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(Photo illustration by Foreign Affairs. Image courtesy Reuters)
Concerns abound about the secretive nature of U.S. drone programs. Even among those who support the use of unmanned aerial vehicles in counterterrorism efforts, there are frequent calls for more transparency, greater accountability, and better oversight. Seldom, though, have commentators distinguished between these seemingly interchangeable words or described what any of them would look like in practice. In fact, increasing transparency is not the only path to accountability. The United States should instead aim for better oversight, modeling a review process on the United Kingdom's Independent Reviewer of Terrorism Legislation. Doing so would be consistent with democratic ideals as well as with U.S. foreign policy objectives.
First, imagine that the government opted for full transparency in its drone programs. That would certainly make the government more accountable, with no special oversight system needed. Officials would release all the necessary information for citizens to assess the ethics of the programs themselves. This would include answers to such questions as: What crimes have targeted individuals allegedly committed? What threats do they pose? Who else might be harmed in a drone attack? How feasible are non-lethal options such as capture? In practice, though, full transparency is neither morally nor strategically ideal. For one, the government has a duty to protect its civilian informants, so there is risk in revealing the government's sources of information. And potential targets could adjust their behaviors were capture proposals to be debated openly. That would make it all the more difficult for the government to use non-lethal options to round up suspects.
So how much transparency is enough? How can citizens know that the state is not overselling the sensitivity of details that it chooses to withhold? This central dilemma has not been resolved. Well-intentioned legal efforts undertaken by the ACLU and others to force openness about the drone program have only led the government to dig in its heels. It refuses to formally declassify even widely known facets of its operations, let alone release new details. The refusal is absurd on the surface, but it fits into an understandable strategy. Washington does not believe that limited declassifications would appease drone skeptics. As Jack Goldsmith, the Harvard law professor, has explained, Washington fears a slippery slope toward full transparency in the courts that might render one of its most potent counterterrorism weapons unusable.
Presumably to overcome the transparency tug of war, Congress was granted an oversight role in the drone program roughly two years ago. A number of elected representatives with access to sensitive information have thus been making judgments on behalf of the public regarding drones' morality and effectiveness. But that does not seem to have satisfied anyone. Members of Congress are not ideal guardians: the public might (rightly) believe that representatives would hesitate to speak out about irresponsible drone use because they fear being accused of weakness on terrorism or because they have other political reasons for silence. A collective lack of expertise and busy schedules might also hinder members of Congress in making judgments.
At least one other country faced with a similar dilemma, though, has arrived at a different solution. The United Kingdom struggled with terrorism well before 9/11. Over the years, its government has had to develop a way to demonstrate to citizens that it is not abusing counterterrorism powers. The answer is simply an appointed individual who has both legal expertise and a reputation for principled behavior and political impartiality. The independent reviewer of terrorism legislation, or "wise old man," as Benjamin Wittes and Paul Rosenzweig at Lawfare have dubbed the figure, is paid at a daily rate and is not financially dependent on the state. In preparing reports for Parliament and the public about his opinions -- sometimes critical -- the reviewer is allowed access to any classified information he desires. But he is expected to keep the information secret. If the government impedes the reviewer's access to information, he can raise a red flag. And if the government appoints a shill to the position, the credibility of the whole system evaporates. At election time, citizens can reward or punish their political leaders based on the reviewer's pattern of assessments.
The independent reviewer model is palatable to governments because it enables accountability without necessarily increasing transparency (although greater transparency seems to have been a positive side effect in Britain). And the model has been successful enough that Australia has implemented it as well.
The United States can feasibly adopt the British model for its targeted killing programs. Drone warfare lends itself especially well to thorough monitoring, a fact that has been largely overlooked. The defining characteristic of unmanned aerial vehicles is that pilots execute their missions from a distance. Intermediaries, also out of harm's way, can thus safely be allowed to witness strikes occasionally to ensure that actual operations and decision-making procedures match what they see in the official record. At the very least, intermediaries might review video evidence, as the UN special rapporteur on counterterrorism and human rights recently urged.
If the United States appointed an intermediary, he could confirm or reject official counts of the number of civilians killed in attacks without revealing the government's intelligence on each intended target. That would mitigate the need to choose between largely inconsistent after-the-fact estimates of civilian casualties provided by organizations such as the Bureau of Investigative Journalism and the New America Foundation. If the government's rules for counting civilian deaths are as thoughtless as many suspect them to be, the intermediary would be able to sound the alarm while also indicating whether there is strategic justification for keeping the grim accounting under wraps. Only a government serious about its moral obligations would agree to such an arrangement, and that is part of its value.
The system would also address the American public's concern that the United States unleashes drones against targets too readily, especially as technological improvements continue to lessen the danger that each attack poses to surrounding civilians. An intermediary would watch to ensure that the president and his advisers give weight to alternative options. He would be able to alert the public if the difficulty of non-lethal options were oversold, or if the small risk posed by a target merited no action at all.
Aside from enabling accountability at home, the oversight system could also help with foreign publics and governments. The United States has taken expensive steps in order to avoid perceptions of recklessness abroad: for instance, Georgetown professor David Koplow argues that the Pentagon's recent investments in less-destructive weaponry reflect, in part, a growing emphasis on global perceptions. Washington should thus worry that more than half of respondents in 17 of 20 countries disapprove of U.S. drone strikes, according to a Pew Global survey. An independent oversight program is not going to change minds in Lahore or Karachi, where opposition to drones seems to be driven more by the perceived violation of sovereignty than by indiscriminate killing (there are indications that opposition to drones is actually lower in regions where drone strikes are clustered). Still, because the drone is a salient symbol of American recklessness, oversight might reduce public opposition to U.S. policy in Europe and elsewhere. That would make it easier for foreign leaders to overcome domestic opposition to security cooperation with the United States.
Further, the U.S. counterterrorism chief John Brennan has noted that the administration is "establishing precedents that other nations may follow." But, for now, other countries have no reason to believe that the United States carries out its own targeted killing operations responsibly. Without a credible oversight program, those negative perceptions of U.S. behavior will fill the vacuum, and an anything-goes standard might be the result. U.S. denunciations of other countries' programs could come to ring hollow.
If the United States did adopt an oversight system, those denunciations would carry more weight. So, too, would U.S. pressure on other states to adopt similar systems: just as suspicions grow when countries refuse nuclear inspection, foreign governments that turned down invitations to apply a proven system of oversight to their own drone campaigns would reveal their disregard for humanitarian concerns.
No matter the benefits, U.S. officials would initially be reluctant to modify the way they carry out drone warfare. But the United States has made other major adjustments in recent years. In response to criticism of its treatment of detainees in the Bagram prison complex, Washington decided to reform the detainment system. In 2010, the government invited Human Rights Watch and other organizations to observe a reconstructed review process for detainees at Bagram, demonstrating a willingness to make changes and, additionally, communicate them.
The United States would, of course, need to make a few modifications to the British oversight model. The role of a few U.S. legal experts in quietly bending the definition of torture for the Bush administration is likely still fresh in skeptics' minds. A system that uses a permanent reviewer, or one appointed for the full term of the presidency, would similarly allow a single individual's opinions to carry too much weight. Limiting terms to two years might be one safeguard. It would contain damage done by overly permissive decisions. Frequent turnover would also allow for multiple eyes on the same campaign: each reviewer would need to worry about appearing too lax or too restrictive compared to his successors. A second deviation from the British model would involve the identity of the reviewer. As in that model, any effective appointee would need expertise in international law, a long track record of taking principled positions both for and against government, and no strong partisan ties. But given the benefits to the United States of oversight that is convincing abroad as well as at home, individuals with experience working for human rights organizations overseas would be the most credible and thus most valuable intermediaries.
It has become fashionable for commentators to restate well-understood fears about drone warfare while avoiding a less glamorous kind of discussion about feasible safeguards. Few have focused on the problem of designing an oversight institution that will work, that the government will accept, and that the public will trust. If such oversight can be implemented, drones could turn out to be a positive development for international humanitarian law -- not simply because they improve discrimination in targeting but because they are especially amenable to the kind of monitoring that can help citizens decide whether or not governments are serious about their ethical obligations.