Early this month, the Obama administration revealed its estimate of the number of civilians killed since 2009 in counterterrorism airstrikes outside of Iraq, Afghanistan and Syria. In a three-page report that offered little insight into the government’s secretive drone campaign, officials said they had concluded that between 64 and 116 civilians died in 473 strikes.
President Obama simultaneously issued an executive order that called on government agencies to adopt stricter guidelines and develop better technology to reduce the risk of killing innocent people in places where the United States is not a declared combatant. Those include Pakistan, Yemen, Somalia and Libya. Additionally, the order — which can be repealed or amended by Mr. Obama’s successor — calls for the annual release of civilian casualty numbers from drone strikes.
While the order is a step toward greater transparency, it is curious that Mr. Obama waited until near the end of his presidency to do this. At the same time, his administration continues to fight in court to prevent the disclosure of documents that would offer substantive information about the legal underpinnings of the program and the criteria the government uses to authorize strikes.
Judge Colleen McMahon of the Federal District Court in Manhattan is expected to release her ruling soon on a lawsuit filed last year by the American Civil Liberties Union to obtain records about the legal basis for the use of lethal force outside conventional war zones and the evidentiary standards the administration uses to vet targets. Though Judge McMahon is unlikely to release everything the A.C.L.U. is seeking, she should lean toward greater disclosure.
The director of the A.C.L.U.’s National Security Project, Hina Shamsi, said, “There is great damage to the rule of law and human rights law when the United States, of all countries, engages in killings based on secret interpretations of the law, or entirely new and unilateral legal frameworks outside the agreed-upon international framework that places important constraints on the use of lethal force and protects the right to life.”
The Obama administration in 2013 adopted stricter guidelines for the drone campaign, which is run by the Central Intelligence Agency and the Pentagon. They instruct intelligence and military personnel to determine with “near certainty” that their target is present at the location of an intended strike, that noncombatants will not be hurt or killed, that capture is not a feasible option and that the local government is not equipped to address the threat.
But it is impossible to assess whether these rules are being followed without more detailed information, including the identity of targets, dates, locations and assessments of collateral damage by strikes. This data could be released without compromising national security. This is also true of the secret legal memos that justify the drone campaign. Harold Koh, who served as the legal adviser at the State Department from 2009 to 2013, said the lack of transparency has unnecessarily damaged perceptions of the drone program.
Judge McMahon may soon force the government to disclose more about the program. But there’s nothing stopping the administration from doing so voluntarily.
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