After Brennan Testimony, Implementing Curbs On Drone Targeting

National Security Adviser John Brennan’s appointment hearing for the position of Director of CIA brought out one of the more interesting policy discussions in recent years.  I’ll embed the hearing footage from C-Span below.  It’s a quick 3.5 hours broadcast and as always watching committee meetings on C-Span is slightly less tortuous than water boarding.  That being said, some ideas I’ve debated here at this blog did arise during the hearing to include Senator Dianne Feinstein’s suggestion of a FISA type court for oversight of drone targeting.

Of even more interest, Max Fisher at the Washington Post was kind enough to extend the drone accountability debate by referring to my points from earlier in the week and he added some analysis of his own.  Thanks to Max for the nod and I’ve clipped some of his well thought out comments below.  I’ll also add a little more detail with regards to my logic for these recommendations, most of which were initially published in this drone related article I published with Frank Cilluffo at HSPI last summer.  Here are Max’s notes and some additional comments.

Detention PolicyWe don’t have one, and not having a detention policy makes drone strikes more attractive.

The Obama administration tried and failed to fix this problem, in part by seeking to close the prison at Guantanamo Bay, Cuba, and potentially open a prison on U.S. soil where they might detain terrorism suspects. The administration also sought civilian trials for suspects such as Khalid Sheikh Mohammed. But Guantanamo is still open, and the United States has no attractive, consistently viable options for detaining terrorism suspects.

Max is exactly right.  Listening to Congress debate limiting drones or taking them off the table entirely is a bit ridiculous when they have done nothing to help create a workable detention policy.  As long as there is no detention policy, a “law enforcement only” approach can not even be implemented.  It’s on Congress to fix this.  The Executive has tried and gotten no where trying to build an alternative to drones.

FISA Type Court – Accounting for Drone Strikes

Established in the 1978, the 11-judge panel must approve surveillance warrants against suspected foreign spies. Its deliberations are secret but meant to establish accountability and to keep the executive branch in check.

As I’ve said before, the goal is not only to create more oversight and make targeting more accountable.  It’s also to make drone targeting more consistent in its application.  Here’s why:

  • Creates record of targeting justifications – I feel like there may be some sort of central accounting for targeting justifications but I’m not sure.  The FISA type court would keep a permanent, central public record for targeting justifications.  I’m guessing the records of targeting decisions over the past decade probably reside in different places strewn about the DoD and the intelligence community.
  • Creates targeting consistency across organizations and over time – While I’m fairly confident the drone targeting process incorporates certain standards, I suspect these standards vary between battlefields and vary amongst organizations evaluating targets.  With regards to current FISA applications, all law enforcement agencies present their evidence to one legal body, this body then creates one standard for receiving a warrant.  Additionally, a FISA type court has multiple members (groups usually make better decisions) and membership rotates incrementally allowing for consistency in standards over time.  One of my concerns has been turnover during presidential election cycles.  Under the current system, every time the President switches there is likely to be a change in the standard.  These swings could be dramatic and would really undermine the application of one of the U.S.’s most effective counterterrorism tools.
  • Puts responsibility on targeting planners and a judicial committee and not solely on the President – The President’s decision to take responsibility for approving targets is noble but wrong in the long-run.  When things go wrong, everyone wants to point to the President, but we all know he is only making decisions based on the information and guidance from those below him.  In a FISA system, investigator’s must vouch for the information they provide as justification for a FISA warrant.  If an investigator’s  information turns out to be crap, the FISA judge, law enforcement administration and potentially the public will come down on that investigator like a ton of bricks.  Instituting a FISA type process will push accountability onto those in the targeting process who have their cross hairs on “suspected al Qaeda” guys.  (This has always been a big difference and sometimes a point of contention between CIA officers and FBI Agents. Agents must testify and are accountable for their evidence.  This curbs aggression as Agents might be called to public court for their accusations. This can frustrate CIA analysts and officers who think FBI Agents are being too cautious.  However, the CIA officer and analysts operate where estimates and intelligence often remain secret, anonymous and where the burden of proof tends to fall in more vague terms like “probably” or “likely”.  I’m not bashing one organization or the other.  Just pointing out that it’s different, and a FISA court could institute more accountability on covert actions from intelligence organizations and the military where calculations of less certainty are more acceptable.  We don’t want less certainty in drone targeting, we want more.)
  • Targeting planners and the court make tactical decisions, the President make strategic decisions – The President has bigger fish to fry.  He doesn’t need to be reviewing individual target packages.  He should instead be focusing on the proper application of an entire range of counterterrorism options to achieve the long-run goal of protecting Americans from terrorism while upholding our values and the rule of law.  Let planners who understand the terrorist organization and the application of force pick targets and let a judiciary body handle the legal basis for targeting.

Designation of targets as al Qaeda -

But how do you determine that? And who even counts as al-Qaeda, whose regional allies are variously described as branches, offshoots or affiliates?

America is hooked on al Qaeda.  And this addiction has led counterterrorism policies to focus narrowly on one terrorist organization when today there are actually many.  As I discussed this past summer, “What if there is no al Qaeda?“.  There are still likely to be terrorist organizations trying to target the U.S. Shouldn’t we be able to go after them as well?  The State Department has an important role designating Foreign Terrorists and Foreign Terrorist Organizations (FTOs).  Should we go after all FTOs with drones?  Like if they kill one of our Ambassadors?  I would recommend re-writing these policies and future drone policy such that it focuses on terrorist organizations rather than solely on al Qaeda.

Red Team Analysis of Drone Strikes – This is about evaluating the long-run effect of drones

The idea here would be to change the ways that U.S. counterterrorism officials make decisions about who and where to strike, not necessarily to limit their authority. It’s about reforming the system and encouraging it to make better choices, but it still accepts that system itself. I’m skeptical that this would solve any of the major problems with targeted killing, though it might abate them a bit.

I think this is important for understanding the longer run impacts of drone strikes.  Right now, I suspect drone targeting focuses on the implications of single attacks and does a cursory nod to “this might radicalize the population later.”  On the other end, drone critics keep pointing to drone strikes as radicalizing populations but they fail to evaluate drone strikes in comparison to other CT options (like sponsoring tribal militias) and use sad anecdotes rather than data to support their assertions.  A lessons learned body  focused on drone strikes could evaluate 1) under what conditions drone targeting can minimize civilian casualties, 2) what criteria for targeting result in the greatest detriment to terrorist groups, 3) the effects of population radicalization as a result of sustained drone strikes and 4) could place drone strike effectiveness and detractors in context with other CT options.  Essentially, the Red Team can also provide lessons learned that improve the effectiveness and reduce the negative externalities of the program, which might result in a curbing of the technique’s application over time.  Right now, I think the focus is mostly on targets and the near term.  The analytical team would be looking longer run at campaigns.  I think this might be happening a little in government, but not much.

Post Mortem Disclosure of Targeting Justifications – Preserving the tool for the future

This seems very unlikely to happen, given that the Obama administration would probably not want to draw attention to the frequency and location of its strikes. But perhaps Watts is onto something about bringing more transparency to the program.

I agree with Max.  I think this is more about desire than ability.  I think the disclosure would help Americans understand why the tool is being used.  And overseas, I think it can help locals understand what the U.S. is trying to do (it won’t always work – lots of conspiracies out there.)  In the absence of information and a justification, silence breeds contempt and critics begin making up their own theories.  The disclosure doesn’t have to be full, but the U.S. government would have helped itself out a lot had it released details of the Abdulmuttalab case immediately after the targeting of Awlaki.  Instead, silence and the delay in disclosure led to accusations of conspiracy and undermined the credibility of the government.

Let Local Populations Know There Are Drone Targets In Their Midst – I’m not saying cough up secrets

I’m a little skeptical that this would work and that it wouldn’t risk drawing even more unwanted attention to the program, but perhaps Watts is onto something with the idea that the United States could be more public about who it considers a viable target, and perhaps how it arrived at this conclusion. If U.S. counterterrorism forces are going to put foreign populations under their jurisdiction, as they’ve done in places such as Yemen, maybe there is a way to communicate that the United States at least differentiates between suspected terrorists and civilians.

Americans tend to assume that local populations in which al Qaeda members reside understand what al Qaeda members are up to.  This is not the case.  Ali Soufan describes in his book how it was a Yemeni al Qaeda member learning of the destruction on 9/11 that resulted in him turning on al Qaeda during interrogation and helping the U.S. gain valuable information.  Likewise, I’ve also seen the inverse.  Harun Fazul, a known terrorist that killed hundred of Kenyan civilians during the U.S. Embassy bombings in Nairobi and Dar es Salaam, lived openly in Kenya for years.  On Sibu island, Fazul married into local families, built a mosque and operated a business. The locals didn’t seem to realize that it was Fazul that killed many of their countrymen in 1998.  Could the U.S. maybe communicate that to local environments so locals understand why the U.S. is operating in their area?  Not all will believe it, but some will.

Additionally, I think the U.S. should look to bring back and further promote the “Rewards-for-Justice” program, especially in Africa, along with drone campaigns.  The program wasn’t that successful after 9/11 in Pakistan (Pashtunwali, tribal protection, etc.), but some of the new CT battefields are not like the Pakistan safe haven al Qaeda enjoyed.  An increase in programs like “Rewards-for-Justice” might ease the need for drone strikes, particularly in those places where resources often trump ideology – like Africa.

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