drones task force report

8/9/2019 Drones Task Force Report

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RECOMMENDATIONS AND REPORT OF

THE TASK FORCE ON US DRONE POLICY

JUNE 2014

TASK FORCE CO-CHAIRS

Gen. John P. Abizaid (US Army, Ret.)Rosa Brooks

PROJECT DIRECTOR

Rachel Stohl


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Recommendations and Report of the Task Force on US Drone Policy


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Tis report represents a preliminary effort to offer analysis and recommendations thatcould help shape and guide US UAV policy going orward. It looks at the militaryand national security benets o UAV technologies, analyzes our current approachesto UAV development and export, and seeks to contextualize the strategic questionsrelating to the use o lethal UAVs outside traditional battleelds. Ultimately, it offerseight detailed recommendations or overhauling UAV strategy; improving oversight,accountability and transparency; developing orward-looking international norms re-lating to the use o lethal orce in nontraditional settings; and devising sound UAVexport control and research and development policies.

UAV technologies are here to stay. Used oolishly, they can endanger our interests,diminish regional and global stability, and undermine our values. Used wisely, theycan help advance our national security interests even as we oster a more robust inter-national commitment to the rule o law.

We believe this report offers a use ul ramework or ensuring that we use these newtechnologies wisely, and we look orward to discussing our recommendations with theadministration and the public.

John Abizaid Rosa Brooks

June 2014


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TASK FORCE MEMBERSHIP

Te task orce III consists o 10 senior-level participants rom stakeholder constituenciesincluding the US military community, the intelligence community, the legal commu-nity, academia and the private sector.

Task force co-chairs:

• Gen. John Abizaid (US Army, retired), JPA Partners, LLC; ormer Commander, USCentral Command.

• Rosa Brooks, Pro essor o Law, Georgetown University; Senior Fellow, NewAmerica Foundation; Contributing Editor, Foreign Policy ; ormer Counselor to theUndersecretary o De ense or Policy.

Task force members:

• Lt. Gen. David Barno (US Army, retired), Center or a New American Security;ormer head o Combined Forces Command-A ghanistan;

• John B. Bellinger III , Arnold & Porter LLP; ormer Senior Associate Counsel to thePresident and Legal Adviser to the National Security Council and Legal Adviser orthe US Department o State;

• Lincoln P. Bloomeld Jr., Stimson Board Chairman; ormer Assistant Secretary oState or Political Military Affairs;

• Mary (Missy) Cummings, Associate Pro essor, Mechanical Engineering & MaterialsScience, Duke University; ormer US Navy pilot;

• Janine Davidson, Senior Fellow or De ense Policy, Council on Foreign Relations; or-mer Deputy Assistant Secretary o De ense or Plans; ormer Air Force pilot;

• Peter Lichtenbaum, Covington & Burling LLP; ormer Acting Under Secretary oCommerce or Industry and Security; ormer Assistant Secretary o Commerce orExport Administration;

• Philip Mudd, President, Director o Enterprise Risk, SouthernSun Asset Management;ormer Deputy Director o National Security, Federal Bureau o Investigation (FBI); or-mer Deputy Director, Central Intelligence Agency (CIA) Counterterrorism Center;

• Jeffrey Smith, Arnold & Porter LLP; ormer General Counsel o the CIA; ormerGeneral Counsel o the Senate Armed Services Committee; ormer Army Judge

Advocate General (JAG) officer.

III. Affiliations are listed or identication purposes only; this report represents the views o task orcemembers in their individual capacities.


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EXECUTIVE SUMMARY

INTRODUCTIONWith their long loiter time, sophisticated sensors and extensive operational reach, un-manned aerial vehicles (UAVs) are an attractive option or a wide range o militaryand intelligence tasks, including intelligence and reconnaissance, disaster relie andhumanitarian assistance, transportation, the provision o close air support to soldiers

in combat, and strikes against targets in relatively distant or inaccessible locations.While the overseas use o UAVs or intelligence, reconnaissance, transport and closeair support has been largely uncontroversial, the growing use o lethal UAVs or tar-geted counterterrorism strikes away rom so-called “hot battleelds” has generatedsubstantial attention and criticism.

US government officials argue that such strikes are both law ul and effective: asPresident Obama said in his May 2013 speech at the National De ense University,“Dozens o highly skilled al-Qaida commanders, trainers, bomb makers and oper-atives have been taken off the battleeld. Plots have been disrupted. … Simply put,

these strikes have saved lives. Moreover, America’s actions are legal. … [ ]his is a just war — a war waged proportionally, in last resort, and in sel -de ense."3

Nevertheless, many commentators question the strategic value o US UAV strikes orcounterterrorism purposes, arguing that the availability o lethal UAVs has ueleda “whack-a-mole” approach to counterterrorism, drawn attention rom non-kineticmeans o combating terrorist organizations, increased anti-American sentiment, erod-ed norms o sovereignty in ways ultimately likely to be detrimental to US interests, andcreated a slippery slope toward continual or widening conict and instability. Otherscharge that UAV strikes cause excessive civilian casualties, or worry about the ethical

and psychological impact o what they view as “remote-control killing.”Finally, many critics charge that the availability o lethal UAV technologies has tempt-ed the United States to engage in a largely covert campaign o targeted killing, creating,in effect, a “secret war” governed by secret law. In particular, controversy has swirledaround what critics view as the relative lack o transparency and accountability in UStargeted killings, and the potential implications this has or domestic and internation-al rule o law, especially i other states — including many not known or their humanrights records — mimic US precedents.


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TASK FORCE CONCLUSIONSTe Stimson ask Force on UAV Policy believes that UAVs should be neither glori-ed nor demonized. It is important to take a realistic view o UAVs, recognizing both

their continuities with more traditional military technologies and the new tacticsand policies they enable.

Most US military UAVs are not weaponized, and only a tiny raction o US govern-ment UAV missions involve targeted UAV strikes outside o traditional, territoriallydened battleelds such as those in A ghanistan, Iraq and Libya. Further, UAVs arenot a US “super-weapon:” while their use has led to signicant tactical successes, theyare not strategic weapons, and they currently have substantial vulnerabilities as wellas strengths. Te United States does not have a monopoly on UAV technologies or anability to predict all potential countermeasures; indeed, there is reason to ear the rapid

and uncontrolled proli eration o UAV technologies developed in other states, alongwith the rapid evolution o technologies designed to counter UAVs.

While we do not believe that UAV strikes cause disproportionate civilian casualties orturn killing into a “video-game,” we are concerned that the availability o lethal UAVtechnologies has enabled US policies that likely would not have been adopted in theabsence o UAVs. In particular, UAVs have enabled the United States to engage in thecross-border use o lethal orce against targeted individuals in an unprecedented andexpanding way, raising signicant strategic, legal and ethical questions.

Strategic Questions

We are concerned that the Obama administration’s heavy reliance on targeted killingsas a pillar o US counterterrorism strategy rests on questionable assumptions, and risksincreasing instability and escalating conicts. While tactical strikes may have helpedkeep the homeland ree o major terrorist attacks, existing evidence indicates that bothSunni and Shia Islamic extremist groups have grown in scope, lethality and inuence inthe broader area o operations in the Middle East, A rica and South Asia. Furthermore,US targeted strikes also create new strategic risks. Tese include possible erosion o sov-ereignty norms, blowback and risks o a slippery slope into continual conict.

Erosion of sovereignty norms: Te US government takes the view that it has a legalright to use orce in the territories o oreign sovereign states when those states are“unwilling or unable” to take what the United States considers appropriate action toeliminate what it sees as imminent threats. But inevitably, assessments o what consti-tutes an imminent threat to the United States and what would constitute appropriateaction are somewhat subjective in nature; the United States may view the use o orceas justied even when US allies and partners do not. Te US use o orce in sovereignnations whose consent is questionable or nonexistent may encourage other states toollow suit with their own military plat orms or commercial entities.

Blowback: Civilian casualties, even i relatively ew, can anger whole communities,increase anti-US sentiment and become a potent recruiting tool or terrorist organi-zations. Even strikes that kill only terrorist operatives can cause great resentment,


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Executive Summary

International Precedents: From the perspective o many around the world, theUnited States currently appears to claim, in effect, the legal right to kill any personit determines is a member o al-Qaida or its associated orces, in any state on Earth,at any time, based on secret criteria and secret evidence, evaluated in a secret pro-cess by unknown and largely anonymous individuals — with no public disclosure owhich organizations are considered “associated orces” (or how combatant status isdetermined or how the United States denes “participation in hostilities”), no meansor anyone outside that secret process to raise questions about the criteria or validityo the evidence, and no means or anyone outside that process to identi y or remedymistakes or abuses. US practices set a dangerous precedent that may be seized uponby other states — not all o which are likely to behave as scrupulously as US officials.

Democratic Accountability: Increased US reliance on lethal UAVs in cross-border tar-geted strikes also poses challenges to democracy and the American system o checksand balances. While we understand the administration’s reasons or considering ad-ditional transparency difficult, the effect o the lack o transparency is that the UnitedStates has been ghting what amounts to a covert, multi-year killing program. Withoutadditional in ormation, the citizenry cannot evaluate US targeted strikes.

Unmanned aerial vehicle strikes also raise questions about the continued efficacy otraditional congressional oversight mechanisms. Te Obama administration contin-ues to rely on the 2001 Authorization or Use o Military Force (AUMF) as the primarydomestic legal basis or US targeted strikes outside o “hot” battleelds, but the ad-ministration’s interpretation o the AUMF is extraordinarily broad — and even manyormer executive branch officials question whether Congress intended to authorizesuch an unbounded conict when the AUMF was passed in 2001.

Te covert or unacknowledged nature o most UAV targeted strikes also makes it di -cult or Congress to per orm its vital oversight unctions. CIA UAV strikes constitute“covert action” under US law, which means that the CIA need not give prior notice oparticular covert operations to any members o Congress except the so-called “Gango Eight.” Afer a covert action, the executive branch is required to noti y the ull intel-ligence committees, but not the ull Congress.

By law, the US military is prohibited rom engaging in covert action. It is important toemphasize, however, that the military isnot prohibited rom engaging in secret, unac-knowledged activities that are intended to remain unacknowledged, as long as theseactivities constitute “traditional military activities” under US law.

From the perspective o laypersons, both the CIA and the military can thus engage incovert strikes in the colloquial sense o the term. But while covert action undertakenby the CIA requires a presidential nding and notication — even i afer the act — othe congressional intelligence committees, secret, unacknowledged strikes carried outby the US military need not be reported to the intelligence committees, as the militaryreports instead to the House and Senate Armed Services committees.

At best, this ragmented oversight system creates con usion and a danger that criticalissues may slip through the cracks. Tis ragmented oversight system is particularly


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problematic given that in practice, the military and CIA generally work togetherquite closely when planning and executing targeted UAV strikes: ew strikes are “allmilitary” or “all CIA.” Te differing CIA and military reporting requirements createa risk o executive branch “ orum shopping,” tempting the executive branch to placea given targeted strike under the direction and control o whichever entity is deemedto have the most accommodating committee members. Even when the appropriatecongressional committees are ully brie ed, the classied nature o targeted strikes,whether CIA or military, makes oversight a challenge.

Future Technological Developments

UAV technologies will continue to evolve rapidly. Looking into the near uture, itseems likely that an increasing number o weapons will be adapted or use on UAVplat orms such that any weapon developed or a manned aircraf will soon be launch-

able rom an unmanned aircraf. UAVs will become more interoperable, and systemsofware likely will evolve to integrate multiple UAVs across an entire “combat cloud.”Autonomous UAV capabilities will also likely be developed.

Tese likely uture technological developments have the potential to be used both orgood and or ill, and the time to discuss their potential implications is now. Amongother things, we will need to reevaluate existing UAV-related Federal AviationAdministration rules and export control rules; at the moment, US export control rulesor UAVs do not appear well-suited to advancing US national security objectives.

SUMMARY OF RECOMMENDATIONSIn light o the oregoing concerns and conclusions, the task orce makes the ollowingrecommendations:

1. Conduct a rigorous strategic review and cost-benet analysis of the role of lethalUAVs in targeted counterterrorism strikes to evaluate the impact o past UAV strikeson terrorist organizations, affected communities, public opinion, litigation, de ensepolicy and government cooperation with allies and partner nations.

2. Improve transparency in targeted UAV strikes: as a general principle, the UnitedStates should acknowledge the use o lethal orce in oreign countries both to Congressand to the American public. While secrecy may be required be ore and during eachstrike, strikes generally should be acknowledged by the United States afer the act. Tepresident should publicly release in ormation on: the approximate number and gen-eral location o targeted UAV strikes; the number o individuals known to have beenkilled and their organizational affiliations; the number and identities o any civiliansknown to be killed, and the approximate number o strikes carried out by the military versus the CIA. Te president should also order the preparation and public release o adetailed report explaining the legal basis under domestic and international law or theUnited States conducting targeted killings.

3. ransfer general responsibility for carrying out lethal UAV strikes from the CIAto the military. While rare exceptions may be warranted, as a general principle, the


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Executive Summary

military should be the entity responsible or the use o lethal orce outside the UnitedStates, while the CIA should ocus on intelligence collection and analysis.

4. Develop more robust oversight and accountability mechanisms for targeted strikes

outside of traditional battleelds. Te president should, by executive order, create anonpartisan, independent commission to review lethal UAV policy. Members o thisindependent commission should be selected with a view to ensuring credibility and diversity o background. Te commission should not be directly involved in the pre-strikeapproval process, but should be tasked with reviewing the overall policy and approvalprocess or the use o lethal UAV strikes (both military and CIA); unclassied versionso the commission’s reports to the president and Congress should be released publicly.

5. Foster the development of appropriate international norms for the use of lethalforce outside traditional battleelds. Tese norms should rest upon a joint commit-

ment to ensuring that states have the ability to respond effectively to nontraditionalthreats rom nontraditional actors and a commitment to ensuring that the use o lethalorce remains consistent with core rule o law principles and respect or undamentalhuman rights. Rules and practices relating to the state use o lethal orce should betransparent and clear; lethal orce should not be used without adequate sa eguards toprevent arbitrariness and protect against error and abuse; and impartial accountabilitymechanisms must be available to investigate credible allegations o error and abuse,and, i appropriate, provide remedies.

6. Assess UAV-related technological developments and likely future trends, and

develop an interagency research and development strategy geared toward advanc-ing US national security interests in a manner consistent with our values. Tis reviewshould also ag any legal, ethical and strategic implications o emerging UAV-relatedtechnologies, including the possible uture development o autonomous weapons sys-tems, and lead to the development o a holistic interagency research, development anduse strategy or UAVs.

7. Review and reform UAV-related export control rules and FAA rules , with a viewto minimizing unnecessary regulatory burdens on the development o the US UAVindustry, while still sa eguarding our national security interests and ensuring respon-sible UAV development and use.

8. Te FAA should accelerate its efforts to meet the requirements of the 2012 FAAReauthorization Bill to ensure the sa e integration o civil unmanned aircraf systemsinto the national airspace system by Sept. 30, 2015, as required by law, but also consid-er whether certain commercial UAVs can be operated sa ely in the national airspaceprior to that date, and make exemptions as permitted as a stopgap measure towardthe development o a comprehensive regulatory ramework or both government andprivately operated UAVs.


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UAV ATTRIBUTES AND USESUAVs share some distinct attributes, which have made them attractive or military andcounterterrorist operations: 9

• Persistence: UAVs have the ability to loiter over a specic area or extended peri-ods o time, allowing them to capture and collect more in ormation 10 and allow-ing the user to observe, evaluate and act quickly. 11

• Precision: In military applications, UAVs’ sensor technology can provide or moreprecise in ormation collection that acilitates more accurate targeting as well asbattleeld and non-battleeld surveillance.

• Operational Reach: Because o longer ying times, UAVs can be used to projectorce rom a ar in environments that may otherwise be inaccessible or too dan-

gerous or manned operations.• Force protection: UAVs allow the user to have a military presence in areas that

otherwise would be impossible politically, capacity/resource prohibitive, too dan-gerous to risk being shot down, or topographically inhospitable.

• Stealth: While today’s UAVs can be readily detected by sophisticated air de ensesystems, most UAVs are relatively small, quiet and capable o being own at highenough altitudes to avoid detection by the individuals being surveilled or targeted.

UAVs have substantial value or a wide range o military and intelligence tasks. Onthe battleeld, both weaponized and nonweaponized UAVs can protect and aid sol-diers in a variety o ways. Tey can be used or reconnaissance purposes, or instance,and UAVs also have the potential to assist in the detection o chemical, biological, ra-diological and nuclear weapons, as well as ordinary explosives.12 Weaponized UAVscan be used to provide close air support to soldiers engaged in combat.13

UAVs also have enormous potential as transport vehicles: the Navy is exploring the useo UAVs to transport badly wounded casualties to eld trauma units, while the Armyis examining similar UAV applications or medical evacuation missions. Meanwhile,the Marine Corps has used two remotely piloted helicopters or cargo transport andresupply purposes, using external sling loads to deliver cargo in mountainous and hos-tile terrain. 14 Te military is also exploring the viability o using UAVs as an over-the-horizon communication relay tool.15

Military UAVs are also employed or disaster relie and humanitarian assistance pur-poses: Air Force UAVs provided vital imagery afer the 2010 earthquake in Haiti16 andthe typhoon that devastated the Philippines in November 2013,17 and Air NationalGuard UAVs assisted reghters combatting wildres in Cali ornia in August 2013.18 19

Over the past decade, weaponized UAVs have also become a widely used tool or coun-tering geographically diffuse terrorist networks. With their low prole and relative uel

efficiency — and without the constraints o pilot atigue — a typical UAV can spendmore “time on target” than manned aircraf, enabling better intelligence-gatheringand greater targeting precision, and reducing the risk o civilian casualties in missile


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Introduction

strikes.20 Te use o UAVs also allows the United States to honor the pre erences opartner nations that may be amenable to US missile strikes against targets in theirterritory, but unwilling to allow a sizeable US military presence on the ground. Betterstill, rom a orce protection perspective, lethal UAVs enable the United States to striketargets in dangerous and inaccessible areas with no short-term risk to US personnel.Unmanned aerial vehicles have been used extensively in A ghanistan and Iraq, or in-telligence, surveillance and reconnaissance (ISR) purposes, to carry out strikes and toprovide close air support to ground troops. Tey have also become a weapon o choiceor counterterrorism strikes in regions where US troops are not engaged in groundcombat. Between 2004 and 2014, US UAV strikes in Pakistan are estimated to havekilled approximately 2,000 to 4,000 people, while US strikes in Yemen are estimatedto have killed several hundred people.21 A small number o UAV strikes are believed tohave occurred in Somalia, and there are also unconrmed reports o US UAV strikesin a hand ul o other countries, including Mali and the Philippines.

CONTROVERSY AND CRITICISMWhile the use o UAVs or ISR, transport and close air support has been largely uncon-troversial, the growing use o lethal UAVs or targeted counterterrorism strikes awayrom so-called hot battleelds has generated substantial attention and criticism.22

US government officials argue that such strikes are both law ul and effective: as PresidentBarack Obama said in a May 2013 speech, “the United States has taken lethal, targetedaction against al-Qaida and its associated orces, including with remotely piloted aircrafcommonly re erred to as drones. … Dozens o highly skilled al-Qaida commanders,trainers, bomb makers and operatives have been taken off the battleeld. Plots have beendisrupted. … Simply put, these strikes have saved lives. Moreover, America’s actions arelegal.… We are at war with an organization that right now would kill as many Americansas they could i we did not stop them rst. So this is a just war — a war waged propor-tionally, in last resort, and in sel -de ense.”

Nevertheless, some commentators question the strategic value o US UAV strikes orcounterterrorism purposes, arguing that the availability o lethal UAVs has ueled a“whack-a-mole” approach to counterterrorism, drawn attention away rom non-ki-netic means o combating terrorist organizations, increased anti-American sentiment,eroded norms o sovereignty in ways ultimately likely to be detrimental to US interests,and created a slippery slope toward continual or widening conict and instability.23

Others charge that UAV strikes cause excessive civilian casualties. Te UnitedKingdom-based Bureau or Investigative Journalism estimates that US UAV strikes inPakistan have killed between 416 and 951 civilians, or instance, including as many as200 children, 24 and reports by human rights nongovernmental organizations (NGOs)have used similar estimates.25

Administration officials have questioned such gures, and in May 2013, PresidentObama stated that no UAV strikes are authorized outside o “hot battleelds” unlessthere is “near-certainty that no civilians will be killed or injured.”26 Nonetheless, sev-


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eral recent and well-publicized incidents involving civilian casualties have continuedto uel criticism, and the administration’s ailure to provide its own casualty estimatesor explain its methodology or determining civilian casualty numbers has done littleto reduce such criticisms.27

Other critics worry about the ethical and psychological impact o what they view as“remote-control killing.” Tus, Phillip Alston, the United Nations special rapporteuron extrajudicial, summary or arbitrary executions, and Hina Shamsi o the AmericanCivil Liberties Union criticize what they see as “the PlayStation mentality”28 created byUAV technologies: “Young military personnel raised on a diet o video games now killreal people remotely using joysticks. Far removed rom the human consequences otheir actions, how will this generation o ghters value the right to li e?”29

Finally, many critics, rom human rights NGOs to the New York imes editorial

board,30

worry that the availability o lethal UAV technologies has tempted the UnitedStates to engage in a largely covert campaign o targeted killing, creating, in effect, a“secret war” governed by secret law. Tese critics ocus not on UAVs as such, but thedegree to which UAV technologies have enabled the United States to use lethal orceagainst individuals located outside o traditional, territorially dened battleelds (e.g.,A ghanistan, Iraq or Libya).

In particular, controversy has swirled around what critics view as the relative lack otransparency and accountability in US targeted killings, and the potential implicationsthis has or domestic and international rule o law, especially i other states — includ-

ing many not known or their human rights records — mimic US precedents.


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TASK FORCE CONCLUSIONS

Tis report represents the culmination o a year-long process o consultations anddiscussions with current and ormer government and military officials, academicresearchers, NGO experts, legal experts and industry leaders. While the views wesolicited varied widely, members o the Stimson ask Force came to a number ostrong, shared conclusions.

We believe that UAVs should be neither gloried nor demonized. It is important totake a realistic view o UAVs, recognizing both their continuities with more traditionalmilitary technologies and the new tactics and policies they enable.

In general, we believe that the political and media discourse on UAVs has been charac-terized by a number o signicant misconceptions. In the rst part o this section, weattempt to dispel some common misconceptions about UAVs.

Specically, we note that most US military UAVs are not weaponized, and only a tinyraction o US government UAV missions involve targeted UAV strikes outside o tra-ditional, territorially dened battleelds such as those in A ghanistan, Iraq and Libya.

Further, UAVs are not US “super-weapons:” while their use has led to signicant tac-tical successes, they are not “strategic” weapons, and they currently have substantial vulnerabilities as well as strengths. Contrary to popular belie , UAVs are not necessar-ily cheaper than manned aircraf, and the United States does not have a monopoly onUAV technologies or an ability to predict all potential countermeasures; indeed, thereis reason to ear the rapid and uncontrolled proli eration o UAV technologies devel-oped in other states, along with the rapid evolution o technologies designed to counterUAVs. Finally, we address the widespread but erroneous belie that UAV strikes are aptto cause disproportionate civilian casualties, together with the claim that UAVs “turnkilling into a video game.”

In the second part o this section, we note that while UAVs, as such, present ew newmoral or legal issues, the availability o lethal UAV technologies has enabled US policiesthat likely would not have been adopted in the absence o UAVs. In particular, UAVshave enabled the United States to engage in the cross-border use o lethal orce againsttargeted individuals in an unprecedented and expanding way.

In our view, the expanding use o targeted killings outside o hot battleelds raisesnumerous concerns, some strategic and some legal and ethical. Te second part o thissection discusses those concerns.


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DISPELLING MISCONCEPTIONS

Most UAVs are not weaponized, and only a tiny fraction of US UAVmissions involve targeted UAV strikes outside of traditional battleelds.

Most US UAVs are unarmed: or instance, the US Department o De ense (DoD) cur-rently operates more than 8,000 unmanned aerial vehicles,31 which in 2010 made up41 percent o all DoD aircraf, and less than 1 percent o these UAVs carry operationalweapons at any given time (though a higher percentage o the vehicles are designed tocarry weapons i needed).32 o date, the majority o US UAV missions have been or in-telligence, surveillance and reconnaissance purposes. 33 It is the remaining small rac-tion o UAV missions that includes targeted strikes o al-Qaida and associated orces,primarily conducted by the Central Intelligence Agency (CIA) and to a lesser extentby the military.34 While such targeted UAV strikes have generated substantial and le-

gitimate concerns, it is important not to equate UAV technologies solely with lethalcounterterrorism strikes.

UAVs are not “super-weapons.”

In most respects, UAVs are merely a variant o existing aerial weapons delivery plat-orms. Tey have some capabilities existing manned aircraf lack: as noted previously,they can spend ar more time on target, with no risk to US personnel. But sophisticat-ed manned military aircraf possess many capabilities that existing UAVs lack: UAVsare ar more vulnerable than manned aircraf to being “hijacked” remotely by hostileorces with the requisite technologies, or instance, and they are currently also more

vulnerable to air de enses.35 All this may change as UAV technologies evolve: enhance-ments in UAV range, speed, stealth and autonomy will be crucial in ensuring that thenext generation o UAVs can survive in contested areas with sophisticated anti-accessand area-denial capabilities. UAV countermeasures will evolve alongside UAVs, how-ever, and they will evolve in ways difficult to predict.

In sum, while UAVs already have become an extremely valuable military tool on tra-ditional battleelds and beyond, they are not magic; they do not create “super-weap-ons” that can enable the United States to strike any person, anywhere on Earth, atany time. For now, the military utility o lethal UAVs is mostly limited to situationsin which they are used, either with host nation acquiescence or in territories lackingsophisticated air de ense systems, against relatively isolated terrorist targets.

UAVs are not inherently cheaper than manned aircraft.

Discussions o UAVs ofen assume that unmanned systems will always be less ex-pensive to operate than their manned counterparts. 36 In addition, acquisition costso a UAV plat orm tend to be lower than or manned plat orms. Tus, the cost orreplacing a downed UAV is likely to be less than replacing its manned equivalent.

But properly assessing the cost and cost-effectiveness o aircraf is complex, and manynumerical comparisons are measuring apples and oranges. One major problem in as-sessing the cost o a UAV — or any aircraf, or that matter — is the act that there is


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different types o UAVs. Such market in ormation actors heavily into manu acturers’decisions regarding the types and quantities o UAVs they will develop, produce andexport. In the ace o uncertainty, manu acturers tend to act conservatively to produceUAVs whose export control status is known — but this could chill innovation and dullthe technological edge the United States enjoys in the UAV arena, with negative conse-quences both or the civilian sector and or the military.

Meanwhile, FAA regulations generally do not allow UAVs to operate in the “nationalairspace system” (NAS). In cases where UAVs are own, the operators must have spe-cial permits that are ofen quite restrictive. Congress moved to allow UAVs to operatein domestic airspace with its passage o the FAA Modernization and Re orm Act o2012, which set a deadline o Sept. 30, 2015, to integrate UAVs into the national air-space system.47

Te FAA’s response to this legislation has been somewhat slow, however; the act re-quired the FAA to produce a roadmap or the integration o UAVs within a year oits enactment, effectively setting a deadline o Feb. 14, 2013.48 Te roadmap, however,was not released until Nov. 7, 2013, missing the deadline by nearly nine months. Tesedelays have costs: while US civilian UAV developers await greater government clarityon domestic UAV uses, civilian UAV markets abroad have rapidly expanded, 49 andother nations already have begun to address one o the most signicant hurdles tointegrating UAVs with civilian airspace: determining how UAV pilots will avoid in-aircollisions without the lines o sight and situational awareness available to a pilot in thecockpit, including testing “sense-and-avoid” capabilities.50

Te FAA is grappling with important and difficult issues. Yet should the FAA’smonths-long delays turn into years-long delays, the United States risks losing the ini-tiative in the development o commercial UAV technology. Te state that becomes the“rst-mover” to ully integrate UAVs into their national airspace may, i given enougho a lead, become a center or the development and sale o UAVs, giving a competi-tive edge to its domestic manu acturers. I another state gains such an advantage, theUnited States would then be in a position o playing catch-up in terms o establish-ing its market or commercial UAVs, restoring American manu acturers’ edge on theglobal market, and ensuring US military UAVs remain technologically more advancedthan those o other nations.Unless the United States can nd ways to jump-start the broader civilian UAV devel-opment sector, oreign UAV buyers will turn increasingly to countries developing moreadvanced plat orms, and the United States will gradually lose any ability to shape UAVuse abroad. Many o the UAVs developed or oreign markets will be used solely orpeace ul purposes, but we cannot assume that this will always be the case,51 as manyUAV technologies developed or commercial civilian purposes can be “weaponized.”52

UAVs do not “cause” disproportionately high civilian casualties.

Lethal UAV strikes requently have been criticized or their alleged tendency to causeexcessive civilian casualties. Tis criticism has little basis in act. Contrary to popular


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Task Force Conclusions

belie , UAV technologies, in act, enable greater precision in targeting than most othercommon means o war are.

UAVs are a plat orm or tactical air-to-sur ace missiles, such as Hellre II missiles,

which themselves are very accurate munitions or tactical strikes, whether they arelaunched rom manned or unmanned plat orms. In contrast to manned aircraf, how-ever, UAVs enable “persistent surveillance”: they can spend hours, days, weeks or evenmonths monitoring a potential target. Equipped with imaging technologies that en-able operators, who may be thousands o miles away, to see details as ne as individualaces, modern UAV technologies allow their operators to distinguish between civiliansand combatants ar more effectively than most other weapons systems — including,most especially, manned aircraf.

No weapons system is per ect, and targeting decisions — whether or UAV strikes or

or any other weapons delivery system — are only as good as the intelligence on whichthey are based. We do not doubt that some US UAV strikes have killed innocent civil-ians. Nonetheless, the empirical evidence suggests that the number o civilians killed issmall compared to the civilian deaths typically associated with other weapons deliverysystems (including manned aircraf). Te requency and number o civilian casualtiesresulting rom US drone strikes also appear to have dropped sharply in recent years, asUAV technologies have improved and targeting rules have been tightened.53

UAVs do not turn killing into “a video-game.”

Tere is also little reason to view UAVs as uniquely creating a “PlayStation mentality”about war. As noted earlier, there is nothing new about discom ort with innovations inlong-distance weapons. UAVs permit killing rom a sa e distance — but so do cruise mis-siles and snipers’ guns. And ironically, the men and women who remotely operate lethalUAVs have a ar more “up close and personal” view o the damage they inict than thepilots o manned aircraf, who speed past their targets in seconds rom ar above. In act,some evidence suggests that UAV operators are particularly vulnerable to post-traumaticstress: they may watch their targets or weeks or even months, seeing them go about theroutines o daily li e, be ore one day watching on-screen as they are obliterated.54

CONCERNSEvolution of Technology

As a threshold matter, it is important to note that lethal UAVs as such present ew newlegal or policy issues, and many o the most- requently voiced criticisms o UAVs areactually criticisms o the policy decisions and legal questions relating to their currentuse. But the act that UAVs per se present no new moral or legal issues does not meanthat there is no reason to be concerned about UAV technologies and their use.

Since the dawn o mechanization, militaries have sought to replace people with moreeffective machines. Te development o UAVs has continued this pattern. 55 Althoughtechnological progress can reduce costs, increase efficiency and create new capabilities,we should not become in atuated with new technological toys, or overcondent in theability o new technologies to solve complex problems.56 Most important, we must en-


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sure that policy and strategy drive technological development, and that alluring newtechnologies do not drive policy instead.

As a nation, we need to think hard about the direction o uture UAV-related research,

development, export controls and legal norms. As noted previously, UAV-related tech-nologies are evolving rapidly, and much o that evolution is driven by the civilian com-mercial sector and by oreign markets and oreign manu acturers. I we do not makethought ul decisions now about the technologies we want and do not want to see devel-oped and the rules that should govern their sale and use, UAV technologies will evolvewithout our guidance.

Likely Technological Advances

Looking into the near uture, it seems likely that an increasing number o weapons willbe adapted or use on UAV plat orms such that any weapon developed or a mannedaircraf will soon be launchable rom an unmanned aircraf. UAVs will become moreinteroperable, and system sofware likely will evolve to integrate multiple UAVs acrossan entire “combat cloud.” Although development in this area is still in its in ancy — andproblems persist including overloading the command and control link and lost data con-nections — we are likely to see continued advances in UAV interoperability.57

Advances in UAV interoperability will provide a variety o battleeld advantages, in-cluding improved situational awareness, trans er o surveillance data, coordination,navigation with respect to other aircraf, and even UAV sel -organization or offensivecapabilities.58 UAV “swarms” — groups o UAVs that communicate and per orm coor-dinated tasks59 — increasingly will be used in a variety o missions, including provid-ing more precise ISR.60

Another actor to consider is the probable uture development o autonomous UAV ca-pabilities. Autonomy could be a major enabler in anti-access and area-denial (A2/AD)zones, where remote-piloting and real-time links may be compromised.61 Autonomycould grant UAVs the ability to continue with pre-programmed plans even i data con-nections are lost or communication links are compromised over A2/AD areas.62 Butincreasing UAV autonomy also could accelerate the tempo o conict, which couldreduce decision-making time and result in increased human error.

Autonomy poses ethical and legal conundrums as well, 63 particularly i UAVs are developed that can make the decision — on their own — to re a weapon without anyhuman in the loop or approval. 64 For the time being, DoD policy states that no UAVwill be allowed independently to launch any kind o weapon without human approv-al.65 However, current DoD directives raise the possibility o permitting the use o suchautonomous weapons in the uture, with the approval o high-ranking military andcivilian officials.

All these likely uture technological developments have the potential to be used bothor good and or ill, and the time to discuss their potential implications is now — notafer they are in use.


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Rethinking Export Controls

Among other things, we will need to reevaluate existing UAV-related export controlrules. Te purpose o UAV export control regimes is to prevent the harm ul proli era-tion o UAV and missile technology, with a particular ocus on limiting oreign accessto UAV systems capable o delivering weapons o mass destruction (WMD), such asnuclear devices or biological and chemical weapons. At the same time, export controlregulations should not unduly suppress exports or valuable technological innovations.

A well-planned export control regime can boost the military capability o allied na-tions, enhance interoperability o military systems among allies, preserve US inuenceover oreign nations’ military UAV programs, and strengthen the domestic US de enseindustrial base economically and technologically. A poorly conceived control systemwill have the opposite effect, suppressing use ul innovation, limiting interoperabilitywith allies, reducing US inuence over oreign UAV development and weakening thede ense industrial base. At the moment, however, it is unclear whether US export con-trol rules or UAVs appear well-suited to advancing US national security objectives. Asnoted earlier, the US export control regulations vaguely identi y “military” UAVs assubject to the stricter controls administered by the US State Department.

Moreover, beyond the regulatory jurisdiction, there are also important questions re-garding US licensing policy or UAVs. Te United States currently applies a “strongpresumption o denial” or all UAVs that can deliver a payload o at least 500 kilogramsand that are able to y more than 300 kilometers. Tis licensing policy con orms withUS multilateral commitments or these UAVs, which are considered as “Category I”items under the Missile echnology Control Regime (M CR) non-proli eration con-trols. Te M CR also covers “Category II” UAVs, i.e. complete UAV systems that donot all under Category I and that have a range equal to or greater than 300 km, as wellas certain other UAVs. Te United States reviews Category II UAV licenses on a case-by-case basis.

Te basic issue is whether US licensing policy is well tailored to US national securityinterests and other policy considerations. For instance, the presumption o denial orCategory I UAVs maintained by the United States and its M CR partners (and M CRadherents such as Israel) might enable non-M CR members to gain global market share,reducing US non-proli eration leverage and weakening the US de ense industrial base.Yet the M CR limits do not affect the US UAV industry’s access to US Department oDe ense procurement, which itsel is a large raction o the world market. Moreover, theglobal market may be more ocused on smaller, less-capable UAVs, reducing the impacto the Category I presumption o denial.

Conversely, it is possible that US licensing policy should discourage the export o UAVsthat have capabilities o concern other than the rather simplistic range and payloadcriteria in the M CR. For example, a eet o small UAVs (that would all outside oCategory I) could have a highly lethal and highly evasive “swarming” capability. Othercharacteristics that may present concerns would be: high rates o speed, robust surveil-lance payloads, low observable eatures and anti-aircraf countermeasures.


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Te task orce is aware that the administration has been conducting and is nearingcompletion on a detailed review o UAV export controls. We welcome this review,which we hope will move the United States toward export control regulations andlicensing policies that are well tailored to US national security and economic interests.

Targeted Strikes Outside of Traditional Battleelds

Te availability o weaponized UAVs almost surely has led US decision-makers toadopt counterterrorism tactics that probably would have been deemed too risky orpolitically unacceptable had UAVs not been an option.

Specically, i lethal UAVs were not an option, we doubt that the United States wouldhave engaged in nearly as many targeted strikes against suspected terrorists in plac-es such as Pakistan and Yemen.66 In such contexts, airstrikes using manned aircrafwould generally be viewed as creating an unacceptably high risk o civilian casual-ties.67 Raids involving US orces on the ground — including special operations orces— would create a similar risk o unintended civilian casualties, and would also createa risk o signicant US casualties. Finally, the relative invisibility o UAVs enables rel-ative deniability, ofen a convenience to host nations that are unwilling to appear tohave welcomed a US military presence inside their territory.

Te existence o weaponized UAVs did not “cause” the United States to engage in tar-geted killings o terror suspects outside o traditional territorially bounded battleelds,but it seems reasonable to conclude that their existenceenabled a signicantly expand-ed US campaign o targeted cross-border strikes against suspected terrorists.68 AnalystSarah Krebs, a ormer Air Force acquisitions officer now on the Cornell Universityaculty, noted in April 2014 that “o the estimated 465 non-battleeld targeted killingsundertaken by the United States since November 2002, approximately 98 percent werecarried out by drones.”69 Te number o US strikes appears to have peaked in 2010 inPakistan and in 2012 in Yemen, but the United States shows no sign o ending the useo such strikes. In Yemen, UAV strikes in April 2014 killed an estimated 40 people.70

We believe that this campaign o targeted killings raises numerous questions, somestrategic, some legal and ethical.

Lethal UAVs, Targeted Strikes and Strategic RiskStrategically , we are concerned that the administration’s heavy reliance on targetedkillings as a pillar o US counterterrorism strategy rests on questionable assumptionsand risks increasing instability and escalating conicts.

In certain circumstances, targeted strikes against particular individuals may haveenormous strategic value. Tis is particularly likely to be true when the individuals inquestion possess and are likely to utilize unique knowledge and skills, whether thoseskills are technical or organizational in nature. At times, strikes against key terroristoperatives and agents might be critical to preventing an imminent attack; similarly, in

some circumstances killing specied individuals may have a deterrent or demoralizingeffect on other operatives or potential recruits.


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But while tactical strikes may have helped keep the homeland ree o major terroristattacks, existing evidence indicates that both Sunni and Shia Islamic extremist groupshave grown in scope, lethality and inuence in the broader area o operations in theMiddle East, A rica and South Asia. Prior to 9/11 such extremist groups operated in agenerally conned geographic area near the A ghanistan/Pakistan border area. oday,such groups operate rom Nigeria to Mali, to Libya, to the Sinai, to Syria, to Iraq, toPakistan, A ghanistan and beyond, and there is no indication that a US strategy todestroy al-Qaida has curbed the rise o Sunni Islamic extremism, deterred the estab-lishment o Shia Islamic extremist groups or advanced long-term US security interests.

Te use o targeted UAV strikes to gain tactical advantage has led to some success-es in various geographic areas o operations, but evidence about the scope, number,and lethality o terrorist attacks worldwide suggest that al-Qaida elements still havea broad reach and, potentially, a decades-long li espan. Tese weapons will be parto that struggle, but they will not de eat the broader strategic threat. In act, evidencesuggests that the broader strategic struggle against terrorist entities is not succeeding.71

Furthermore, US targeted strikes also create new strategic risks. Tese include:

Possible Erosion of the Norm of Sovereignty

Te growing use o UAVs outside o hot battleelds may erode the norm o state sover-eignty in ways ultimately harm ul to US interests. While the US use o manned aircrafor special operations raids would also raise sovereignty concerns i used or cross-bor-der targeted killings, the relative greater requency o US UAV strikes72 increases theodds that a oreign state or elements within it will consider its sovereignty to have beenin ringed upon. 73

Currently, US UAV strikes in Pakistan and Yemen appear to have been carried outwith the actual or tacit consent o those states’ governments,74 but that consent appearssomewhat ambiguous. In the case o Pakistan, or instance, both parliament and thecourts75 have declared US UAV strikes unlaw ul violations o Pakistan sovereignty,a sentiment that has been echoed by some executive branch representatives,76 evenas other Pakistani executive branch officials continue to offer intermittent coopera-tion with US strikes. In the case o Yemen, many Yemenis eel that the president, Abd

Rabbuh Mansur Hadi, who approved US UAV strikes, does not represent the views othe population.

Te US government takes the view that it has a legal right to use orce in the terri-tories o oreign sovereign states when those states are “unwilling or unable” to takewhat the United States considers appropriate action to eliminate what it sees as immi-nent threats. But inevitably, assessments o what constitutes an imminent threat to theUnited States and what would constitute appropriate action are somewhat subjective innature; the United States may view the use o orce as justied even when US allies andpartners do not. Te US use o orce in sovereign nations whose consent is question-

able or nonexistent may encourage other states to ollow suit with their own militaryplat orms or even commercial entities.77


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Blowback

Civilian casualties, even i relatively ew, can anger whole communities, increaseanti-US sentiment and become a potent recruiting tool or terrorist organizations. 78 Even strikes that kill only terrorist operatives can cause great resentment, particu-larly in contexts in which terrorist recruiting efforts rely on tribal loyalties or on aneconomically desperate population.

Friends, amily and ellow tribe members o those attacked or harmed in strikes maybecome hostile to the United States, and, over years, their hostility may cost the UnitedStates in terms o oreign cooperation, hostility to US travelers and oreign businessand support or terrorism. UAV “hunter-killer” operations may also go against thelarger counterterrorism and counterinsurgency strategy o attempting to gain supporto local populations to deter them rom supporting al-Qaida and associated orces. 79Even where strikes kill only legitimate targets, the perceived insult to sovereignty — inplaces such as Pakistan and Yemen and among ellow tribe members o the dead —sparks bitterness, eelings o nationalism or other orms o identity politics violentlyhostile to US military operations or Americans.80

As retired Army Gen. Stanley McChrystal, ormer International Security AssistanceForce (ISAF) commander in A ghanistan, has noted, “Te resentment created byAmerican use o unmanned strikes ... is much greater than the average American ap-preciates. Tey are hated on a visceral level, even by people who’ve never seen one orseen the effects o one.” Te unmanned strikes, McChrystal says, create a “perceptiono American arrogance that says, ‘Well we can y where we want, we can shoot wherewe want, because we can.’ ”81

UAV strikes by the United States have also generated a backlash in countries not di-rectly affected by the strikes, in part due to the perception that such strikes cause ex-cessive civilian deaths, and in part due to concerns about sovereignty, transparency,accountability and other human rights and rule o law issues. (Tese are discussedmore ully below.) In February 2014, or instance, the European Parliament voted 534-49 or a resolution condemning US drone strikes, asserting that “thousands o civilianshave reportedly been killed or seriously injured by drone strikes [but] these gures aredifficult to estimate, owing to lack o transparency and obstacles to effective inves-tigation.”82 Te resolution went on to call or EU member states to “oppose and banthe practice o extrajudicial targeted killings [and] ensure that the member states, incon ormity with their legal obligations, do not perpetrate unlaw ul targeted killings oracilitate such killings by other states.”83

National officials, parliamentarians and thought leaders in numerous allied countriesand at the United Nations have questioned or condemned US targeted strikes.84 WhileUS officials may take the view that such criticisms are based on erroneous in ormationor an incorrect reading o the applicable law, the act remains that when allies and part-ners do not support US policies, we pay a price. Te price may be direct — allies may beunwilling to share intelligence data crucial to targeting, or instance, or ear o incurringlegal liability in their own courts or or ear o domestic political consequences — or itmay be indirect — anger at US targeted strikes may translate into lower levels o co-


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targeted strikes, while others — e.g., efforts to build riendly relationships with local com-munities and inspire cooperation — may not be combined as easily.

A serious counterterrorism strategy needs to consider care ully, and reassess constant-

ly, the balance between kinetic action and other counterterrorism tools, and the poten-tial unintended consequences o increased reliance on lethal UAVs, including erosiono sovereignty norms, blowback and the possibility o prolonging or escalating conictand instability. 87

Legal and Ethical Issues Connected to Targeted Lethal UAV Strikes

Transparency

Media and NGO reports have documented numerous UAV strikes in Pakistan, Yemen,Somalia and elsewhere, and administration officials have discussed in broad outline

the targeting process and the legal theory that underlies cross-border targeted kill-ings. But the administration has disclosed details relating to only a hand ul o targetedstrikes against American citizens: or the most part, the identities o those targetedand the basis or their targeting have not been disclosed.88 Details relating to incidentsthat may have involved civilian casualties also have not been disclosed. In court lings,the administration continues to state that it will neither conrm nor deny particularstrikes, or even the existence o such strikes as a general matter.

While administration officials have made an effort to address public concerns by moreully explaining the logic and legal theories behind targeted strikes,89 it remains di -

cult to know precisely how requently there are targeted killings by UAVs, who hasbeen targeted, where the strikes occur, whether targeting decisions have been madeappropriately, how many civilians have been killed, and so on.

We recognize that US officials requently have compelling reasons to re rain rom pro- viding some o this in ormation to the public. Disclosing the evidence that led to thetargeting o a particular individual might expose intelligence capabilities that are e -ective only i secret; in some circumstances, disclosure might jeopardize the sa ety ohuman intelligence assets. Naming potential targets or targeted organizations creates arisk that those individuals or organizations will go “underground” even as they contin-

ue to plan terror attacks, making prevention o uture attacks more difficult. Disclosingpast strikes may also anger, and prevent uture cooperation rom, countries that haveagreed to strikes only on condition that US activities in their territory remain secret.

We believe that US government decision-makers make targeting decisions in goodaith and with genuine care. All o us on this task orce have worked inside the ex-ecutive branch and have great respect or the integrity and thought ulness o the in-dividuals connected with targeted strike decisions, rom the president down to themen and women piloting weaponized UAVs. Indeed, we are inclined to believe thatthe majority o those targeted by US UAV strikes are individuals who could be widelyacknowledged as legitimate targets i the in ormation relating to their targeting weremade public. Nonetheless, we are concerned by the continuing lack o transparencyrelating to US targeted killings.


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It is important to note that targeted strikes outside o “hot battleelds” are carriedout both by the military and by the CIA.90 While the United States has not ormallyacknowledged most such strikes by either agency,91 ar more is known publicly aboutthe targeting procedures or military strikes than or CIA strikes.

Te Department o De ense has a robust procedure or targeting, with outlined au-thorities and steps, and clear checks on individual targets. Te authorization o a UAVstrike by the military ollows the traditional process in place or all weapons systems(be they MQ-9 Reaper drones or F-16 ghter jets). Regardless o whether particularstrikes are acknowledged, the Pentagon has stated that UAV strikes, like strikes rommanned aircraf, are subject to the military’s pre-strike target development proceduresand post-strike assessment.

Te process o determining and executing a strike ollows a specic set o steps to

ensure delity in target selection, strike and post-strike review.92

Te rst step, targetdevelopment, involves our stages: target analysis, vetting, validation and nomination.By creating a cross-agency and cross-service vetting process, the target developmentprocedure ensures that 1) the target achieves the objectives and goals dictated by theorce commander, and 2) a targeted strike does not conict with the goals or objectiveso other services or agencies.

Following each strike, a post-strike review is carried out both at the tactical level (withinput rom the unit) and at the operational level — in order to determine whether thetarget was carried out in line with rules o engagement and how the strike’s success

or ailure ts into the larger operational strategy. Te chain o command within themilitary process is well dened, and helps ensure proper accountability. Ultimately,the commander has authority and accountability or the strike, but is assisted at allsteps in the targeting process by judge advocate general lawyers (JAGs). JAGs providelegal advice on the proper rules o engagement, including those in connection with anymission changes during the operation.

Under itle 50 o the United States Code, CIA strikes and the process or determiningtargets are kept out o the public eye. As a result, it is difficult to discern whether theCIA ollows similar rules and procedures when targeting. Press reports, based on leaksrom administration officials, suggest that the CIA allows or more rapid and efficienttargeting than the military — including an ability to react to imminent threats withoutthe burden o multi-service and multi-agency oversight. But this more rapid processmay run the risk o reducing needed internal checks and balances. While administra-tion officials suggest there is an extensive review process or CIA strikes, it remains un-clear who is involved in the process, which agencies and departments provide checksand oversights, how the chain o command works, and, in terms o accountability, whoultimately is responsible or the strikes.

Law Versus the Rule of Law

From a US government perspective, the United States is in an ongoing armed conictwith al-Qaida and its “associated orces.”


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As a domestic law matter, the use o lethal orce against al-Qaida was authorized by the2001 Authorization or the Use o Military Force (AUMF) passed by Congress a ewdays afer the 9/11 attacks. Te AUMF placed no geographic or temporal limitations onthe use o orce; it states only that the president may use “all necessary and appropriateorce against those nations, organizations or persons he determines planned, autho-rized, committed or aided the terrorist attacks that occurred on Sept. 11, 2001.”93 TeObama administration has interpreted this broadly, arguing that the AUMF shouldbe read to authorize the use o orce against not only al-Qaida and the aliban, butagainst any organizations or persons it views as “associated orces” o al-Qaida, eveni those “associated” groups or individuals had no connection to the 9/11 attacks andpose no direct threat to the United States. On this apparent basis, the administrationhas justied targeted strikes against al-Shabab militants in Somalia, as well as assortedmilitants in Pakistan and Yemen.94

As an international law matter, the existence o an armed conict between the UnitedStates and al-Qaida triggers the applicability o the law o armed conict, which per-mits the United States to target al-Qaida operatives as enemy combatants. Te law oarmed conict permits status-based targeting: that is, al-Qaida combatants are targe-table because o who they are, not because o their activities. By extension, members oorganizations that ght alongside al-Qaida are also targetable as co-belligerents. Andunlike ordinary domestic law or international human rights law, the law o armedconict does not require the United States to provide due process to enemy combatantsbe ore targeting them, and it does not require the United States to compensate enemy

combatants or their amilies or injuries, deaths or property damage.Beyond the law o armed conict, international law also recognizes that states have theright to use armed orce outside their own borders when doing so is necessary to prevent an imminent attack.95 US officials there ore have argued that cross-border target-ed strikes against terror suspects are permitted both under the law o armed conictand under the international law o sel -de ense.

Tese are plausible interpretations o existing US and international law, and we dis-agree with those critics who have declared that US targeted killings are “illegal.” But“legality” and “the rule o law” are not the same thing. Changing technologies andevents have made it increasingly difficult to apply the law o armed conict and theinternational law relating to the use o orce in a consistent and principled manner,leading to divergence between “the law” and the corerule o law principles that tradi-tionally have animated US policy.

Te law o armed conict and the international legal rules governing the use o orceby states arose in an era ar removed rom our own. When the Geneva Conventions o1949 were drafed, or instance, it was assumed that most conicts would be betweenstates with uni ormed, hierarchically organized militaries, and that the temporal andgeographic boundaries o armed conicts would be clear.

Te paradigmatic armed conict was presumed to have a clear beginning (a decla-ration o war) and a clear end (the surrender o one party, or a peace treaty); it wasalso presumed the armed conict to be conned geographically to specic, identi-


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A great deal o ink has been spilled in efforts to dene “the rule o law.” For present pur-poses, it is probably sufficient to use the denition adopted by the US Army:

“Rule o law is a principle o governance in which all persons, institutions

and entities, public and private, including the state itsel , are accountableto laws that are publicly promulgated, equally en orced and independent-ly adjudicated, and which are consistent with international human rightsprinciples.”99

Te Army’s Rule o Law Handbook adds that the rule o law urther requires that

• Individuals are secure in their persons and property;

• Te state is itsel bound by law and does not act arbitrarily;

• Te law can be readily determined and is stable enough to allow individuals to

plan their affairs;• Individuals have meaning ul access to an effective and impartial legal system; and

• Te state protects basic human rights and undamental reedoms. 100

Te United States was ounded upon rule o law principles, 101 and historically hassought to ensure that its own actions, international law and the actions o oreign statesare consistent with these principles. oday, however, despite the undoubted good aitho US decision-makers, it would be difficult to conclude that US targeted strikes areconsistent with core rule o law norms.

Consider US targeted strikes rom the perspective o individuals in — or instance —Pakistan or Yemen. From the perspective o a Yemeni villager or a Pakistani living inthe Federally Administered ribal Areas (FA A), li e is ar rom secure. Death cancome rom the sky at any moment, and the instability and incoherence o existing le-gal categories means that there is no way or an individual to be certain whether he isconsidered targetable by the United States. (Would attending a meeting or communitygathering also attended by an al-Qaida member make him targetable? Would rentinga building or selling a vehicle to a member o an “associated” orce render him targe-table? What counts as an “associated orce?” Would accepting nancial or medical aid

rom a terrorist group make him a target? Would extending hospitality to a relativewho is affiliated with a terrorist group lead the United States to consider him a target?)

From the perspective o those living in regions that have been affected by US UAVstrikes, this uncertainty makes planning impossible, and makes US strikes appear ar-bitrary. What’s more, individuals in states such as Pakistan or Yemen have no ability toseek clarication o the law or their status rom an effective or impartial legal system,no ability to argue that they have been mistakenly or inappropriately targeted or thatthe intelligence that led to their inclusion on a “kill list” was awed or abricated, andno ability to seek redress or injury. Teir national laws and courts can offer no assis-

tance in the ace o oreign power, and ar rom protecting their undamental rightsand reedoms, their own states may in act be deceiving them about their knowledgeo and cooperation with US strikes. Meanwhile, geography and nances make it im-


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what amounts to a covert, multi-year killing program. But without additional in or-mation about the locations and requency o UAV targeted strikes; without in orma-tion about the numbers and identities o those killed and injured; without in ormationeven about the budgetary implications o covert targeted strikes: how can the citizenryevaluate US targeted strikes?UAV strikes also raise questions about the continued efficacy o traditional congressio-nal oversight mechanisms. Because UAV strikes do not require placing US troops intocombat situations — and because such strikes may be sporadic — the administrationhas asserted that it is not required to noti y the ull Congress o targeted strikes or seekcongressional authorization. 105 At the moment, the Obama administration continuesto rely on the 2001 Authorization or Use o Military Force as the primary domesticlegal basis or US targeted strikes outside o “hot” battleelds. But as noted earlier, theadministration’s interpretation o the AUMF is extraordinarily broad, and even manyormer executive branch officials question whether Congress intended to authorizesuch an unbounded conict when the AUMF was passed in 2001.106

Te covert or unacknowledged nature o most UAV targeted strikes also makes it di -cult or Congress to per orm its vital oversight unctions. CIA UAV strikes constitute“covert action” under US law, which denes “covert action” as any “activity or activitieso the United States government to inuence political, economic or military conditionsabroad, where it is intended that the role o the United States government will not beapparent or acknowledged publicly.”107 Te CIA requires a presidential “nding” to au-thorize covert action, and i such presidential authorization is received, the CIA neednot give prior notice o particular covert operations to any members o Congress ex-cept the so-called “Gang o Eight.” (the chairman and ranking members o the Senateand House Intelligence committees, the speaker and minority leader o the House andthe majority and minority leaders o the Senate). Afer a covert action, the executivebranch is required to noti y the ull intelligence committees, but not the ull Congress.

echnically, the US military is not permitted to engage in “covert action” as dened bylaw. It is important to emphasize, however, that the military is not prohibited rom engag-ing in secret, unacknowledged activities that are intended to remain unacknowledged,or US law states that “traditional military activities” do not constitute “covert action.”108

While “traditional military activities” are not dened by law, the con erence reportaccompanying the covert action statute commented, “It is the intent o the con ereesthat ‘traditional military activities’ include activities by military personnel under thedirection and control o a United States military commander (whether or not the USsponsorship o such activities is apparent or later to be acknowledged) preceding andrelated to hostilities which are either anticipated (meaning approval has been given bythe National Command Authorities or the activities and/or operational planning orhostilities) to involve US military orces, or where such hostilities involving UnitedStates military orces are ongoing, and, where the act o the US role in the overall op-

eration is apparent or to be acknowledged publicly.”109Since the United States regards itsel as in an acknowledged armed conict with al-Qa-ida and its associates, this means, in effect, that the military may, consistent with cur-


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rent US law, carry out secret, unacknowledged strikes against those it believes to bemembers o al-Qaida and its “associated orces” without technically violating the legalprohibition on covert military activities.

From the perspective o laypersons, both the CIA and the military can thus engage incovert strikes in the colloquial sense o the term. But while covert action undertakenby the CIA requires a presidential nding and notication — even i afer the act — othe congressional intelligence committees, secret, unacknowledged strikes carried outby the US military need not be reported to the intelligence committees, as the militaryreports instead to the House and Senate Armed Services committees.

At best, this ragmented oversight system creates con usion and a danger that criticalissues may slip through the cracks. As a recent Council on Foreign Relations brienotes, “Sometimes oversight is duplicated among the committees; at other times, there

is con usion over who is mandated to oversee which operations.”110

Tis ragmentedoversight system is particularly problematic given that, in practice, the military andCIA generally work together quite closely when planning and engaging in targetedUAV strikes: ew strikes are “all military” or “all CIA.” Te differing CIA and militaryreporting requirements create a risk o executive branch “ orum shopping,” temptingthe executive branch to place a given targeted strike under the direction and control owhichever entity is deemed to have the most accommodating committee members.111

Recent congressional efforts to address these issues have been unavailing. In February2014, or instance, Sen. Carl Levin, chairman o the Senate Armed Services Committee

(SASC), sought to hold a joint classied hearing with the Senate Intelligence Committeeat which both CIA and military officials would appear simultaneously to discuss CIAand military UAV strikes. Te White House re used to provide the SASC memberswith the security clearances needed to be brie ed on CIA programs, however.112

Even leaving aside the division o oversight authority between the intelligence andarmed services committees, it is unclear how effective existing oversight mechanismsare or either the CIA or the military. Critics o intelligence committee oversight notethat committee members may receive only oral briengs on particularly sensitive“controlled access programs,”113 making meaning ul scrutiny impossible. Meanwhile,on the military side, until 2013 there was no statutory requirement that these commit-tees be notied o all targeted strikes.

In 2013, Congress passed the Oversight o Sensitive Military Operations Act (OSMOA)as part o the National De ense Authorization Act.114 OSMOA required the Pentagon tonoti y the House and Senate Armed Services committees ollowing every military tar-geted strike outside o A ghanistan, and required DoD to develop a system to ensurecompliance with this requirement. OSMOA also required DoD to report to the ArmedServices committees within 60 days to provide “an explanation o the legal and policyconsiderations and approval processes used in determining whether an individual orgroup o individuals could be the target o a lethal operation or capture operation con-ducted by the Armed Forces o the United States.”115


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RECOMMENDATIONS

On May 23, 2013, President Obama delivered a major speech at the National De enseUniversity in which he acknowledged many o the same concerns addressed in thisreport. In his speech, he pledged to continue the difficult task o ensuring that the useo lethal UAVs is both strategically sound and consistent with long-standing US com-mitments to democracy, accountability and the rule o law.

Tis report represents a preliminary effort to respond to the president’s call or con-structive new approaches to thinking about UAVs. Te oregoing analysis highlightsthe questions and concerns we view as most pressing. Tis section contains detailedrecommendations or overhauling UAV strategy; improving oversight, accountabilityand transparency; developing orward-looking international norms relating to the useo lethal orce in nontraditional settings; and devising sound UAV export control andresearch and development policies.

UAV technologies are here to stay. Used oolishly, they can endanger our interests,diminish regional and global stability and undermine our values. Used wisely, theycan help advance our national security interests even as we oster a more robust inter-national commitment to the rule o law.

We believe this report offers a use ul ramework or ensuring that the United Statesuses these new technologies wisely, and we look orward to discussing our recommen-dations with the administration and the public.

1. Conduct a strategic review of the role of lethal UAVs in targetedcounterterrorism strikes.

Te US government should conduct a thoroughgoing interagency strategic review o theuse o UAVs in targeted counterterrorism strikes. At a minimum, the review should:

• Evaluate the impact o past UAV strikes on terrorist organizations, with regard tocapabilities, threats currently posed, morale and recruiting.

• Evaluate the impact o such strikes on affected communities including attitudestoward their own governments, toward the United States, toward the West, to-ward al-Qaida’s ideology and toward terrorist organizations.

• Evaluate the impact o such strikes on public opinion, litigation, de ense policyand government cooperation in allies and partner nations.

• Evaluate rigorously the costs and benets both o specic strikes and o kinetic versus non-kinetic means o combatting terrorism on a country-by-country, re-gion-by-region basis.


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• Lay out guidelines, consistent with broader US government counterterrorismstrategy, or determination o when targeted strikes are appropriate, and or on-going reassessment o the strikes’ effects and value.

We urge the president to order such a review with a clear time rame or completionand a commitment to provide the ull Congress with a thorough report on the strategicreview, as well as an unclassied report to the American public (see also recommen-dation 4, below).

I the president does not make such a commitment, we urge Congress to mandate sucha review and reporting process.

Tis review and reporting process should supplement, not substitute or, an indepen-dent review as outlined in recommendation 4, below.

2. Improve transparency in targeted UAV strikes.As a general principle, the United States should acknowledge the use o lethal orce inoreign countries both to Congress and to the American public. While secrecy may berequired be ore and during each strike, strikes should generally be acknowledged bythe United States afer the act. We do not believe it is consistent with American valuesor the United States to carry on a broad, multi-year program o targeted strikes inwhich the United States has acknowledged only the deaths o our US citizens, despiteclear evidence that several thousand others have also been killed.

• Te United States should, as a matter o general policy, re rain rom promisingoreign governments that it will keep secret its own use o lethal orce.

° Tere may be occasional circumstances in which strikes must be covertand/or unacknowledged, but covert or unacknowledged strikes shouldbe the rare exception, not the rule.

° I circumstances require the covert/unattributed use o lethal orce,strikes should be acknowledged as soon as possible afer the circum-stances requiring secrecy have passed.

■ Te de ault rule should be prompt acknowledgment, absent extraor-dinarily compelling reasons or continued secrecy, and the burdenshould be on those advocating continued secrecy to demonstrateits necessity, taking into account the numerous costs o continuedsecrecy.

■ Decisions not to acknowledge the use o lethal orce should be re- viewed at least annually to ensure that the use o orce does notremain classied out o habit rather than necessity.

• Regardless o whether any particular strike is acknowledged, the president shouldrelease to the public an unclassied version o the interagency report resulting romthe strategic review and cost-benet analysis as outlined in recommendation 1.


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Recommendations

° Te unclassied report should, to the ullest extent possible, release in-ormation on:

■ Te approximate number and general location o targeted UAVstrikes;

■ Te number o individuals known to have been killed;

■ Te organizational affiliations o those individuals;

■ Te number and identities o any civilians known to be killed; and

■ Te approximate number o strikes carried out by the military ver-sus the CIA.

• Te president should order the preparation and public release o a detailed reportexplaining the legal basis under domestic and international law or US conduct otargeted killings. Te report should go beyond speeches by administration offi-cials. Although the task orce respects the need or the executive branch to protectinternal legal advice, the United States should not conduct a long-term killingprogram based on secret rationales.

3. Transfer general responsibility for carrying out lethal UAV strikesfrom the CIA to the military.

• Parallel CIA and military UAV programs are, at best, duplicative and inefficient.At worst, the existence o parallel programs makes oversight more difficult andincreases the risk o error and arbitrariness, since the CIA and military may havedifferent standards or evaluating intelligence and identi ying appropriate targets.

• Te United States should have a single integrated system or carrying out lethaltargeted strikes outside hot battleelds, perhaps utilizing a dedicated, military-led“ usion center” model to ensure that military operators have access to real-timeintelligence in ormation and support. Te CIA should provide the military withintelligence and analysis to aid in targeting decisions, but UAV strikes themselves

should take place under the command and control o the military.• While rare exceptions may be warranted, as a general principle, the military

should be the entity responsible or the use o lethal orce outside the UnitedStates, while the CIA should ocus on intelligence collection and analysis.

4. Develop more robust oversight and accountability mechanisms fortargeted strikes outside of hot battleelds.

• While internal executive branch reviews and reports are important, public andinternational concerns about targeted strikes will not be alleviated ully through

such mechanisms.° Te task orce recommends that the president, by executive order, create

a nonpartisan independent commission to review lethal UAV policy.


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Te commission might be modeled afer the Presidential IntelligenceAdvisory Board, the Robb-Silberman Commission on Iraq WMD, thePrivacy and Civil Liberties Oversight Board, or similar commissions.

° Members o this independent commission should be selected with a view to ensuring credibility and diversity o background.

■ Members should be respected individuals with experience in themilitary community, the intelligence community, the diplomaticcommunity, the legal community and the human rights commu-nity, along with regional experts and retired policymakers andlegislators.

° Te commission should not be directly involved in the pre-strike ap-proval process. It should instead be tasked with:■ Reviewing the overall policy and approval process or the use o

lethal UAV strikes (both military and CIA) to ensure compliancewith the law and with American values and our national commit-ment to upholding and promoting the rule o law;

■ Reviewing particular past lethal strikes and targeting decisions,selected at the commission’s discretion, to assess their con ormitywith existing US law, policy and process, their effectiveness, any

drones task force report

Documents