committees tend to have unquestioned and broader oversight functions than the intelligence committees enjoy, not to mention better relationships with the committees: Witness the recent anger in the Senate intelligence committee that the CIA lied to it about its torture programs. The military is more likely than the CIA to openly testify about future drone operations, allow knowledgeable congressional staff into closed-door operational briefings and allow members of Congress to take tours of drone airbases.  But that’s not to say that there will necessarily be more transparency of the military’s drone programs. Much depends on congressional prerogative, rather than institutional requirements.

Thus, the transfer of the targeted killing program from the CIA to DOD won't necessarily lead to more transparency about the conduct of the program itself.  But I'm not sure that's what's necessary.

Rather what's necessary is for Congress to specify how they are conducting their oversight, what criteria they are applying in their oversight role, and what red lines exist that would cause them to question the wisdom or legality of the program.  What we need are greater assurances that those responsible for holding the President accountable are in fact doing so.  Congress should release more details about their oversight activities in the form of a white paper --- and it should be a bipartisan and bicameral document signed by all of the members of the intelligence and armed services committees.

What are the essential components of an oversight white paper?

1)  A statement about why the committees believe the U.S. government's use of force is lawful.  If the U.S. government is employing armed force it's likely that it is only doing so pursuant to the AUMF, a covert action finding, or relying on the President's inherent powers under the Constitution.  Congress could clear up a substantial amount of ambiguity by specifying that in the conduct of its oversight it has reviewed past and ongoing targeted killing operations and is satisfied that in the conduct of its operations the U.S. government is acting consistent with those sources of law.  Moreover, Congress could also specify certain legal red lines that if crossed would cause members to cease believing the program was lawful.  For example, if members do not believe the President may engage in targeted killings acting only pursuant to his Article II powers, they could say so in this white paper, and also articulate what the consequences of crossing that red line might be.  To bolster their credibility, Congress could specifically articulate their powers and how they would exercise them if they believed the program was being conducted in an unlawful manner.  In this way, they might state: "The undersigned members affirm that if the President were to conduct operations not authorized by the AUMF or a covert action finding, we would consider that action to be unlawful and would publicly withdraw our support for the program, and terminate funding for it."  They might not have to state things as boldly as I have, but they should establish their red lines and credibly signal how they are checking Presidential action.

2)  A statement detailing the breadth and depth of Congressional oversight activities.  When Senator Feinstein released her statement regarding the nature and degree of Senate Intelligence Committee oversight of targeted killing operations it went a long way toward bolstering the argument that the program was being conducted in a responsible and lawful manner.  The oversight white paper should add more details about the oversight being conducted by the intelligence and armed services committees, explaining in as much detail as possible the formal and informal activities that have been conducted by the relevant committees.  How many briefings have members attended?  Have members reviewed targeting criteria?  Have members had an opportunity to question the robustness of the internal kill-list creation process and target vetting and validation processes? Have members been briefed on and had an opportunity to question how civilian casualties are counted and how battle damage assessments are conducted?  Have members been informed of the internal disciplinary procedures for the DoD and CIA in the event a strike goes awry, and have they been informed of whether any individuals have been disciplined for improper targeting?  Are the members satisfied that internal disciplinary procedures are adequate?  I have good reason to believe the answer to all of these questions is yes, but it would be helpful for a formal statement affirming that Congress has in fact asked these important questions.

3) Congressional assessment of the foreign relations implications of the program.  The Constitution divides some foreign policy powers between the President and Congress, and the oversight white paper should articulate whether members have assessed the diplomatic and foreign relations implications of the targeted killing program.  While the white paper would likely not be able to address sensitive diplomatic matters such as whether Pakistan has privately consented to the use of force in their territory, the white paper could set forth the red lines that would cause Congress to withdraw support for the program.  The white paper could specifically address whether the members have considered potential blow-back, whether the program has jeopardized alliances, whether it is creating more terrorists than it kills, etc.  In specifying each of these and other factors, Congress could note the types of developments, that if witnessed would cause them to withdraw support for the program.  For example, Congress could state in general terms "In the countries where strikes are conducted, we have not seen the types of formal objections to the activities that would normally be associated with a violation of a nation's sovereignty.  Specifically, no nation has formally asked that the issue of strikes in their territory be added to the Security Council's agenda for resolution.  No nation has shot down or threatened to shoot down our aircraft, severed diplomatic relations, expelled our personnel from their country, or refused foreign aid.  If we were to witness such actions it would cause us to question the wisdom and perhaps even the legality of the program." Or "We understand the U.S. government to be targeting members of al Qaeda and associated forces, if the government's targets were to expand to other targets such as associates of associates, or non associated targets such as so called 'ally/side payment targets' the undersigned members would withdraw support for the program."

These are just some of the criteria that Congress could address in a white paper on Congressional oversight.  I imagine readers and other Lawfare contributors might have further thoughts about what Congress should say about their oversight activities (recognizing that members are limited in some respects by secrecy).

Nevertheless, the simple point I'm advancing here is that with judicial review foreclosed, political accountability is the primary mechanism by which the President is to be held accountable. For the public to trust that checks and balances are functioning requires Congress to reveal more about the criteria and red lines they are applying in their oversight activities.  A white paper is the most effective way for them to meet this need.

My next and final post will address a handful of additional reform proposals that can enhance accountability for targeted killings.

(As in previous posts, I have omitted internal references, they can be found in the paper).

This post is Part 6 of a 7 Part series based on the article Kill-Lists and Accountability