How to Improve Drone Strike Policy

October 2, 2014

The initial salvos in Syria against the Islamic State last week included missiles fired from overhead drones by operators who were hundreds or even thousands of miles away. This method of warfighting has gone from inception—with the first use of armed drones just over 10 years ago—to being an integral component of the United States’ arsenal.

Meanwhile, the high level of secrecy around drone strike operations together with instances of civilian casualties, such as notorious strikes on wedding parties, have resulted in mounting calls for the U.S. to bolster transparency, accountability, and other aspects of legitimacy in its drone strike practices. However, the Department of Defense and the Obama Administration have been slow to make changes to U.S. drone strike policy, perhaps out of a recognition that such changes could have unintended consequences resulting in the strikes being a less effective tool.

Drone strikes are one of few options the U.S. has for preventing terrorist suspects from carrying out attacks that do not require U.S. forces in combat. Sending forces into combat is costly to the U.S., dangerous for those forces, and can carry a substantial political investment that might preclude withdrawing until victory has been declared. Drone strikes, on the other hand, can be conducted without a U.S. ground presence, and in highly inaccessible areas such as remote mountain ranges. The strikes can be carried out covertly—i.e., without being acknowledged by the government—which can lead to greater political, diplomatic, and even operational flexibility.

And yet, calls for changes to U.S. drone strike policy are growing. I recently put forth an explicit framework for a cost/benefit analysis of potential drone strike policy changes in The Future of Drone Strikes: A Framework for Analyzing Policy Options. The report weighs the impacts of a policy change on the legitimacy of U.S. practices against potential operational impacts. The most significant issues surrounding the legitimacy of the U.S. drone program include concerns around transparency, accountability, ethics, and the precedent for drone usage, as well as questions of legality under international law.

This past summer’s fighting between Israel and Hamas illustrates the tension that can exist between transparency and legality on the one hand and operational effectiveness on the other. Under international law, countries avoid shelling schools, hospitals and places of worship during conflicts. Knowing this, Hamas used such locations to operate out of and store weapons. In particular, Hamas reportedly used a hospital as a “de facto headquarters” and went so far as to hide weapons in two UN schools. This shows how opponents can exploit knowledge of specific military procedures for operational advantage. Israel flipped this balance when it eventually began bombing those sites, leading to international outcries. Ultimately, Israel traded its perceived legitimacy by some in the international community for increased operational effectiveness in that conflict.

These types of outcomes are considered in the cost/benefit analysis framework, which is illustrated in the report through its application to several drone strike policy proposals from the public sphere that may be the most viable and capable of bolstering U.S. legitimacy. The proposals include options for releasing additional information about the targeting process or individuals who were targeted and killed, as well as the option of standing up a “drone court” to oversee strikes, as put forth by several members of Congress (among others).

Each of these options could increase U.S. legitimacy in various ways. However, they might decrease operational effectiveness, as was the case before Israel began targeting Hamas sites discussed above. In particular, the options might allow terrorists to avoid being targeted by giving them increased knowledge of U.S. tactics, techniques and procedures, or by requiring that additional criteria be satisfied for strike approval. The type of drone court often proposed—one modeled after the FISA court (which approves, for example, the FBI or NSA to collect electronic communications)—would bolster relatively few aspects of U.S. legitimacy and, in addition to potential operational risks, would raise significant practical and legal questions. However, a drone court that reviews strikes after the fact—potentially modeled after a system used in Israel—could enhance numerous aspects of the legitimacy of American operations, and the practical questions it raises appear to be far more manageable.

In May of 2013, President Obama announced that a preference would be instituted for drone strike operations to be carried out by the military, rather than other government agencies. The report considers this policy change as well. (Congress acted to block this policy and, as a result, it is not clear to what extent it has been implemented.) The analysis of this “military preference” highlights questions about the details of the policy that have not been publicly addressed and brings out some commonly misconstrued subtleties regarding the military, covert actions, and Title 50 of the U.S. Code. The policy could boost U.S. legitimacy in a number of ways, but may also have significant operational impacts. It may affect operations even indirectly, such as through changes to Congressional oversight, with more strikes being overseen by the Congressional Armed Services Committees and fewer by the Intelligence Committees, although how this would impact operations may be clear only to those who work closely with or are on the Committees.

There is no “silver bullet” that will preserve operational effectiveness while satisfying public pressure for increased legitimacy. Nonetheless, operational effects must be considered explicitly in any serious efforts to increase the legitimacy of the U.S. counterterrorism campaign.

 

Diane Vavrichek, PhD, is a Research Analyst at the CNA Corporation. She is currently the CNA Representative to Carrier Strike Group One, deployed aboard the USS Carl Vinson. This article presents her opinion and does not necessarily reflect the views of CNA Corporation.