April 12, 2013

The Honorable Barack Obama
President of the United States
White House
1600 Pennsylvania Ave., N.W.
Washington, D.C. 20500

Re: Shared Concerns Regarding U.S. Drone Strikes and Targeted Killings

Dear President Obama,

The undersigned human rights and civil rights groups write to convey a statement of shared concerns regarding U.S. targeted killing policy. Our statement, attached, urges the administration to take essential steps to: publicly disclose key targeted killing standards and criteria; ensure that U.S. lethal force operations abroad comply with international law; enable meaningful congressional oversight and judicial review; and ensure effective investigations, tracking and response to civilian harm.

Sincerely,

American Civil Liberties Union
Amnesty International
Center for Human Rights & Global Justice, NYU School of Law
Center for Civilians in Conflict
Center for Constitutional Rights
Global Justice Clinic, NYU School of Law
Human Rights First
Human Rights Institute, Columbia Law School
Human Rights Watch
Open Society Foundations

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STATEMENT OF SHARED CONCERNS REGARDING U.S. DRONE STRIKES AND TARGETED KILLINGS

The undersigned human rights and civil rights groups urge the United States to take essential steps to ensure meaningful transparency and legal compliance with regard to U.S. targeted killing policies and practices, particularly those outside the internationally-recognized armed conflict in Afghanistan. In particular, we call on the administration to: publicly disclose key targeted killing standards and criteria; ensure that U.S. lethal force operations abroad comply with international law; enable meaningful congressional oversight and judicial review; and ensure effective investigations, tracking and response to civilian harm.[1]

I. Disclose Legal Standards & Criteria

Commitment to the rule of law requires that the administration disclose the legal constraints on its lethal targeting operations. Greater disclosure of legal and policy standards, and procedural mechanisms, is a necessary prerequisite to informed assessment and debate by the U.S. public, policymakers charged with conducting oversight, and the international community.

President Obama acknowledged the need to lift the veil of secrecy on targeted killings in his most recent State of the Union address, during which he pledged to ensure that U.S. lethal targeting practices are made “more transparent to the American people and to the world.”[2] We urge the U.S. government to make good on the President’s stated commitment to greater transparency on this crucial issue. Refusal to clarify U.S. legal and policy standards will leave the administration vulnerable to challenges to the sincerity of its commitment to transparency and the rule of law.

We are confident it is possible to improve transparency without putting intelligence sources at risk or endangering genuine national security interests. In fact, improved transparency may serve national security by demonstrating the legal bases for targeted killing policies and practices.

In particular, we urge the administration to:

· Release to the public all Department of Justice, Central Intelligence Agency and Department of Defense memoranda that reflect the administration’s interpretation of operative law and policy concerning the lethal targeting of any person;

· Release to the public the counterterrorism manual reported to exist by the Washington Poston January 19, 2013 (with minimal redactions to protect legitimately secret information);[3] and

· Disclose the legal criteria for identification of targets, including for placement on so-called “kill lists” and for subsequent targeting, and criteria for so-called “personality strikes,” “signature strikes” or Terrorist Attack Disruption Strikes (TADS).

II. Ensure Effective Congressional Oversight

All relevant committees, including the Armed Services, Foreign Relations and Foreign Affairs, Intelligence and Judiciary Committees, should be able to engage in meaningful oversight, and the administration should work cooperatively with these committees. To that end, the administration should provide all members of Congress access to past and future legal opinions and interpretations regarding targeting operations by the CIA and Joint Special Operations Command (JSOC). Moreover, the administration should answer requests by members of Congress for basic information that is a precursor to effective oversight. This would include, for example, Senator Wyden’s request for the names of all of the countries where the intelligence community has “used its lethal authorities.”[4]

III. Do Not Block Judicial Review

Judicial review is a central pillar of checks and balances. It is essential for accountability and transparency. Yet, the administration’s position is that judicial review is “not appropriate”[5] in targeted killings cases and it has invoked broad interpretations of the political question and immunity doctrines, Bivens special factors, and the state secrets privilege to obstruct litigation.

We do not believe that accountability and transparency will be improved by recent proposals to establish a FISA-like court to sanction lethal targeting operations.[6] On the contrary, a special targeted killing court would give a veneer of judicial review to decisions to launch lethal strikes without offering a meaningful check on executive power. Instead, we urge the administration to cease making broad claims of non-justiciability or political question, to prevent cases alleging human rights or constitutional violations from being heard on their merits.

IV. Track & Respond to Civilian Harm

At his recent nomination hearing to be director of the CIA, John Brennan stated that the United States should publicly acknowledge mistaken killings of individuals or groups of individuals, in the interest of transparency.[7] He later said that the administration should “make public the overall numbers of civilian deaths resulting from U.S. strikes targeting al-Qa’ida.”[8] We agree and believe this disclosure is an essential first step toward ensuring accountability and redress.

At the same time, John Brennan and other senior administration officials have repeatedly said that civilian casualties from targeting operations outside of Afghanistan, and particularly from drone strikes, are “exceedingly rare.”[9] Senator Dianne Feinstein has said that civilian casualties are in the “single digits” each year.[10] We are concerned about the factual basis for these claims in light of prima facie evidence and numerous credible reports that civilian casualties have been significantly higher than “single digits” each year.[11] In the context of drone strikes, remote operation makes battle damage assessments and proper post-strike investigations difficult, and the administration has provided no evidence that it can properly assess how many civilians were harmed.

Based on a review of a wide range of civilian casualty estimates, we are especially concerned that the administration may be consistently undercounting and overlooking civilian casualties. Moreover, the administration may be employing an overbroad definition of “combatant” or “militant” that would lead it to undercount civilian casualties.[12] These concerns heighten the need to ensure there are effective mechanisms to track and respond to civilian harm. Moreover, in the context of armed conflict, a track record of undercounting civilian casualties may cause the United States to make an inaccurate assessment of the proportionality element of lethal action—itself a violation of the laws of war. (We describe the appropriate legal standards in and outside of armed conflict in Section V infra).

The reported practice of so-called signature strikes, based on observation of certain patterns of behavior and other “signatures,” adds to these concerns. Signature strikes do not appear to require specific knowledge about an individual’s participation in hostilities or an imminent threat.[13] Since their identity is unknown, even during the strike, these targeted individuals may be confused with civilians who cannot be targeted directly as a legal matter.

In an armed conflict, individuals are entitled to a presumption of civilian status, which the practice of signature strikes may effectively deny, leading to direct attacks on civilians and disproportionate civilian casualties, in violation of international humanitarian law. Outside of armed conflict, this concern would be heightened, since presupposing targetability would be even more incompatible with human rights standards. It would also increase the likelihood that the U.S. government systematically underestimates civilian casualties. A refusal to acknowledge civilian harm compounds anger in impacted communities, and denies victims the justice they deserve.

We therefore urge the administration to:

· Publicly describe the existing processes to prevent and mitigate civilian harm from targeting operations (including with drone technology), e.g., civilian protection protocols and training given to drone operators;

· Disclose the criteria used to determine civilian and “militant” or “combatant” status;

http://www.hrw.org/news/2013/04/12/joint-letter-president-obama-us-drone-strikes-and-targeted-killings