Clarity from the White House (Photo: Michael Baird/ Flickr)

Two of the most controversial aspects of the US covert drone campaign – CIA control of strikes in Pakistan, and the use of so-called signature strikes – look set to continue until at least 2014, papers released by the White House indicate.

In the wake of President Obama’s Thursday speech on counter-terrorism policy, White House national security officials have released two key documents. The first, US Policy Standards and Procedures for the Use of Force in Counterterrorism, lays out the standards now being used to decide whether to deploy ‘lethal force’ outside the battlefield.

The White House has also released the transcript of a background briefing for journalists, in which anonymous senior administration officials offer their interpretation of the new guidance.

Between them, the two documents offer significant insights into how the US targeted killing programme is governed.

Related story – Obama frames covert drone war as necessary evil

Officials have also provided the most comprehensive understanding yet of how the US government defines a civilian – or ‘non-combatant’ – in places such as Pakistan and Yemen.

But claims that the US has ended controversial ‘signature strikes’ – and will transfer all covert drones from the CIA to the Pentagon – appear to have been overstated. As one official puts it, ‘you’ll see also a lot of continuity in the way in which we approach these things that are basically being codified in the guidance that’s been issued.’

Rule BookBuilding on President Obama’s counter terrorism speech at National Defense University on Thursday, officials have laid out ‘certain key elements’ of the standards and procedures governing the US targeted killing programme.

Noting that the US has a preference where possible ‘to capture a terrorism suspect’, guidance notes then lay out the circumstances in which a lethal covert drone strike or other form of targeted killing can take place.

All proposed killings outside the conventional battlefield must have a ‘legal basis’; must not be an act of punishment; and must only be used if the target represents ‘a continuing, imminent threat to US persons’, according to the document.

You’ll see also a lot of continuity in the way in which we approach these things that are basically being codified in the guidance that’s been issued.’Senior US administration official

But it goes on to make clear: ‘It is simply not the case that all terrorists pose a continuing, imminent threat to US persons; if a terrorist does not pose such a threat, the United States will not use lethal force.’

In recent months, some senior administration figures including CIA Director John Brennan have pushed for a far looser definition of imminence. That effort appears to have failed.

The White House then presents five rules which it says must now be followed before a targeted killing can take place:

1) Near certainty that the terrorist target is present;

2) Near certainty that non-combatants will not be injured or killed;

3) An assessment that capture is not feasible at the time of the operation;

4) An assessment that the relevant governmental authorities in the country where action is contemplated cannot or will not effectively address the threat to US persons

5) An assessment that no other reasonable alternatives exist to effectively address the threat to US persons.

‘Non-combatants’

In a key move, national security officials also offer an explanation of how civilians – or ‘non-combatants’ – are being defined in the context of targeted killings outside the battlefield.

‘Non-combatants are individuals who may not be made the object of attack under applicable international law,’ the document notes.

‘The term “non-combatant” does not include an individual who is part of a belligerent party to an armed conflict, an individual who is taking a direct part in hostilities, or an individual who is targetable in the exercise of national self defense. Males of military age may be non-combatants; it is not the case that all military-aged males in the vicinity of a target are deemed to be combatants.’

That final point – that military-aged males are not automatically classed as combatants in countries such as Pakistan and Yemen, may mark a major sea-change. A story in the New York Times generated huge controversy in 2012 when it reported that the US ‘counts all military-age males in a strike zone as combatants, according to several administration officials, unless there is explicit intelligence posthumously proving them innocent’.

Non-combatants are individuals who may not be made the object of attack under applicable international law’US Policy Standards and Procedures for the Use of Force in Counterterrorism

The list of rules issued by the White House concludes with an assertion that the US ‘respects’ national sovereignty and international law:

‘Whenever the United States uses force in foreign territories, international legal principles, including respect for sovereignty and the law of armed conflict, impose important constraints on the ability of the United States to act unilaterally – and on the way in which the United States can use force. The United States respects national sovereignty and international law,’ the document notes.

Ben Emmerson QC, the UN investigator currently looking into drone strikes, said he welcomed the Obama administration’s publication of its rule book.

Describing it as ‘a significant step towards increased transparency and accountability,’ he added that ‘it also disposes of a number of myths, including the suggestion that the US is entitled to regard all military-aged males as combatants, and therefore as legitimate targets.’

Background briefingIn advance of President Obama’s major speech, journalists also took part in a background briefing with anonymous senior administration officials on Thursday, which has now been published.

Much of that briefing focused on the proposed closure of Guantanamo, and whether the War on Terror is drawing down. But officials also offered their interpretation of the new targeted killing guidelines.

Claims by some that all US covert drone strikes will pass from the CIA to the Pentagon appear overstated, based on the comments of two officials.

One notes that there is an ‘expressed preference’ for the US military to have the lead in carrying out targeted killings, ‘given their traditional role and given the transparency [that] can be associated with actions by the United States military’. But he added that the US continues to ‘pursue a range of counter-terrorism operations around the world,’ indicating that the CIA might retain a role.

The New York Times has since cited US officials who indicate  that the CIA will not transfer control of drone strikes in Pakistan to the US military until ‘the withdrawal of combat units from Afghanistan at the end of 2014’.

In another exchange with journalists, officials at Thursday’s briefing addressed whether the three US citizens killed in covert drone strikes who had not been intentionally targeted were being classed by the Administration ‘as collateral damage or guilty by association?’

‘There are times when there are individuals who are present at al Qaeda and associated forces facilities, and in that regard they are subject to the lethal action that we take,’ a senior official responded. ‘There are other instances when there are tragic cases of civilian casualties and people that the United States does not in any way intend to target.’

There are times when there are individuals who are present at al Qaeda and associated forces facilities, and in that regard they are subject to the lethal action that we take.’Senior US administration official

Signature strikes

There was further confusion on the question of whether signature strikes have now ended.

An editorial in today’s The New York Times claims that ‘From now on, the Central Intelligence Agency and the military will no longer target individuals or groups of people in countries like Pakistan based merely on the suspicion that their location or actions link them to al Qaeda or other groups allied with the terrorist network.’

Yet when asked, ‘Will signature strikes explicitly be prohibited now?’, an official at the briefing framed his response in the context of the war in Afghanistan, noting the need to ‘take action against forces that are massing to support attacks on our troops and on coalition forces in Afghanistan.’

The official then noted that ‘by the end of 2014, as we wind down the war in Afghanistan, we will not have the same need for force protection and those types of strikes that are designed to protect our forces in Afghanistan. Furthermore, we believe that the core of al Qaeda has been greatly diminished so, therefore, that will reduce the need for unmanned strikes against the core of al Qaeda as well.’

In short, officials appear to be indicating that signature strikes, along with CIA control of strikes inside Pakistan, will remain a reality at least until troops withdraw from Afghanistan next year.

// US Policy Standards and Procedures for the Use of Force in Counterterrorism Operations Outside the United States and Areas of Active Hostilities (PDF)  US Policy Standards and Procedures for the Use of Force in Counterterrorism Operations Outside the United States and Areas of Active Hostilities (Text)

 Barack Obama at a recent meeting of the National Security Council. (Pete Souza/ White House)

Barack Obama has made it clear that the US will continue with its controversial targeted killing programme.

In a major speech the US president also announced that he has signed into force a new – and secret – rule book for lethal action that provides ‘clear guidelines, oversight and accountability’ for covert drone strikes.

Counter-terrorism officials indicated that control of covert drone strikes will progressively pass from the Central Intelligence Agency to the Pentagon.

The rules will also ‘impose the same standard for strikes on foreign enemies now used only for American citizens deemed to be terrorists’.

Related story – White House briefings lay out new drone rulebook – but questions remain

There was some dispute about whether the Presidential Policy Guidance would prevent much-criticised attacks on groups of men based on their patterns of behaviour – so-called ‘signature strikes.’ The New York Times insisted that this was the case. But other major US media were more cautious.

Impassioned defenceSpeaking for an hour in front of an invited audience at the National Defense University in Washington DC, Obama made an impassioned defence of the US targeted killing programme, insisting that it was both effective and legal. But he admitted that this may not be enough:

‘To say a military tactic is legal, or even effective, is not to say it is wise or moral in every instance.  For the same human progress that gives us the technology to strike half a world away also demands the discipline to constrain that power — or risk abusing it,’ he said.

He addressed head-on controversies surrounding civilian casualties. Acknowledging that there was a ‘wide gap’ between US and non-governmental assessments, he bluntly conceded that civilians have died in US strikes. Obama said that for himself and ‘those in my chain of command, these deaths will haunt us as long as we live’.

He declared: ‘before any strike is taken, there must be near-certainty that no civilians will be killed or injured – the highest standard we can set.’

But he also insisted that civilian deaths were sometimes a necessary risk. ‘As Commander-in-Chief, I must weigh these heartbreaking tragedies against the alternatives. To do nothing in the face of terrorist networks would invite far more civilian casualties – not just in our cities at home and facilities abroad, but also in the very places –like Sana’a and Kabul and Mogadishu – where terrorists seek a foothold.’

These deaths will haunt us as long as we live.’President Obama

Bureau estimates indicate that since 2002, at least 2,800 people have died in 420 covert drone strikes in Pakistan, Yemen and Somalia. Of those killed, more than 400 are likely to have been civilians.

Obama has so far carried out seven times more covert drone strikes than his predecessor, George W Bush. However, the number of reported strikes has declined steeply over the past year, along with reported civilian casualties.

‘Boots on the ground’

Insisting that his administration had ‘a strong preference for the detention and prosecution of terrorists’, Obama said there were occasions when only lethal drone strikes would suffice.

At times ‘putting US boots on the ground may trigger a major international crisis’ and inflame local civilian populations, he said. Suspects may also ‘hide in caves and walled compounds’ in areas where there was little or no governance.

But he acknowledged that the use of drones was not without constitutional risk: ‘The very precision of drones strikes, and the necessary secrecy involved in such actions can end up shielding our government from the public scrutiny that a troop deployment invites. It can also lead a President and his team to view drone strikes as a cure-all for terrorism.’

Before any strike is taken, there must be near-certainty that no civilians will be killed or injured – the highest standard we can set.President Obama

President Obama announced that he would work with Congress towards greater oversight of the targeted killing campaign. And he said he would be seeking to ‘refine, and ultimately repeal’ the Authorization to Use Military Force (AUMF) passed by Congress in 2001, which the US asserts is the legal bedrock for its covert drone campaign.

Unlocking GuantanamoThe president also used the speech to challenge Congress to aid him in closing the detention facilities at Guantanamo Bay, calling on members to end the ban on detainee transfers to prisons on the US mainland. ‘I know the politics are hard. But history will cast a harsh judgment on this aspect of our fight against terrorism, and those of us who fail to end it,’ he said, adding that nobody had ever escaped a US supermax jail.

Obama announced the end of a moratorium on transferring detainees to Yemen: instead, transfers will be examined on a case-by-case basis. At least 84 current Guantanamo inmates are Yemeni.

The speech was repeatedly interrupted at one point by Code Pink protester Medea Benjamin. Obama was forced to pause and wait three times for Benjamin to finish comments including references to the death of Anwar al-Awlaki’s 16-year-old son in a drone strike in Yemen. As Benjamin was escorted out, he recovered his poise – joking that he was being forced to depart from his script, but saying she raised ‘tough issues’.

Obama administration admits killing four US citizens 

In a related move, US attorney general Eric Holder released a letter on Wednesday evening admitting that four US citizens had been killed in US drone strikes since 2009. The Bureau’s own data suggests that  seven or more US citizens have been killed in US drone strikes since 2002.

One of those named by the attorney general – Jude Kenan Mohammed – was until now only rumoured to have been killed. The New York Times reports that Mohammed died in a CIA attack in South Waziristan, Pakistan on November 16 2011.

According to an open US indictment dated September 2009, Mohammed ‘departed the United States to travel to Pakistan to engage in violent jihad’. He was also accused of engaging in ‘planning and perpetrating a Federal crime of terrorism against the United States, citizens and residents of the United States, and their property.’

The other three US citizens named by Holder were radical cleric Anwar al-Awlaki and his 16 year old son Abdalrahman al-Awalaki; and Samir Khan, a propagandist for Al Qaeda in the Arabian Peninsula – all killed in Yemen in autumn 2011. According to the attorney general, only Anwar al Awlaki was ‘specifically targeted by the United States’.

In his speech, Obama insisted that it was right to target and kill Anwar al-Awlaki, stating that the citizenship of such an alleged threat ‘should no more serve as a shield than a sniper shooting down on an innocent crowd should be protected from a Swat team.’

At least three additional US citizens have been killed in US drone attacks. In the first ever drone strike outside a battlefield, US citizen Kamal Darwish was among six men killed by the CIA in Yemen in 2002. The Bush administration insisted at the time that the intended targets were alleged al Qaeda suspects accompanying Darwish in the vehicle.

And veteran Washington reporter Bob Woodward has revealed that on November 7 2008, ‘many Westerners, including some US passport holders’ died in an attack near Miranshah in North Waziristan.

As Woodward noted in his book Obama’s Wars, in a subsequent meeting with Pakistan’s President Zardari ‘The CIA would not reveal the particulars due to the implications under American law. A top secret CIA map detailing the attacks had been given to the Pakistanis. Missing from it was the alarming fact about the American deaths … The CIA was not going to elaborate.’

Addressing the fact that three of the four US citizens named by Holder were not the intended targets, New York University law professor Sarah Knuckey told the Bureau: ‘Does it mean that the three were killed as intentional but lawful collateral damage in a strike on some other legitimate target? Or that they were accidental collateral? Or does it mean that they were killed in signature strikes?  We just don’t know what it is intended to mean. In a letter that touts throughout the government’s commitment to transparency and “unprecedented disclosure”, the government has introduced new vague language, and thus new concerns about its targeting policies and practices.’

This article was amended on May 24 to take note of ambiguities regarding the possible abandonment of ‘signature strikes.’