Drones, transparency and legitimacy

Transparency is the new buzzword in counterterrorism. Two U.N. special rapporteurs and numerous human rights groups, among others, now regularly call for transparency about drone strikes and other counterterrorism operations. These demands for transparency focus on who is being targeted, who else (namely civilians) is being killed, which governmental agency is launching the strikes, and under what legal rationale such strikes are authorized and carried out. In other words, the transparency debate is about law, not about battle plans, military readiness or other operations questions, but about law and legal analysis.

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Those calling for transparency argue that it is a legal obligation. But the law of armed conflict — the law that applies to U.S. strikes against al Qaeda as long as the conflict is ongoing — does not require transparency. It does mandate that parties engaged in armed conflict comply with the legal obligations and fundamental principles set forth in the Geneva Conventions, their additional protocols, and customary international law, including minimizing harm to civilians and using lawful means and methods of warfare. Attacks must be carried out in a lawful manner against lawful targets, but the reasons and legal justifications for the attacks do not need to be made public.

In fact, there are good reasons to be reluctant about transparency with regard to targeting decisions. Information about how the United States identifies al Qaeda operatives also tells those operatives how to better disguise themselves. Extensive reports and debates about numbers of civilian casualties provide excellent fodder for terrorist groups to use the civilian population as a pawn, exploiting international law by putting more civilians in danger to gain the propaganda advantage.

The law may not require transparency, but legitimacy now does. And legitimacy lies at the heart of success in any military operation.

Legitimacy once stemmed from having a just cause for war — as in World War II, there was little doubt that defeating Hitler and his allies was a legitimate mission. In recent years, legitimacy's central issue has morphed from the justification for the use of force to the measure of international law compliance in the conduct of war. That is, compliance with the law of armed conflict is essential to legitimacy and therefore to military success. The linkage between international law compliance and legitimacy is particularly acute in counterinsurgency campaigns, when any suggestion of unlawfulness undermines the goal of winning hearts and minds.

This international law—legitimacy connection lies at the heart of the debate about targeted strikes by unmanned aerial vehicles, or drones, over the past several years. Drone strikes were presented as a legitimate means of counterterrorism specifically because of the heightened capabilities drones offer for compliance with the law of armed conflict's key principles of distinction, proportionality and precautions. Repeated reports of civilian casualties — exactly what the law of armed conflict seeks to minimize — undermined this claim of legitimacy because of actual or perceived unlawfulness, the second stage of legitimacy above.

It is important to understand that the law of armed conflict does not prohibit nor criminalize all civilian deaths during armed conflict. It prohibits deliberate attacks on civilians, indiscriminate attacks and attacks that violate the principle of proportionality (by causing civilian casualties that are excessive in relation to the military advantage of the target being attacked). Indeed, the law accepts that there will be incidental casualties from lawful attacks, a tragic but not criminal consequence of war. But the perception of unlawfulness — even stemming from misunderstandings or misapplications of the law — is sufficient to undermine legitimacy in this second phase of legitimacy.

We now see the third stage of legitimacy in which transparency about counterterrorism operations becomes a touchstone for their legitimacy. As the debate over the numbers of civilian casualties intensified — spurred on partially by U.S. claims of zero civilian casualties from drone strikes in 2011 — demands for information to verify or challenge the legality of the strikes grew. The vastly differing reports of civilian casualties created the impression that the U.S. was hiding something, and the suggestion of secrecy and false representations merely fueled additional calls for transparency and concerns about secrecy and excessive claims of national security. Very quickly, transparency became the perceived measure of lawfulness, rather than the alleged militants being targeted or the civilians caught in the crossfire.

But transparency about drone strikes is not so much about law as about legitimacy. Those advocating for transparency have very effectively presented it as a legal issue, even though there is no obligation under the law of armed conflict to be transparent about targeting decisions before or after the fact. The effect, however, is that in a very short time, the touchstone of legitimacy has shifted from international law compliance to openness and transparency about the application of international law.

The Obama administration may hold the line and even win some battles on the legal issues relating to transparency and release of information. But once transparency becomes integral to legitimacy, it risks losing the war, because legitimacy is about far more than law.

Blank is a clinical professor of law and the director of the International Humanitarian Law Clinic at Emory University School of Law.

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