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February 9, 2016

Newest Drone Report Makes Recommendations on Military/CIA Control, Exports, FAA Rules

A group led by a former top general and high-ranking Defense Department official has produced a sweeping new report on the use of drones, making recommendations from who should be in charge of drone strikes overseas to what the Federal Aviation Administration should do to integrate unarmed drones over U.S. soil.

The Henry L. Stimson Center report — steered by the former Commander of Central Command, Gen. John P. Abizaid, and Rosa Brooks, former counselor to the undersecretary of Defense for policy — is due for official release Wednesday morning at the National Press Club.

Although the report treads on some of the same ground as a recent Council on Foreign Relations report and has some of the same recommendations, such as increased U.S. transparency and consideration of revisiting drone export controls, it is broader in scope. It also comes days after the release of a legal memo on the targeted killing by drone of a U.S. citizen, Yemeni cleric and al-Qaida in the Arabian Peninsula figure Anwar al-Awlaki.

Other key report recommendations for policymakers include shifting control of drone strikes from a shared Central Intelligence Agency/military responsibility to a military one (harder than it sounds), as well as conducting a cost-benefit analysis of how much drone strikes help take out terrorists compared to how much they hurt international opinion of the United States. Although the report isn’t focused much on the domestic drone component, it does recommend that the FAA speed up the process of integrating drones — also known as unmanned aerial vehicles or UAVs — into U.S. airspace as a boon for the United States remaining at the forefront of drone development.

Some passages of note from the 81-page report, first on how U.S. use of drones is perceived, and how it could backfire:

From the perspective of many around the world, the United States currently appears to claim, in effect, the legal right to kill any person it determines is a member of al-Qaida or its associated forces, in any state on Earth, at any time, based on secret criteria and secret evidence, evaluated in a secret process by unknown and largely anonymous individuals — with no public disclosure of which organizations are considered “associated forces” (or how combatant status is determined, how the United States defines “participation in hostilities”), no means for anyone outside that secret process to raise questions about the criteria or validity of the evidence, and no means for anyone out- side that process to identify or remedy mistakes or abuses…

Imagine, for instance, if Russia began to use UAV strikes to kill individuals opposed to its annexation of Crimea and its growing influence in Eastern Ukraine. Even if the United States strongly believed those targeted by Russian were all nonviolent political activists lawfully expressing their opinions, Russia could easily take a page out of the United States’ book and assert that the targeted individuals were members of anti-Russian terrorist groups with which Russia is in an armed conflict. Pressed for evidence, Russia could simply repeat the words used by US officials defending US targeted killings, asserting that it could not provide any evidence without disclosing sources and methods and creating a risk that terrorists would go underground. In such circumstances, how could the United States credibly condemn Russian targeted killings?

On how the executive branch should become transparent:

The president should order the preparation and public release of a detailed report explaining the legal basis under domestic and international law for US conduct of targeted killings. The report should go beyond speeches by administration officials. Although the task force respects the need for the executive branch to protect internal legal advice, the United States should not conduct a long-term killing program based on secret rationales.

On congressional oversight:

…while covert action undertaken by the CIA requires a presidential finding and notification — even if after the fact — of the congressional intelligence committees, secret, unacknowledged strikes carried out by the US military need not be reported to the intelligence committees, as the military reports instead to the House and Senate Armed Services committees. At best, this fragmented oversight system creates confusion and a danger that critical issues may slip through the crack…

This fragmented oversight system is particularly problematic given that, in practice, the military and CIA generally work together quite closely when planning and engaging in targeted UAV strikes: few strikes are “all military” or “all CIA.” The differing CIA and military reporting requirements create a risk of executive branch “forum shopping,” tempting the executive branch to place a given targeted strike under the direction and control of whichever entity is deemed to have the most accommodating committee members.

And on how drone usage compares to some early outrage over the use of other weapons:

In the Middle Ages, for instance, feudal elites feared that the crossbow — which could be used even by minimally trained peasants, and was capable of shooting armor-piercing bolts — would upend the chivalric social order, rendering irrelevant knightly martial skills and suits of armor. Depicted in medieval illuminated manuscripts as a weapon of demons, the crossbow was banned by Pope Urban in 1096. It proved too temptingly useful a weapon to ignore, however; by 1139, the Second Lateran Council of Pope Innocent II “prohibit[ed] under anathema that murderous art of crossbowmen and archers, which is hateful to God”— but only when “employed against Christians and Catholics.” Eventually, crossbows were deemed acceptable for use in “just” wars.

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