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ACLU Lawsuit Seeks to Pry Open Secretive U.S. Drone Policy

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For opponents of drone strikes, the U.S. government’s April 23 disclosure of the grim news that a drone strike had inadvertently killed two al-Qaeda hostages — Warren Weinstein, an American, and Giovanni Lo Porto, an Italian, both humanitarian aid workers — felt like a shocking admission that might turn public opinion against the covert program. But an AP poll taken in the immediate aftermath of the disclosure revealed that just 13 percent of Americans oppose the use of drone strikes, including just 16 percent of registered Democrats.

If the deaths of Weinstein and Lo Porto failed to impact support for targeted killings, what else might? Drone strike skeptics hope that it could be a lawsuit filed by the ACLU in U.S. District Court for the Southern District of New York in March. The suit seeks to force the U.S. government to comply with Freedom of Information Act (FOIA) requests that would reveal the government’s criteria for placing militants on kill lists; divulge how the government determines whether civilians are likely to be harmed in strikes; disclose how it verifies whether civilians were in fact harmed by drone strikes; and detail basic data the Obama administration has withheld regarding the number and identity of persons killed or injured in drone strikes.

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Credit: U.S. Air Force Photo by Master Sgt. Rob Valenca
An MQ-1 Predator drone takes off from Creech Air Force Base in Nevada during the first operational test of the latest upgrade to the Predator in 2005. The Predator has become one of the primary unmanned aircraft used in U.S. drone strikes in Afghanistan, Pakistan and elsewhere.

Would the release of this information help the public make a more informed decision on whether to support drone strikes? Or might it simply expose intelligence sources and methods, provide a propaganda victory for jihadists or even remove a tool of warfare that many believe is less dangerous for civilians than other tactics, such as ground invasions?

In the last six years, Obama has ramped up the clandestine campaign to kill terrorists via remote control, expanding it to places like Yemen and Somalia and fighting detractors in court to keep the program shrouded in secrecy. The president has vowed that drone strikes are undertaken with the “near certainty” that they won’t cause civilian deaths, and supporters point out that hundreds of al-Qaeda fighters have been killed without endangering U.S. troops. But opponents say the government routinely low-balls civilian casualty counts and the strikes breed resentment and radicalization, creating more terrorists than they kill.

Using the average of three separate studies conducted by the New America Foundation, the Bureau of Investigative Journalism and the Long War Journal, since the first CIA drone strike in 2002, 522 strikes in Pakistan, Yemen and Somalia have killed 3,852 people, including 476 civilians. Strikes have declined substantially since peaking in 2010. Establishing a definitive count is nearly impossible given the government’s secretive policy, the difficulty of defining who is a civilian and the reality that few interested parties have the resources to conduct field research in the kind of dangerous, remote places where the CIA conducts most of its strikes.

The U.S. government has acknowledged that a total of eight Americans have been killed in drone strikes since 2002, when Kamal Derwish, a Buffalo, N.Y., native suspected of having ties to al-Qaeda, was inadvertently killed in a Predator drone strike.

Only one of the American citizens killed — Anwar al-Awlaki, a cleric killed in Yemen in 2011—was identified and deliberately targeted. The rest perished in strikes aimed at other targets, or in what the government calls “signature strikes,” which are attacks — like the one that killed Weinstein and Lo Porto — where American drone operators fire missiles at targets based on profiling the movements of military-age males observed in suspicious activities on the ground. U.S. officials say the intelligence is based on hundreds of hours of surveillance; critics call it educated guesswork, at best, as the botched strike on Weinstein and Lo Porto demonstrates.

Critics also say that these cloaked-in-secrecy signature strikes run a greater risk of harming civilians and drone strikes of any kind are remarkably unpopular outside the United States, Israel and a handful of other countries. A 2012 Pew Research poll of 19 countries found that respondents in every country save India disapproved of America conducting drone strikes to target extremists in Pakistan, Yemen and Somalia. In many countries — including Greece (90 percent), Egypt (89 percent), Jordan (85 percent), Turkey (81 percent), Brazil (76 percent) and Japan (75 percent) — a huge majority expressed disapproval.

Despite this unpopularity, governments are racing to acquire drone technology, raising fears that the United States won’t have the monopoly on long-distance killing for much longer.

In an interview with The Diplomat, Jameel Jaffer, the ACLU’s point person on drones, said that through its lawsuit, the group seeks to help Americans understand what people on the ground in countries like Pakistan and Yemen already know about drone strikes.

“Don’t [Americans] need to know what the threat is that’s posed, how certain are we that the threat is real, how imminent is it and how likely is it that civilians will be injured or die?” he said. “It’s clear that many Americans are generally supportive of the drone program. But to what extent is that a function of the way the government has controlled information? This last set of disclosures [regarding the deaths of Weinstein and Lo Porto] is remarkable for its rarity. The vast majority of drone strikes aren’t discussed. We don’t have the information we need in order to make a full assessment of the government’s practices.”

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Photo: U.S. Air Force
The first production version of the RQ-4 Block 20 Global Hawk unmanned aerial reconnaissance vehicle is unveiled in Palmdale, Calif.

Mary Ellen O’Connell, a law professor at the University of Notre Dame and an outspoken critic of the drone strike program, supports the lawsuit but says it shouldn’t be necessary.

“We already know we are violating the law, but this might just provide more of the gory details of how we are doing this,” she said in a telephone interview. “The lawsuit will show that plenty of civilians have been killed. It will further undermine our credibility. We’ll have more evidence that our government isn’t complying with international and constitutional law.”

Monica Hakimi, a law professor at the University of Michigan, contends that international law regarding drone strikes is open to debate.

“The use of the drone program is not in violation of international laws governing use of cross-border force when we have the consent of the government in whose territory we are acting or in some circumstances when we are acting in self-defense against non-state actors,” she said. “The debate revolves around what those circumstances may be.”

Hakimi said the lawsuit may succeed in shaking free some information about the drone strike program, but adds that because U.S. courts have been broadly sympathetic to the government’s argument that releasing too much information about the program will compromise intelligence-gathering techniques and sources, the ACLU is unlikely to get all the information it seeks. Previous ACLU lawsuits contesting the drone program have been dismissed on national security grounds. (In a separate lawsuit, however, the group recently won a federal appeals court verdict that deemed the National Security Agency’s bulk collection of U.S. phone records illegal, following Edward Snowden’s revelations about the NSA’s mass surveillance programs.)

Hakimi also pointed out that the government can’t release information about the “outer limits” of what it considers lawful on drones because it has purposely not defined what those outer limits are.

“They are preserving flexibility so they can interpret their authority as new cases and situations arrive,” she said. “They have a basic framework but justify individual cases based on the facts without necessarily defining the outer bounds of its legal authority.”

Tom Rogan is a writer who has penned articles for National Review and other publications in defense of drone strikes. He says that he opposes the ACLU lawsuit and broader disclosure efforts because they threaten national security.

“[Their] approach looks good on paper, [but] greater public disclosure runs far greater risk of disrupting CIA sources and methods,” he said in an e-mail interview. “The intelligence that drives drone strikes is highly sensitive and often involves the most important collection capabilities in the CIA — human sources on the ground, who would be tortured and murdered if identified. Also, publicity would be used by U.S. adversaries to sculpt adverse propaganda.”

Jaffer acknowledges that releasing more information about drone strikes could cast an unfavorable light on our policies that might allow our enemies to reinforce their propaganda, but says this is a risk worth taking.

“What’s the other option, to allow the government to suppress anything that would present its policies in a negative light?” he asked. “That can’t be the answer.”

Scott Shane, a national security reporter for the New York Times, made the moral case for the use of drones in a 2012 op-ed, arguing that they are the best way to neutralize terrorists plotting the murder of innocent civilians while avoiding the type of civilian casualties often associated with full-scale military interventions. Citing data provided by the Bureau of Investigative Journalism in London, he noted the drop in the civilian proportion of drone casualties, from 28 percent in 2008 to 16 percent in 2011 to just 2 percent in 2012, and called drone strikes “precision killing” that offered “perfect safety” for their operators.

Neither O’Connell nor Jaffer buy the argument that drone strikes are the most humane or effective way to fight the global war on terrorism. And Jaffer denies that the information the ACLU seeks would threaten intelligence-gathering sources and methods.

“The drone program is part of a complex of policies adopted after 9/11 which collectively have shown themselves to be ineffective at doing what they were supposed to do, which was to make us safer,” Jaffer argued. “Indefinite detention policies, Guantanamo, torture and the drone program — these programs have not just undermined our standing in the world and our moral credibility, but they’ve also generated thousands of new enemies.”

Jaffer said there are times when drones are not only lawful, but also the best strategy for combating legitimate terror threats. But he maintains that outside combat zones, the authority to use lethal force should be a last resort used only when a target presents an imminent threat. And he doesn’t accept the premise that if we weren’t using drone strikes, U.S. troops would be at greater risk in apprehending terrorists.

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Photo: U.S. Department of Defense
Lance Cpl. Derek A. Williams, left, and Lance Cpl. Philip Buttiens remove the engine of an RQ-2B Pioneer unmanned aerial vehicle in Iraq in 2006.

“It’s a false choice — it isn’t a choice between drones and invasion,” he said. “Sometimes it’s drones or diplomacy, or drones or law enforcement, or drones and calling on another government to arrest someone who can actually be arrested.

O’Connell echoed that point, citing the peaceful arrest last year of Ahmed Abu Khatallah, suspected of involvement in the deadly attack on the U.S. Consulate in Benghazi, Libya, in 2012.

“We arrested him without firing shots,” she said. “Why does he get a trial but others don’t?”

In the wake of the Weinstein and Lo Porto deaths, President Obama ordered an internal review of the CIA’s drone operations and promised to renew his efforts to shift control of the program from the CIA to the Department of Defense. But would such a move make a difference? Jaffer acknowledged that some believe the government could be more transparent if control of the program was moved to the Pentagon, but he said it wasn’t obvious to him that this would happen.

“We are less concerned with whose finger is on the trigger than on when the trigger is actually being pulled,” he said.

Rogan supports shifting control of the program to the Defense Department because he thinks it makes sense for the military to be in charge of military strikes, but he says that doesn’t diminish his concerns about the ACLU lawsuit’s potential for exposing intelligence-gathering tools.

Hakimi’s concern is that the suit carries some risk because if the courts rule against it, the verdict could turn aspects of our drone strike policy that are currently in a legal gray area to entrenched legal precedents that the government could use to justify elements of the program.

“There is a risk to pursuing legal remedies when you lack strong political support,” she said. “You could get what has happened with Guantanamo, where the courts have justified many of the detentions.”

The biggest unanswered question is what we might find out if the ACLU’s disclosure efforts bare fruit. O’Connell says we’d find out that what the government is telling us about the drone program isn’t what is actually happening on the ground. She thinks the disclosures could cause a shift in public opinion, with more Americans recognizing that our own actions have locked us in an endless, unwinnable cycle of violence.

Hakimi isn’t as distrustful of the government’s drone program, but still has reservations.

“My impression is that they are more trigger-happy than I would like based on intelligence that is sometimes questionable,” she said. “But the question I have is whether they are consistently pushing boundaries on this front and my sense is that they are not.”

Jaffer says the lawsuit may be able to bring the drone issue into the national conversation in a way that hasn’t happened before.

“Think about the police brutality controversy here in the United States,” he said. “That controversy is due in large part to videos where we see police being violent and you see the victims; you understand the humanity of the victims because you see them in the video. But we don’t have anything like that with the drone strike victims. The effects are almost entirely hidden from us.”


About the Author

Dave Seminara (@DaveSem) is a contributing writer for The Washington Diplomat.

Last Edited on June 5, 2015

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