Blog
Published on April 21, 2014
Several news outlets are reporting “massive” and ongoing joint U.S./Yemeni lethal operations against suspected Al Qaeda militants in Yemen. CNN is reporting that at least 65 suspected al Qaeda militants have been killed since Saturday, including at least 10 who were killed in a Saturday drone strike that reportedly also claimed the lives of three civilians.
There is little doubt that the drone strikes are being conducted by United States special forces and the CIA. Yemen does not have weaponized drones and the U.S. is the only country known to have conducted drone strikes in Yemen.
It’s important to note that targeted killing of enemy armed forces and of civilians participating in hostilities is legal in war. Use of lethal force in self-defense is also legal outside of war, when necessary to stop an imminent threat to American lives. This operation may very well fall within those boundaries, but it’s hard to tell thanks to the United States’ lack of transparency about its targeted killing policies. The current policy leaves the American people in the dark about who we are at war against and who is being killed in their name, whether in war or in self-defense.
With that in mind, and as details of this large-scale operation continue to slowly trickle out of Yemen, here are 10 questions (with appropriate follow-ups) that reporters should be asking as they investigate this joint operation:
1. In light of today’s decision by the Second Circuit Court of Appeals that the government has waived its claim to secrecy about drone strikes in Yemen, can and will the United States now admit that its drones were involved in these attacks?
2. Which U.S. agencies planned and executed the attacks? Do all such agencies use “law of war” criteria for choosing and attacking targets? Even outside of armed conflict situations?
3. Does the United States consider itself to be “at war” in Yemen and, if so, against whom? Is this war covered by the 2001 AUMF? Is the United States now a party to Yemen’s civil war?
4. If the United States is using law of war authority to conduct these attacks, what criteria are used to determine who is targetable? Does the United States take the position that in war, only members of enemy forces and civilians directly participating in hostilities may be targeted? How does the U.S. determine that someone is a member of “enemy forces” in a non-State group like AQAP?
5. If the United States is not using law of war authority, what criteria are used? Does the United States take the position that outside of armed conflict, it may only target persons when no other alternative exists to prevent an attack posing an imminent threat to Americans? How is “imminence” defined?
6. Just today, the Supreme Court declined to take a case in which Justice Breyer wrote, “The Court has not directly addressed whether the AUMF authorizes, and the Constitution permits, detention on the basis that an individual was part of al Qaeda, or part of the Taliban, but was not ‘engaged in an armed conflict against the United States’ in Afghanistan prior to his capture. Nor have we considered whether, assuming detention on these bases is permissible, either the AUMF or the Constitution limits the duration of detention.”
Are the individuals targeted in Yemen suspected of having engaged in hostilities against the United States or might they be targeted merely because they are considered “part of” Al Qaeda or “associated forces.” If that is the case, how are membership and “associated forces” defined?
7. Is the President’s claim that attacks will be undertaken only when they are virtually certain to avoid civilian casualties in effect in Yemen? What precautions are taken to avoid civilian casualties? What details will the government disclose about death or injury to non-targeted people and property? Is this aspect of the President’s Policy Guidance in effect in Yemen? If so, has it been violated?
8. Nabeel Khoury, the deputy chief of mission in Yemen from 2004 to 2007, said that “drone strikes take out a few bad guys to be sure, but they also kill a large number of innocent civilians. Given Yemen’s tribal structure, the U.S. generates roughly forty to sixty new enemies for every AQAP [al Qaeda in the Arabian Peninsula] operative killed by drones.”
The former CIA Pakistan station chief agrees. Speaking of the rapid expansion of the drone war in Yemen, Robert Grenier told the Guardian (U.K.), “We have gone a long way down the road of creating a situation where we are creating more enemies than we are removing from the battlefield. We are already there with regards to Pakistan and Afghanistan.”
Generals Petreus and McCrystal have expressed similar concerns. Drone attacks are not uniformly popular with those living under the drones, even those who oppose AQAP.
What assurances are there that we are not creating more blowback than success against terrorism?
9. Drone technology is spreading, not only to other States, some of which are hostile to the U.S., but also reportedly to non-State armed groups, possibly such as Hezbollah. What assurances are there that the United States is not establishing harmful precedents that both State and non-State armed groups can cite against their enemies, including Americans?
10. Some reports suggest that not all targets were threatening Americans, or part of forces at war with the U.S. A Reuters report, for example, suggests that targets included persons threatening Yemeni military and civilian institutions, not Americans. The President’s Policy Guidance (see question 7) states that “(l)ethal force will be used only to prevent or stop attacks against U.S. persons.” Is this aspect of the President’s Policy Guidance in effect in Yemen? If so, has it been violated?
While it’s important to withhold judgment about the U.S./Yemeni operation until more information is available, it’s hard to imagine making a fair assessment without the United States establishing more transparency about its drone program. Americans deserve answers to the questions above and the Obama Administration has a responsibility to answer them. Now we must wait to see which thoughtful reporter will ask them first.
