Ethics and impact of drone strikes — "Intelligence Matters"

This week on "Intelligence Matters," host Michael Morell talks with Georgetown law professor Mitt Regan about his new book "Drone Strike: Analyzing the Impacts of Targeted Killing." They discuss the effect of drone strikes on al-Qaeda's continuation and growth, the lack of systematic civilian casualty mitigation efforts and the ethics of drone strikes outside of a war zone. 

HIGHLIGHTS: 

• Drone strikes didn't affect growth of al Qaeda: "The research indicates, first of all, that strikes against al-Qaeda leaders generally had no impact on the continuation and growth of al-Qaeda or on the number of strikes that the al-Qaeda network conducted. In other words, it didn't defeat al-Qaeda in any way. That may have been, at least implicitly, the U.S. hope when strikes began, but that certainly hasn't happened. In fact, al-Qaeda has more fighters today than it did before 9/11."
• Drone strikes and civilian deaths: "While the civilian casualty rate has declined overall, which I think refutes the notion that strikes, some people claim, kill as many civilians as they do militants, that's simply not true. At the same time, the U.S. does hold to the standard of near-certainty of no civilian casualties. And there are those who point out that at least with respect to military strikes and probably those by the CIA, there really isn't a systematic civilian casualty mitigation effort. The Pentagon is in the process of putting together a plan like that."
• Ethics of drone strikes outside war zone: "I think that they are ethical when they're used within fairly stringent guidelines outside of war zones. And I think the presidential policy guidance more or less gets it right, that is to examine whether capture is feasible of a target. If it's not. Try to do your best to ensure that there's near certainty of no civilian casualties. And in some instances, a strike will result in fewer lives lost than, say, a military operation, for instance.  Now, you also have to compare it not just with military operations, but with other kinds of counterterrorism measures that might be non-kinetic."

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INTELLIGENCE MATTERS WITH MITT REGAN 

PRODUCER: PAULINA SMOLINSKI

MICHAEL MORELL: It's great to have you on the show to talk about your new book, Drone Strike: Analyzing the Impacts of Targeted Killing. It's a great time to discuss your book, in the aftermath here of the targeted killing of the emir of al-Qaeda, Ayman al-Zawahiri. So the timing couldn't be better. 

MITT REGAN: Thank you for arranging it.

MICHAEL MORELL:  So let's jump right in. What do you do in the book and why did you write it?

MITT REGAN: What I do in the book is examine the fairly considerable amount of research of the impacts of the U.S. targeting campaign outside war zones, which is to say mainly in Pakistan, Somalia, and Yemen on terrorist groups. That is, how effective have strikes been in weakening those groups on civilian casualties, which has been a topic of considerable conversation in all local populations, particularly local population attitudes. And I was drawn to this because, as I'm sure you know, in the debate, people on both sides often make essentially factual claims about the impacts of strikes, but without any sort of reference to the evidence or they sometimes cherry pick the evidence. And so I really wanted to get a sense of what do we actually know? What's our best understanding based on the most rigorous research of what the impact of these strikes have been? They've been very controversial in some quarters, but do we really know what's been going on? So that's what motivated me to do the book.

MICHAEL MORELL: Yeah, that's terrific. Before we get to the conclusions that you were able to draw from looking at all the studies, let me just ask some basic questions here about targeted killings via drones. What's the legal basis for targeted killings outside of a war zone? And do you find that legal basis compelling?

MITT REGAN: Well, the U.S. position is that it's in an armed conflict with al-Qaeda, which means that the law of armed conflict, or sometimes known as international humanitarian law, applies wherever there is a al-Qaeda member involved in participating in that conflict. That has gotten some criticism in the international community on the ground that that may be true in places where there were active theaters of combat, such as Afghanistan or Iraq. But to apply that logic essentially to anywhere in the world that an al-Qaeda target might be located would be too expansive. It would expand the law of war to areas that, for the most part, are peaceful. The U.S. continues to take the position that outside war zones, it has the authority to proceed under the law of armed conflict. 

But in 2013, the Obama administration issued what are called presidential policy guidance standards that says outside areas of active hostilities, is determined in that document. We will undertake a strike only when capture is not feasible and most relevant to the conversation when civilian casualties, there's near certainty of no civilian casualties. Now, that contrasts with the law of war, which says that you can unintentionally cause civilian casualties as long as they're not excessive in relation to the military advantage that you expect. So the standard has been since May 2013 and perhaps even before then that the U.S. will only undertake strikes under those conditions. And to the surprise of some, the Trump administration, while it relaxed some of those standards, preserved that requirement that capture be infeasible and there be near certainty of no civilian casualties. So as a policy matter, not as a matter of law, you know, for the last roughly nine years, the U.S. has taken a more restrictive view of the conditions under which it will conduct strikes outside areas of active conflict, then the law otherwise permits.

MICHAEL MORELL:  So how do you think about the legal basis of the killing of Qassem Soleimani by the Trump administration? Does it fit the legal basis you just talked about, or was that in your view, outside of it?

MITT REGAN: I have to say, I think it was outside of it. First of all, I think the best view is that we're not in an armed conflict with Iran. There are some theories that suggest that the back and forth that led up to it constituted an armed conflict that basically allowed the U.S. to treat Soleimani as an armed combatant. I think that's a difficult argument to make. And if that's not the basis, then the basis has to be the U.S. was acting in self-defense to prevent a material threat from materializing. And the evidence, at least that's been released thus far, doesn't suggest there was an imminent threat to the U.S.. In other words, this was what the military would call a few steps left of bang, so to speak. We can think of imminence as maybe that final step before bang. This is a few steps before that. So that has been controversial, at least among legal scholars.

MICHAEL MORELL: The Obama administration targeted some American citizens. Can you talk about the legal basis for that?

MITT REGAN: The Supreme Court has said that U.S. citizens who essentially allied themselves with a U.S. enemy can be considered combatants. And therefore can be subject to targeting, to the use of lethal force. The Obama administration took the position that notwithstanding that there are certain constitutional requirements that have to be met under due process. And its conclusion was that if there is a high level official that has determined that someone, a U.S. citizen, and then Awlaki, of course, is a paradigmatic case. Is someone who is operational in planning attacks and that it's necessary to conduct an attack that that, in a sense, satisfies the due process considerations.

MICHAEL MORELL: Let's dig into the conclusions that you were able to to walk away with from digging into all of these studies. Let's start with their effectiveness, their efficacy. And as you do so, as you talk about that, perhaps you could talk about it from the point of view of the fight against al-Qaeda. I know it's larger than that, but I think that that provides an important reference point. And before you talk about efficacy, can you talk a bit about the history of the use of drones against al-Qaeda?

MITT REGAN: Yes. The first strike outside a war zone against al-Qaeda was in 2002 against al-Harazi, who was a member of al-Qaeda in the Arabian Peninsula, believed to be implicated in the attack on the USS Cole in the year 2000.

MICHAEL MORELL: And that was in Yemen, correct?

MITT REGAN: And that was in Yemen. Right, Exactly. So strikes continued through the Bush administration, but at a fairly low level. Meanwhile, what's called al-Qaeda core, that is the top leadership had more or less reconstituted itself in the federally administered tribal areas in Afghanistan. And there were several attacks coordinated by al-Qaeda core after 9/11. And there were some significant plots that were thwarted that were coordinated by al-Qaeda core. And so the belief was that it was necessary to ramp up strikes in the tribal areas to try to weaken al-Qaeda core and prevent it from coordinating those kinds of attacks. And so in 2008 was really when strikes accelerated considerably, particularly in the tribal areas, although they were being conducted elsewhere. And for the next roughly four, five years, there was a fairly intensive campaign there.

MICHAEL MORELL: So that was right at the end of the Bush administration and then through the first term of the Obama administration, essentially.

MITT REGAN: Exactly. Exactly. And then at the end of that period, 2013 was when the Obama administration put in place those guidelines that I mentioned earlier, that restrict operations more than the law of war would permit.

MICHAEL MORELL: And then what's happened to strikes since 2013 and in number and location?

MITT REGAN: They tapered off in the tribal areas in Pakistan after roughly 2013. They then picked up in Yemen. And in 2012, they were part of supporting a Yemeni army military effort in the south against AQAP. They recently picked up again when the United Arab Emirates joined the fight in 2017, 2018, in support of those operations. So in Yemen, the result has been both the combination of strikes and the broader military campaign have weakened AQAP. In Somalia they picked up in the late teens. And recently President Biden authorized strikes against a number of al-Shabaab leaders in that country. So I would say strikes up to the present day have tapered off a fair amount. But I know the administration is watching to see what happens in Afghanistan.

MICHAEL MORELL: What conclusions can we draw about the effectiveness of these strikes?

MITT REGAN: The research indicates, first of all, that strikes against al-Qaeda leaders generally had no impact on the continuation and growth of al-Qaeda or on the number of strikes that the al-Qaeda network conducted. In other words, it didn't defeat al-Qaeda in any way. That may have been, at least implicitly, the U.S. hope when strikes began, but that certainly hasn't happened. In fact, al-Qaeda has more fighters today than it did before 9/11. And this is consistent with research, other research I mentioned in the book about targeting mature terrorist organizations. They've got in place systems, routines, procedures that can make them pretty resilient to these sorts of strikes. So not really any impact on al-Qaeda as a whole.

MICHAEL MORELL: And this is al-Qaeda globally you're talking about.

MITT REGAN: This is al Qaeda global

MICHAEL MORELL:  Got it.

MITT REGAN: However, I think there is reason to believe that the strikes in the tribal areas that I mentioned over that period of time, 2008, roughly to 2012, likely contributed to reducing the threat of attacks on the U.S. And this is because al-Qaeda core consistently throughout the life of the al-Qaeda organization has been focused on and has given priority to attacking the West, particularly the U.S. The belief is that in order to establish Sharia law in the Islamic world, al-Qaeda first needs to eliminate U.S. involvement that supports regimes that al-Qaeda regards as heretical. So if you look at the correspondence of bin Laden, for instance, that's part of the collection at West Point that was captured during the Abbottabad raid. It's replete with references about giving priority to what's called the far enemy. And Zawahiri continued that after bin Laden's death. 

So what we have in 2008 is a core group in the tribal areas that has as its priority attacking the West and the United States. It has a safe haven in the tribal areas where it can train people to conduct those operations, and it can plan and coordinate those operations. And that's what led the Obama administration to ramp up strikes in 2008. The evidence suggests there aren't quantitative studies that precisely address this. But there is considerable evidence in the al-Qaeda correspondence that these strikes took from the organization, important leaders who were difficult to replace and that it severely limited communication and mobility of leaders with the rest of the network. And it's striking that since 2013, there have been no plots at all attributed to al-Qaeda core. Certainly no successful attacks, no major attacks since London 2005, but not even any attempted attacks. That's not to say that other elements of al-Qaeda haven't been active, but those elements, by and large, with some exceptions, focus on local matters. So causing al-Qaeda to evacuate the tribal areas, I think contributed to a decline in the risk to the U.S. Now, I should say, I think probably the most significant factor responsible for that decline was the way that the U.S. hardened its counterterrorism defenses since 9/11. The intelligence sharing that's occurred, the disruption of terrorist financing, the watch list, a whole range of things. I think most people believe is primarily responsible. But I do believe that those strikes did have the effect of contributing to that decline.

MICHAEL MORELL:  Did you come to the same conclusion about strikes against AQAP in Yemen and strikes against al-Shabaab in Somalia? Or was that a different outcome?

MITT REGAN: That is a little more ambiguous, partly because in Yemen, you have a somewhat different kind of use of strikes, basically for air support and military operations. So they helped, I think, but in combination with some pretty substantial military operations. So it wasn't the sort of case you had in the tribal areas where for the most part you had strikes as the main instrument. You did have assistance from Pakistan with intelligence sharing and some periodic law enforcement and military operations. But it was mainly strikes that were the instrument. In Yemen, you've got strikes as one asset among several in Somalia. I think at this point, it's probably fair to say that strikes haven't had a significant effect. Somalia is now regarded, as you probably know, as the most significant al-Qaeda affiliate. There was someone indicted about a year and a half ago who had taken flight lessons in the Philippines in preparation for conducting a 9/11 attack in the U.S. who was a member of  al-Shabaab. And so there I think that the impact has been much less significant.

MICHAEL MORELL: What about civilian casualties? Lots of debate on this.

MITT REGAN: Lots of debate on this. The U.S. I think it's fair to say in the early years of the program, really up through 2012, did not perform especially well with respect to civilian casualties. I believe that the 2013 presidential guidance that I mentioned, however, in combination likely with improvements in targeting procedures, has reduced casualties significantly. So let me give you some numbers. New America estimates that from 2002 to 2012 the percentage of civilians among the casualties was about 11%. From 2013 to 2020 it's about 3%, a little over 3%. Similarly, the Bureau of Investigative Journalism estimates that 2002 to 2012 it was about 23%. That declines from 2013 to 2020 to a little over 4%. And in recent years, the percentage of casualties has dropped even further. 

Not to say that mistakes don't happen. We know from the strike in Kabul in August of last year that that can happen. At the same time, while the civilian casualty rate has declined overall, which I think refutes the notion that strikes, some people claim kill as many civilians as they do militants, that's simply not true. At the same time, the U.S. does hold to the standard of near-certainty of no civilian casualties. And there are those who point out that at least with respect to military strikes and probably those by the CIA, there really isn't a systematic civilian casualty mitigation effort. The Pentagon is in the process of putting together a plan like that. But there's a lot of literature that suggests that what you need to do, first of all, is make sure you get good data on what happens. 

Now, because strikes often occur in remote areas where the U.S. doesn't have ground assets. The battle damage assessment afterword that, among other things, tries to assess civilian casualties is going to be limited to video assets. And there are limitations to that. There are, however, local groups, there are NGOs on the ground who have access to information. And I think it's fair to say that over the years, the U.S. has not engaged with those groups as well as it could to try to complement the sources of information that it gets. And so you see these periodic stories about the U.S. claiming that there were no casualties in a strike and then on the ground investigation establishing that, in fact, there were. 

So I think more recently, I think Secretary Austin has emphasized the importance of all engaging with those groups to get as much information as possible. But then once you get that, ideally what you do is you aggregate that and then you begin to look for root causes. And there are patterns. There are various kinds of things that occur that are more likely to lead to civilian casualties than others. And then ideally, you disseminate that across the government, at least to those agencies that are involved in kinetic operations. And then you feed that into operations so that you revise those in ways that reduce casualties. This has happened in some theaters periodically. It happened with counterinsurgency in Afghanistan, where General McChrystal issued a tactical directive and which was later modified somewhat by General Petraeus. So there have been periodic instances where the U.S. has really focused on civilian casualties, and it's demonstrated that it can reduce them. But there hasn't been a systematic, ongoing, consistent focus on this. And unfortunately, what that does is leave the U.S. open to criticism that it's not satisfying its own standard with respect to civilian casualties.

MICHAEL MORELL: How do we square, you referenced this earlier, administrations claiming very low civilian casualties. You remember the speech that John Brennan gave when he was at the White House. Is that politics? Is that not knowing? How do you square what you found with what administrations have said publicly?

MITT REGAN: That's a very good question, Michael. I think the U.S. is very defensive and very sensitive about this. Yet in some sense it is a victim of its own narrative, because on the one hand, it has emphasized how surgical and precise these strikes are. And so the imagery you get is of a sniper who can kill someone sitting in a cafe without harming the person next to them. Drone strikes aren't quite like that. So that defensiveness, I think for many years, meant that rather than engage with local groups and NGOs, there was an adversarial posture there. And I think in addition, however, I think it's fair to say, going back to what I mentioned earlier, the assets that are used to try to assess civilian casualties have their limitations. They're often aerial assets only. They're often, for various reasons, it's not feasible to visit the site of a strike. And investigations by groups that have actually gone to the side examine the ordnance, interviewed people. They provide a much richer picture. I think it actually would be healthy for the U.S. to acknowledge that sometimes civilian casualties will happen. That it is not a completely perfect sort of operation, but it's doing its best  to minimize those.

MICHAEL MORELL: I wonder to what extent you might have detected any bias on the part of the organizations that do these investigations. Are they going in with any bias at all, do you think?

MITT REGAN: That's also a good question. I think they do good work in interviewing people and reviewing the site and the ordinances, as I mentioned. One interesting dynamic is that there is a tendency more generally with military operations, not just with drone strikes, to focus on civilian casualties as if any civilian casualties is a violation of law. And at least in theaters of combat where the law of war applies, there can be unintended civilian casualties as long as they're not excessive in relation to the military advantage that's anticipated. 

What I think is happening to some extent is that there is maybe emerging this informal norm that is different from the law. In other words, the expectation for many groups now and for some in the international community is that modern, technologically sophisticated military forces that have the ability to drive civilian casualties down as low as they can are not meeting their obligation if all they do is make sure that civilian casualties are not excessive. And I think that's a product I suspect of many things. But the 24/7 news cycle, the availability of video, social media. You see with the war in Ukraine, you know, civilian casualties are vividly brought into our living rooms. 

There's a sense in which the Pentagon and the international community are sort of talking past one another. The Pentagon rightly says, we pride ourselves on adhering to the law of war. And the law of war says that casualties can occur as long as they're not excessive. But then there's this other expectation that's more demanding. I think that's probably why it's taken a while for the Pentagon to prepare its civilian casualty plan, because I suspect there's a debate going on in the Pentagon right now about that.

MICHAEL MORELL: What about the impact on the local populations and their views about the United States, their possible support to terrorist groups that we're targeting? Can you talk about that?

MITT REGAN: Yes. One of the things we often hear is that for every militant a drone strike kills, it creates two more because of resentment of the U.S. It's important to parse what the evidence establishes carefully here. On the one hand, it is pretty clear that strikes are resented by large numbers of the population in locations where they occur. There is some resentment of the U.S., which unfortunately can be counterproductive if the U.S. is trying to support a local partner or a government in a fragile state. That resentment can also then undermine the legitimacy of that government. That's a cost. 

At the same time, the evidence does not establish that people are radicalized in these areas by strikes. The truth seems to be that they don't like the strikes and they don't like that the militants, the terrorist groups. They certainly, while they may resent U.S. operations, they also resent the way in which militants control their lives, undermine local authority figures and so forth. I think that this resentment of strikes more generally, even though they don't radicalize the population, is something that needs to be taken into account given situations when we're weighing costs and benefits.That raises the question, well, are there other counterterrorism measures that might be effective that wouldn't have that impact?

MICHAEL MORELL: When you take all of this in, everything that you were able to conclude from looking at all of these studies, where do you end up on the ethics of the use of drones for targeted killings outside of a war zone?

MITT REGAN: I think that they are ethical when they're used within fairly stringent guidelines outside of war zones. And I think the presidential policy guidance more or less gets it right, that is to examine whether capture is feasible of a target. If it's not. Try to do your best to ensure that there's near certainty of no civilian casualties. And in some instances, a strike will result in fewer lives lost than, say, a military operation, for instance.  Now, you also have to compare it not just with military operations, but with other kinds of counterterrorism measures that might be non-kinetic. But I do believe that I mean, if you look at the strike against Zawahiri, there were apparently considerable steps taken to try to minimize any sort of harm to anyone nearby. There was a smaller Hellfire missile that was used. 

The challenge here is really one that's existed since 9/11, and that is how do you deal with a group that has the avowed intention of attacking the U.S. and prevent it from acquiring the capability to do so. Particularly if it's able to operate in a safe haven somewhere. And this sort of goes back to what I was saying about al-Qaeda core and the Zawahiri strike. I think were Zawahiri located in Yemen or Somalia, I'm not sure that his death would have contributed much to making the U.S. safer. The fact that he's in Afghanistan, however, I think is meant to send a signal to the Taliban that the U.S. will not accept the Taliban permitting al-Qaeda to establish another safe haven. And as I said earlier, the prospect of al-Qaeda core for establishing a safe haven because of its avowed intention to attack the U.S. would marry intention and capability in a way that could be troublesome. On balance, I think it can be ethical if used wisely and other alternatives are considered.

MICHAEL MORELL: I assume you would agree that the more transparency here, the better. That it's important for the United States to say why we think we need to do this. It's important for us to say what we've done. It's important for us to put the civilian casualty figures out there. It's important for us to talk about how we're trying to minimize them. I assume you would agree with all that.

MITT REGAN: I certainly do, Michael. I really do. And as you know, certainly much better than I, there's always a concern about compromising sources and methods when you do that. But I as transparent as the U.S. could be, I think would be would be important to provide as much evidence as possible about why the U.S. came to a conclusion that a particular target posed a threat. To be as transparent as possible about the effects of the strike, including civilian casualties and what steps were taken to minimize them. I think that's important. And I have to say, I think the Obama administration in particular was quite admirable in that it also published guidelines that indicated the bases for its use of force, not only with strikes, but in operations in other areas as well. And I think to the extent that that can continue, the United States, first of all, I think it's the right thing to do in a democratic country. But I think also the United States would likely be able to gain more legitimacy and support, not only domestically but internationally.

MICHAEL MORELL: It was President Obama's view back in 2013 when we were putting that document together that you talked about, that targeted killings was something the United States was going to have to do for some period of time. And in order to do that, we needed domestic support and we needed at least international acquiescence and the way to get both of those is to be as transparent as possible.

MITT REGAN: Yes, I think that's exactly right.

MICHAEL MORELL: If you were the the legal adviser to the National Security Council or you were the attorney general and you were sitting around the Situation Room table and there was a discussion of a targeted killing, what are the two or three points that you would make to the team about what you would want them to think about before they made a decision?

MITT REGAN: I would want to think about, how are you going to explain to the public the need to conduct a strike against this person. In what way is this person posing a threat to the United States? What's the nature of the operations that they're engaged in? What do we have on that? To the extent that we can, we might be able to disclose it. In other words, I would begin to think about how you're going to justify it after the strike. Frankly, are there other measures that might be feasible to limit the threat in a way that would not be, that are non-kinetic. I think also have we taken every possible precaution to ensure that there are going to be no civilian casualties? Near-certainty of no civilian casualties? I think that at the end of the day the U.S. has to accept that it's going to be under the microscope. That's the case with liberal democracies.  I mean, Putin doesn't really have to justify to his population much of anything.  But in a democracy, that's, of course, a strength. I think we believe that's a strength. That's why the U.S. has more allies than China or Russia or Iran. But it has to do its best to live up to those values. 

MICHAEL MORELL: That is a great place to end. The book is Drone Strike: Analyzing the Impacts of Targeted Killing. The author is Mitt Regan. Mitt, thank you so much for joining us.

MITT REGAN: It's been a real pleasure, Michael. Thank you.