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July 08, 2016

Obama’s Targeted Killing Program and the Need for Transparency

By Molly Wooldridge

Last Friday the Obama Administration released its estimate of how many people it has killed in airstrikes outside of Afghanistan, Iraq, and Syria since President Obama took office in 2009 through the end of 2015. This is the first time that the administration has released data on the number of civilians killed in airstrikes outside war zones—where airstrikes should rarely, if ever, be employed in the first place. Obama also issued an executive order memorializing internal procedures for limiting civilian casualties.

This is an important first step toward increased transparency of the U.S. drone program, which is essential for meaningful public debate about its lawfulness and effectiveness. However, both the casualty data and the accompanying executive order fail to provide enough information to allow the public to assess the harm to civilians, the legality of individual strikes, and the overall effectiveness of the targeted killing program.

The government estimates that between 64 and 116 civilians have been killed in U.S. airstrikes outside Afghanistan, Iraq, and Syria. This number is considerably lower than figures from independent organizations that have tracked civilian deaths. The real problem is that the data from the administration includes little more than the figure itself, and does not include details that explain this discrepancy.  

The administration acknowledges the mismatch, but says their numbers are more accurate because of access to “information that is generally unavailable to non-governmental organizations,” “multiple sources of intelligence,” and “deliberate spread of misinformation by some actors… on which some non-governmental estimates rely.” To enable the public to properly assess the government's data, the administration should include details such as strike locations and dates, and how the administration classified whether a person was a combatant or civilian.  

The executive order formalizes the procedures for limiting civilian casualties in U.S. operations involving force—both in armed conflict and in self-defense. These procedures include providing warnings to the civilian population prior to attacks—a requirement under international humanitarian law, also known as the law of armed conflict. The executive order also requires the U.S. government to acknowledge responsibility for civilian deaths and to provide condolence payments to those who are injured or to the families of those who are killed.

Unfortunately, the executive order includes a caveat that acknowledgement of harm and compensation shall be given “as appropriate and consistent with mission objectives and applicable law, including the law of armed conflict.” This language should not be used to avoid the executive order's requirements. 

The Obama Administration is also expected to release the 2013 Presidential Policy Guidance (PPG) on the use of force during counterterrorism operations outside areas of active hostilities. If released with minimal redactions, the PPG will hopefully allow Americans to better understand the targeted killing program, how targeting decisions are made, and the legal justifications for those decisions. Confidence in U.S. counterterrorism operations depends on full clarity about the governing policies.