Only a single formal check remains on U.S. killings worldwide.by Kelsey D. Atherton May 23rd · 9 min read
On March 10, a U.S. drone fired a missile, turning a passenger vehicle outside Janaale, Somalia, into a heap of burnt and broken metal with fresh corpses inside. Whether the people killed that day were “terrorists” or ordinary Somalis is actively disputed. It is also a reminder that the United States’ targeted killing program persists to this day, another legacy of the forever war that has now lasted for three presidential administrations and shows no signs of stopping in the next one. Under U.S. President Donald Trump, however, an already opaque and murderous set of rules has become even more widely applied, and ever less accountable.
The elastic nature of the September 2001 Authorization for Use of Military Force (AUMF) has stretched so far as to cover strikes in Yemen, Libya, and Somalia. The first modern drone attack, a Hellfire missile fired from a CIA-piloted Predator drone in October 2001, was covered by the AUMF, as was the airstrike in Janaale, conducted by U.S. Africa Command (Africom), itself born in the dying years of President George W. Bush ‘s administration as part of the “war on terror.”
In a press release also published March 10, Africom claimed that its attack in Jaanale killed five terrorists. Shortly after, images of the wrecked vehicle began to circulate online, some linked to al–Shabab, the terror group actively targeted by the strike, claiming that instead it had left only civilians dead. Subsequent investigations by journalists found relatives of the deceased, who attested to the innocence of their family members.
As of April 27, Africom records the incident as still open and under investigation. The investigations are a voluntary move towards transparency, though one that reflects the limitations of self-reported accountability. Of the 20 possible civilian casualty incidents investigated and closed by March 31, Africom found only one claim substantiated.
The Janaale airstrike is the drone war in microcosm. To the extent that there is transparency, it is voluntary, not mandated. Tracking civilian harm is done—at least at first—by people outside government. And, as with all news save the most dramatic or scandalous in the Trump administration, it is largely absent from public awareness, a boring holdover of past consensus politics that leaves a trail of corpses and mangled limbs behind it worldwide.
As of May 18, the Trump administration had launched 40 airstrikes in Somalia in 2020 alone. That figure is made all the more staggering by the fact that, from 2007 through 2016, the administrations of George W. Bush and Barack Obama conducted 41 airstrikes in Somalia total, according to reporting from Airwars.
The CIA was the first part of the national-security state to operate Predator drones. Purchased first as scouts under the administration of President Bill Clinton during the Balkan wars, unarmed Predators offered a new feature for intelligence analysts: persistent battlefield surveillance. The drones outlasted fragile flesh, able to fly for 24 hours with a change of their yawning remote piloting crews mid-flight, letting commanders see more of the battlefield, for longer, than ever before.
The Predator was originally limited to a spotting role for other weapons, its laser designator to paint targets for the cruise missiles and bombs launched by other vehicles. Putting the anti-tank Hellfire missile on Predators was designed as a way to cut out that intermediate process. All that was needed to find and kill a target was a single drone, for just $3 million apiece—by battlefield standards, a bargain.
Operating with Air Force pilots but a CIA mandate meant the drone war was already destined for obscurity. While the Pentagon would get and operate its own armed Predators (and, later, the Reapers that replaced them), those drones would primarily operate as in-theater battlefield support, offering scouting and firepower to soldiers or marines on patrol.
The specific targeting of individuals linked to terrorist groups would remain in CIA hands, and under CIA rules, until 2013, when Obama nominally moved most of the drone program under the auspices of the Pentagon. Yet this was an incomplete transfer, one that still left some strikes in CIA hands, and it was not paired with the requisite political choices that would diminish and constrain the scope of the forever war. Changing what set of internal rules govern what kind of strikes does very little without Congress actively providing oversight. And for that oversight to be a meaningful constraint, Congress has to be skeptical of the drone war itself, which is a political calculus, not a technical one.
Obama’s second turn towards drone war transparency would not come until July 2016. That month, the administration released Executive Order 13732. Titled “United States Policy on Pre- and Post-Strike Measures to Address Civilian Casualties in U.S. Operations Involving the Use of Force,” the order required the administration to investigate reports of civilian casualties killed by U.S. action, offer condolences and payment to the families of those killed, and publish an annual report on strikes and those killed or injured in those strikes. The executive order also required that independent reporting, as well as government information, be factored into the internal reviews over whether or not a strike had, in fact, killed or harmed civilians.
As with many policies enacted by executive order under the Obama administration, the rule held the weight of law for only so long as an administration decided it wanted to follow it. Without passing the accountability into law through the legislative branch, the order did nothing to meaningfully constrain the actions of the next president.
Soon after the presidential election in November 2016, a version of the Pentagon’s internal manual for determining the legality of targets leaked online. Possibly written to explain the U.S. process to close military allies, the unclassified but “for official use only” document outlines how the joint chiefs of staff see their actions, and their process, falling within the bounds of the laws of war. While not an official transparency measure, the release of the manual provided a baseline understanding of how, at the end of its second term, the Obama administration saw its own actions as within the constraints of the law.
But there was never a consistent trajectory toward more transparency in the drone program. By keeping internal policies within the executive branch and releasing them to the public either at will or under the pressure of Freedom of Information Act requests, the administration had broad freedom to shape perception of its use of airstrikes abroad.
For the Obama administration, that meant putting out messages about the difficult choices present in a long-running war against an expansive threat. It meant, in particular, following transparency announcements with airstrikes, and then explanations of how those airstrikes fell within the existing purview of the war the administration inherited.
In 2013, just six days after Obama unveiled new rules on drone strike authorities, White House spokesman Jay Carney quoted Obama’s remarks to explain how, exactly, a strike on militants in Pakistan fell into that new policy.
In late 2016, when the Obama administration pursued drone transparency, it was voluntary self-reporting. While it acknowledged reports of deaths and injuries from strikes beyond military intelligence itself, the administration held them only as one factor among many to take into consideration when clarifying what, exactly, happened in a given airstrike.
As part of the presidential transition in December 2016, the Obama White House also released a lengthy memo about its understanding of the laws of war and how they applied to everything from the fighting in Afghanistan to the extensive targeted killing campaigns covered by the 2001 AUMF. It outlines the tools and rules of Obama’s opt-in transparency regime, itself just six months old at that point. But the failure to produce actual legal restraints, rather than a code of good conduct, would give the Trump administration free rein.
As a candidate, Trump campaigned on a promise that the United States would not shy away from killing civilians in its wars abroad. In 2015, when asked what he would do if elected to defeat the Islamic State, then-candidate Trump said “you have to take out their families,” and he further promised that his administration would no longer be fighting what he perceived as Obama’s “politically correct war.”
While not all campaign-trail utterances end up as formalized policy, by 2017, the Trump administration was already working on rolling back its predecessor’s rules about airstrike transparency. Obama’s 2013 Presidential Policy Guidance (PPG) designated looser targeting restrictions for battlefields and tighter ones for nonbattlefields. The intent was to allow Pentagon drones more freedom providing support fire for soldiers in firefights in places such as Afghanistan, while holding tighter restrictions for targeted killing flights in places where the United States did not actively deploy troops on the ground, such as Yemen or Somalia.
While keeping within the letter of the rule, the Trump administration simply expanded battlefield designation to areas of Yemen and Somalia, rendering the whole of the distinction all but meaningless.
“Another change is the at least tacit effort to absolve the Trump presidency of the responsibility that comes with using lethal force in the name of national security,” wrote Rachel Stohl, vice president of the Stimson Center, to Foreign Policy. “Part of reported changes to PPG were to reduce the White House’s involvement in strike decisions, a marked change from the Obama administration.”
A report by the Stimson Center in February found that, in addition to changing how it used battlefield designations, the Trump administration rolled back a host of Obama-era drone policies. That meant relaxed restrictions on exports of drones and laser designators, relaxed oversight on military drones sold abroad, greater authority for both military commanders and the CIA in choosing to attack targets, and removing the reporting requirement for casualties outside of designated battlefields.
Further, wrote Stohl and Shannon Dick, “Each of these changes occurred under a veil of secrecy, as the administration has not publicly released the policies, principles and procedures guiding the U.S. drone program.”
The rollback of transparency measures itself was opaque and barely covered, a pattern that would continue in the way the Trump administration handled the killings.
A single formal check remains on the secrecy surrounding drone killings. While Congress has long handed broad discretion on war power authorities to the executive, the 2018 National Defense Authorization Act (NDAA) for the first time mandated that the Pentagon submit annual reports on confirmed or suspected civilian casualties caused by U.S. military operations.
Signed into law in December 2017, the requirement mandated that the Pentagon report, by May 1 the next year. It marked a tentative step towards drone transparency, but the first execution in May 2018 had major limitations.
The public 2017 civilian casualties report aggregated deaths and injuries across all areas where the United States was actively fighting, instead of parsing it out by month, country, location, age, or sex. A classified annex delivered to Congress offered that information in disaggregated form, but reporting in such a way introduces a layer of opacity between the report and the public.
Congress strengthened the reporting requirements in the 2019 NDAA, and as a result the report features some disaggregated data. Yet there is still room for obscurity. The 2018 civilian casualties report estimates civilian injuries and deaths from U.S. strikes at one-tenth the level of independent assessments. The 2018 report also treated all strikes as occurring within the designated battlefields, seeing no need to parse the difference between strikes in and out of combat zones.
With the release this month of the Pentagon’s report on civilian casualties in 2019, the modest level of transparency promised in the 2016 executive order is still a very long way off. And the discrepancies with outside reporting persist, to a sometimes extreme degree. The Pentagon’s estimate for how many civilians it killed in Syria, for example, diverges from independent assessments by between a factor of 20 and a factor of 50.
The targeted killing program has been folded into the status quo of U.S. foreign policy. It is routine, normalized tragedy: the intelligence apparatus of a superpower thousands of miles away deciding precisely whose bodies are shattered on the ground.
Congressional moves on transparency have created a starting point for accountability. Yet with the targeted killing program, and the wars abroad generally, enjoying bipartisan support across administrations, the most demanded so far is that the administration be slightly more public about what it is doing, so long as it doesn’t threaten national security.
The assassination of Iranian military commander Qassem Suleimani in Iraq by a U.S. airstrike brought a momentary disruption in the order of secrecy. From across the then-vibrant Democratic primary, candidates condemned the act primarily as destabilizing, as did military strategists. Laws and conduct of targeted killing aside, what stood out was the possibility that the existing infrastructure of airstrikes had bent toward an agent of a nation with the capacity to strike back.
When polled afterward, Americans’ support for drone strikes against terrorists increased, although more Americans than not were convinced that the specific strike against Suleimani made the United States less safe.
Drone warfare thrives in the abstract: missiles crashing into bodies rendered unrecognizable and unknowable, into faceless targets with no identity more specific than “enemy.” So long as the White House, any White House, can sustain the public’s mental distance from the tangible, human consequences of the drone war, an unaccountable machinery will continue to wage war in relative obscurity.