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Drone Casualty Reporting Requirement Dropped from Intel Authorization Bill

Over the last several months, we’ve been following closely several legislative proposals in the House and Senate aimed at bringing greater transparency to the U.S. drone program.  Although, they vary in their details, each proposal would require the President to issue an annual public report on the number of people killed or injured, including both combatants and civilians, by U.S. drone strikes outside the theater of active combat. For analysis and discussion of these proposals, see our earlier coverage here, here, here, and here.

Yesterday, as Ruchi reported in the Early Edition, Senator Diane Feinstein (D-CA), Chair of the Senate Intelligence Committee, has agreed to remove the drones casualty reporting requirements from the Senate version of the Intel Authorization Act, paving they way for the annual appropriations bill to pass the Senate.  As Mark Mazzetti of The New York Times wrotethe provision encountered almost immediate resistance both from intelligence officials and Republican lawmakers, some who have fought against any changes to the way the targeted killing program has been managed.”  Spencer Ackerman, in The Guardian, reported that the impetus for dropping the language was a letter from DNI Clapper assuring the Senate intelligence committee that the administration was “looking for its own ways to disclose more about its highly controversial drone strikes.”

In that letter (full text), Clapper writes:

“Consistent with President Obama’s 23 May 2013 speech at the National Defense University, in carrying out the fight against al-Qa’ida and its associated forces, the Executive Branch is committed to upholding our laws and values, and to sharing as much information as possible with the American people and the Congress.  The Executive Branch is currently exploring ways in which it can provide the America people more information about the United States’ use of force outside areas of active hostilities.

To be meaningful to the public, any report including the information [regarding drone strike casualties] would require context and be drafted carefully so as to protect against the disclosure of intelligence sources and methods or other classified information.  As we continue to work with the Committee towards making public additional information regarding the United States’ use of targeted lethal force in counterterrorism operations outside the United States and areas of active hostilities, the Executive Branch will continue to ensure that appropriate Members of Congress are kept fully informed, including updates on specific counterterrorism operations.  We are confident that we can find a reporting structure that provides the American people additional information to inform their understanding of important government operations to protect our nation, while preserving the ability to continue those operations.”

The second of the above quoted paragraphs exemplifies some of the concerns that I raised in my first post on the drone reporting requirements last fall, namely that the public reporting requirement “would undoubtedly require the President to disclose classified information, information the President could determine—rightly or wrongly—to be sensitive information, the disclosure of which could harm national security interests.”  And here, DNI Clapper is identifying the risk that sources and methods may be compromised as a result of Congress’ mandating a public reporting requirement.  That, of course, alone isn’t justification for dropping the language from the authorization bill — in theory, Congress and the Administration could have instead worked specific language into the legislation to reduce the risk of revealing confidential sources and methods.  Ultimately, in my view from the cheap seats, the Administration is saying essentially (for the time being at least) “let’s keep with the status quo and let us decide when, how, and if to provide drone casualty data,” and Senator Feinstein has kindly acquiesced in hopes of passing the authorization bill.

So does this mean that the drone strike casualty reporting requirements are being put to bed? Yes and no. Practically speaking, with removal of the language from the Senate intelligence authorization bill, prospects of the proposal being passed into law are remote.  But, we can’t forget that earlier this month, Representatives Adam Schiff (D-CA) and Walter Jones (R-NC) introduced bi-partisan legislation in the House to require annual casualty reports, and Representative Schiff is a strong voice on this issue on Capitol Hill and an important advocate for reforms of the U.S. drone program.  As a result, calls for greater transparency will likely continue for the foreseeable future.

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is the Managing Editor of Just Security. Follow him on twitter @thomasdearnest.