A Counterterrorism Perspective on the Targeted Killing 'White 'Paper'

In 2013, the now-defunct think tank National Security Network commissioned me to write an analysis of the OLC White Paper the Obama White House had published to justify its use of drones to lethally target suspected terrorists abroad.

IN FEBRUARY 2013, a Department of Justice White Paper was leaked, making publicly available for the first time a summary of two legal memos setting out the legal details of the administration’s justification for targeted killing of American citizens.

The paper’s scope is explicitly limited to decisions targeting U.S. citizens who meet three criteria:

1. An informed, high-level official of the U.S. government has determined that the targeted individual poses an imminent threat of violent attack against the United States;
2. Capture is infeasible, and the United States continues to monitor whether capture becomes feasible; and
3. The operation would be conducted in a manner consistent with applicable law of war principles.

Despite these limitations on scope, the White Paper implicitly raises broader questions about the structure, policies, legal framework and ultimate effectiveness of the targeted killing program as a whole. These questions are often discussed in the context of legality and constitutionality, this paper looks at them from the point of view of counterterrorism effectiveness.

If the targeted killing program is structured so that it is not as effective as it should be, and its legal foundation is presented in such a way that political opposition becomes overwhelming, then supporters of remote warfare and targeted killing should be at least as concerned as opponents with the issues analyzed in this policy brief.

Below are five key concerns raised by this Office of Legal Counsel (OLC) White Paper, and how those questions will affect the long-term outlook and viability of the targeted killing program. It is important to note that they demand response from both the executive and legislative branches. The effectiveness, legal and ethical challenges are complex, and a successful response will be as well.

• Public ability to assess the program is essential to the effectiveness of a broader counterterrorism strategy.
• Counterterrorism professionals need the ability to capture, detain, interrogate and try as well as target and kill.
• Public confidence about accountability is also a key component of long-term support for drone programs.
• Counterterrorism professionals need clarity about legal authorities and their own responsibilities, duties, limits and protections.
• Broad legitimacy of the program will also require greater clarity about the authority under which strikes are conducted and where the United States is “at war.”

Public Assessment of Effectiveness Is Key for… Effectiveness

An underlying assumption of the White Paper is that some aspects of the terrorist threat can only be managed by targeted strikes. The White Paper explicitly invokes as a justification for the program “the extraordinary seriousness of the threat posed by senior operational al Qa’ida members and the loss of life that would result were there operations successful” (p. 1).

But the U.S. counterterrorism community internally, and its observers externally, in the U.S. and overseas, need to be able to gauge the effectiveness of targeted strikes: internally, to best allocate increasingly scarce resources; domestically, to assure American citizens that their government is using the best data-driven policies available to protect them; and globally, to protect the foundational legitimacy of U.S. security policy, and make a convincing argument to global publics that they benefit as well.

In the narrowest sense, the effectiveness of drone strikes is obvious: the individual successfully targeted will not plan any more attacks.

But from a broad perspective, the publicly available data from which drone strikes’ effectiveness can be judged is extremely poor. Neither the White Paper, nor other administration responses to queries about the results of strikes and how they are measured, suggests that data available to planners and lawyers inside government is much better.

The difficulty of verifying or disputing data about any given strike; the lack of clear standards and agreement in or outside government on what constitutes effectiveness; and the focus of public discussion on civilian casualty rates, which while a critical legal and moral issue may not correlate directly with effectiveness, all have limited analysts’ ability to draw scholarly conclusions about the value of drone strikes. Three databases are usually referenced in drone studies: the New America Foundation (NAF)¹ and the Bureau of Investigative Journalism (TBIJ)² are cited the most often, and the Long War Journal (LWJ)³ is cited less frequently. All three have serious flaws. The NAF and TBIJ databases rely on media reports to plot the frequency and location of drone strikes. The statistics they report are not directly collected at the scene, nor are their data verifiable, despite claims to the contrary:⁴ there are no public records to crosscheck any drone strike or the resulting fatalities.

Researchers have suggested measuring the effectiveness of drone strikes indirectly, either by tallying the numbers of attempted and successful terror attacks over time or by looking at the reported size and strength of the extremist group targeted.

In a working paper, RAND political scientist Patrick B. Johnston and UCLA postdoctoral fellow Anoop K. Sarbahi analyze a large dataset from drone strikes in Pakistan.⁵ They correlate reported acts of militancy with reported drone strikes using standard statistical methodology. The researchers find that an increase in the number of drone strikes strongly correlates with a decrease in the frequency and lethality of terrorist attacks, specifically those conducted by means of improvised explosive devices (IEDs) or suicide. The analysis and results are controlled for “local effects and pre-existing trends in militant attacks.” The scholars conclude that drone strikes are strongly associated with decreases in militant violence.

It would appear that drone strikes have worked to lower the threat from some Pakistani terror groups, in the limited context of the legally and politically separate Federally Administered Tribal Areas of Pakistan, the only area where drones fire their weapons.

At the same time, across Pakistan drone strikes have been effectively leveraged by elites to generate deep anti-Americanism. Pakistanis develop profoundly negative opinions of the strikes the more their media and political elites criticize them.⁶ Such opposition is, in part, due to how little information about success with drone strikes is relayed to the Pakistani public. Initial survey work among Pakistani youth suggests that highlighting successful strikes against known terrorists generates support for drone strikes.

Indeed, the attitude Pakistanis tend to have toward drone strikes is somewhat fluid and dependent on how strikes are presented.⁷ Estimates of civilian deaths vary wildly. One Pakistani researcher in 2009 estimated that over 98% of deaths from drones strikes in Pakistan were civilians.⁸ Meanwhile the U.S. government’s reported policy of counting all military-age males as combatants results in extremely low civilian casualty claims from Washington.

Brookings’ Madiha Nfzal argues that these large discrepancies fuel anti-Americanism among the educated, elite middle-class Pakistanis who “the U.S. counts on to serve as a counterweight to the radical segments of Pakistani society.”⁹ They also, of course, make up the ruling class whose acquiescence makes the drone strikes possible –– suggesting that greater transparency and documentation will be essential not just to public support for the program, but to the very continuation of the program.

This dichotomy –– the mostly-unknown successes of the program and well-known elite counter-messaging –– suggests that keeping data about drones in Pakistan secret is actually making the program unsustainable in the long run.

The White Paper was drafted to address not Pakistan but Yemen, specifically to address targeting Anwar al Awlaki, a U.S. citizen who joined al Qaeda in the Arabian Peninsula (AQAP). In Yemen, analysts have even less data to work with than in Pakistan. One indirect way to measure effectiveness is to look at the reported size of AQAP over time.

At the end of 2009 Yemeni officials estimated that there were 300 or so AQAP fighters in Yemen.¹⁰ By early 2012, U.S. officials, including John Brennan, estimated AQAP had grown to nearly 1,000 members.¹¹ Since that estimation, the Yemeni government undertook a massive “clearing” operation through the southern towns AQAP had occupied, leaving the terrorist movement scattered throughout the barren countryside.¹² Drone strikes have killed an unknown number of AQAP operatives, including three named as “operators” by Brennan: Ammar al-Wa’ili, Abu Ali al-Harithi, and Ali Saleh Farhan.¹³

Since then, no U.S. official has publicly estimated AQAP’s size or strength. Critics of the drone strikes still appeal to the largest number to suggest the drone campaign has been ineffective.¹⁴ Here again, the lack of information available to US or global publics threatens to undermine the key argument the White Paper uses to justify targeted strikes: not only is the threat grave, but it requires immediate violent action. This is perhaps even more crucial outside the U.S. than at home; populations living under the threat of strikes must believe that the U.S. operations are working to secure them from threats, in order to isolate al Qaeda and its affiliates from the very population they rely on for support. As the U.S. Counterterrorism Strategy states:

We will put forward a positive vision of engagement with foreign publics and support for universal rights that demonstrates that the United States aims to build while al- Qa‘ida would only destroy.¹⁵

Kill or Capture? Clarify Options Available to Counter-Terrorism Professionals

The White Paper says that targeted strikes are an option when capture is “infeasible.”

…[C]apture would not be feasible if it could not be physically effectuated during the relevant window of opportunity or if the relevant country were to decline to consent to a capture operation. Other factors such as undue risk to U.S. personnel conducting a potential capture operation also could be relevant. Feasibility would be a highly fact- specific and potentially time- sensitive inquiry [pg. 8].

Because of the particular constitutional concerns surrounding the targeting of American citizens, the White Paper contextualizes this difficulty-of-capture argument into a broader discussion of the imminency of threats. The White Paper explicitly states that “An ‘imminent’ threat of violent attack against the United States does not require … clear evidence that a specific attack on U.S. persons and interests will take place in the immediate future.”

Such a broad definition of immediacy expands considerably the number of instances where capture will be “infeasible.” It is also not a new concept within U.S. law. Senior government officials have made similar arguments with regard to terrorist threats going back at least to 1984 remarks by then-Secretary of State George Schultz and a 1989 speech by then-State Department Legal Adviser Abraham Sofaer.¹⁶

Regardless, it is clear the incentives of the war on terrorism favor killing over capturing. Neither the governments of Pakistan nor Yemen have granted the U.S. permission to carry out unilateral capture missions, nor has either government demonstrated great interest in capturing the individuals currently targeted by drone strikes. Breaking such an impasse might be impossible; the diplomacy involved would be intricate, extremely time consuming, and likely to fail.¹⁷

The White Paper notes that “undue risk to U.S. personnel” also limits the feasibility of capturing terrorist suspects. Mary Beth Leonard, the U.S. ambassador to Mali, suspended manned surveillance flights over Mali in 2012 over fears that the flight crews could be endangered should they crash and be captured by militants.¹⁸ The size and likely casualties, military and civilian, of forces which could carry out capture missions are all significant issues.

But part of the kill-vs-capture problem begins at home. When U.S. sailors captured Ahmed Abdulkadir Warsame, a Somali militant, in international waters, members of Congress objected to his being transferred to a civilian court in the U.S. for trial.¹⁹

Terrorism experts and practitioners have spoken explicitly about how this Congressional backlash, and subsequent legislative initiatives making it difficult or impossible to hold suspects on US soil, try them in US courts, and release them if that is deemed in US interests, creates an additional, powerful incentive not to capture suspected terrorists.²⁰

The implications for the practice of counterterrorism of this discussion are enormous. Counter-terrorism (CT) professionals will often face the choice of invoking “imminence” as defined in the White Paper, or risk seeing a suspect disappear. Their ability to bring in and question top operatives privately is very limited; and their ability to use one of the U.S.’s greatest perceived assets, the professionalism, incorruptibility and effectiveness of its court system, is now non-existent. Finally, whatever the various intentions of Congressional and Executive Branch decision-makers, the risk of the world — and especially target publics in affected societies –– perceiving that the U.S. government would rather kill terror suspects that prove their guilt is significant.

Paradoxically, by granting the targeted killing program greater freedom to operate, this set of norms risks covering up other inflexibilities that will fatally undermine U.S. ability to uproot whole networks as well as destroying individual cells or operatives.

How Accountability Can Lead to Sustainability

The White Paper argues that the review of “an informed, high -level official of the U.S. government” (pg. 1) is sufficient to determine a U.S. citizen can be targeted for killing. Yet this assertion raises a series of questions about executive power and accountability. The Senate Select Committee for Intelligence and the House Permanent Select Committee for Intelligence both review the strikes to some degree in monthly meetings. But elected representatives publicly voice their frustration in getting much information about the program from the White House. At the recent SSCI hearing on John Brennan’s nomination to be Director of the Central Intelligence Agency, Senators raised many questions about how the targeted killing program can be made accountable. Chairman Senator Dianne Feinstein complained that her staffs were excluded from reading additional memos explaining how the program works. ²¹

The White Paper explicitly applies only to the case of a U.S. citizen being targeted, and explicitly says that it does not treat larger questions about accountability. Yet these questions may be critical to support for and sustainability of the program, abroad and at home.

The White House has enjoyed strong public support for its targeted killing program. Drone strikes, even against American citizens, have been popular for years, though that support began to drop in 2012.²² A new poll at the end of 2012 suggested a sharp drop in support for drone strikes against U.S. citizens, along with further declining support for drone strikes overall.²³ This same period of time saw an unprecedented amount of information about the program leaked and reported to the public, which suggests that the more the public hears about the program the less it likes drone strikes.

Three central issues underlie the discussion of accountability –– both from the point of view of public legitimacy and for the counterterrorism professionals who carry out the policy to know that they are acting legally.

• What is the appropriate legal authority for strikes? The different organizations that operate drones operate under different sections of U.S. law. The Central Intelligence Agency operates under one section of national security law (Title 50)²⁴ while the Joint Special Operations Command operates under another (Title 10).²⁵ When both agencies are involved, operations are sometimes called Title 60 operations. Despite confusion about both sections of law, they are mutually reinforcing when undertaking classified operations.²⁶ Moreover, both sections of the law require different methods of legal oversight and congressional or public accountability for strikes. The administration should be more upfront about how it is applying the law and when different authorities apply.

• What is the appropriate level of secrecy? While all drone strikes outside of traditional warzones like Afghanistan, Iraq and Libya are classified to various degrees, they are protected from public disclosure in different ways. The CIA tends to engage in what are known covert strikes,²⁷ meaning that the CIA’s involvement is supposed to be a secret (also called “deniable” strikes). The military, through JSOC, tends to engage in clandestine strikes, meaning that the strikes themselves are supposed to be hidden from the public (also called “hidden”). The reality is that neither type of classification is feasible or even believable: the strikes themselves are not hidden in any real way, and the official denials²⁸ that they occur beggar belief. Declassifying the program is unlikely, but the way secrecy is handled needs to adapt to the public’s current level of understanding.

• How can innocents be shielded from abuse of the system? The White Paper reveals that the decision to place individuals on a targeting list, and then to strike against that individual, are handled entirely within the executive branch. Specifically, it says that a “well-informed, senior official” can make the determination to strike on his or her own. The White Paper raises serious questions about how people who might be misidentified as being targetable can either seek redress or removal from the list. In addition, should noncombatants be killed in a strike –– and some number have — the victims have no way to seek compensation, redress, or justice from the targeters or officials who approved the strike.

Accountability poses additional operational challenges: will strikes be reviewed beforehand, or after? How does one avoid needlessly second-guessing strike decisions while maintaining appropriate oversight? If the drones program becomes seen by other countries as basically illegal, then the U.S. will lose a critical freedom of operation if it needs to target terrorists in a region as airspace and access to ground lines of communication get restricted by host governments.

Ambiguity and its Effects on Counterterrorism Professionals

The White Paper does not clarify, and in some ways further confuses, questions that have arisen about the legal status of drone strikes, and the operators, pilots and planners who conduct and approve them. Quite apart from questions of legality, which are not treated here, this ambiguity could potentially have chilling effect on future operations.

For example, there is debate over whether drone operators are legal or illegal combatants that can affect their legal standing outside of the U.S.²⁹ Illegal or unlawful combatants engage in armed conflict outside the laws of war.

The White Paper argues that strikes only happen within the bounds of the laws of war. The UN, however, has disputed that assertion repeatedly for several years.³⁰ In 2012, the UN special rapporteur on counterterrorism and human rights, Ben Emmerson, launched an investigation into certain targeted strikes to gauge whether they really do conform to the laws of armed conflict.³¹

If drone operators (or even U.S. officials) are found to be unlawful combatants, they might be subject to arrest and trial by other countries should they leave the U.S. When an Italian court tried several CIA agents in absentia for their involvement in a rendition case, those agents were not only convicted for their involvement, they also now cannot travel to Europe without risking arrest.³² A similar finding for drone operators might also leave them essentially trapped within the U.S., unable to leave for fear of being arrested to serve prison time for illegal combat activity.

Also at issue, again, is whether the operators are military or civilian: they operate under different sections of law. The civilians running the CIA’s drone program might be illegal combatants (though the question has never been subjected to judicial review). Air Force JAG officers have suggested that military drone operators are legal combatants and thus can be retaliated against by other legal combatants (like the uniformed military of an adversary).³³

Left operating in an ambiguous legal context, personnel participating in targeted strikes may face additional stresses from reduced morale and fear of travel; over time this could also result in extreme risk-aversion in counterterrorism bureaucracies, which would severely limit effectiveness.

The Problem of the Authorization for Use of Military Force

The White Paper identifies its strike authority as emanating from three sources: the original Authorization for the Use of Military Force (AUMF),³⁴ passed after the September 11th 2001 attacks; the President’s duty to defend the nation under Article II of the Constitution; and the right to self-defense contained in international humanitarian law.

It is unclear to legal scholars and Congress, much less the general public, how these three different authorizes relate to and affect each other.

As a consequence the program seems to exist a vague status of multiple overlapping authorities. For example, it is unclear if the White House views its authority to launch strikes as existing separately from the AUMF. Senator Ron Wyden has been asking the White House for at least a year to clarify whether authority comes from Article II or the AUMF, and has not received an answer.³⁵ These overlapping authorities make it more difficult to resolve the effectiveness concerns outlined above, and create additional bureaucratic uncertainty.

Congress, too, has a role to play in settling these authority questions. The AUMF Congress passed calls for the president to use “all necessary and appropriate means” to prevent such attacks from happening again. Congress did not limit the authorization by time or geography, leaving it open-ended and applicable globally. Such an unbounded declaration of conflict largely excludes Congress from authorizing much oversight.

A full discussion of the legality of the AUMF is outside the scope of this paper, but there is a growing legal and political consensus that future counterterrorism operations will require additional legal authorization from Congress. The White Paper claims that, if strikes are not covered by the AUMF, they fall under the President’s Article II responsibilities to defend the country. Yet Jack Goldsmith, a Harvard Law Professor and former assistant attorney general under President Bush, has argued that the President’s Article II powers may not be sufficient on their own to justify attacking groups beyond the original al Qaeda.³⁶

This is a critical question of authority, especially if there is to be an effort to coalesce authority for the program into a single, clear, politically sustainable argument.

Neither the problem posed by terrorist groups, nor the technology that has enabled drone strikes, are going away. A program with such a global scope, and such political consequences abroad, cannot continue in secret if the United States hopes to maintain broad legitimacy for its actions.

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