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Five Questions We Should All Be Asking About the NSA and the US Targeted Killing Program

The Washington Post’s latest piece on NSA surveillance, based on Edward Snowden’s leaked documents, provides a glimpse into the US government’s highly secretive process for identifying, surveilling, and locating individuals for lethal drone strikes.  It is an important article.  That is in part because in describing the surveillance and targeting of Hassan Ghul, an alleged senior al-Qaeda member previously detained by the CIA in Iraq, the Washington Post story highlights just how little we know about how, when, and for what purpose the US government uses drones to kill people.

Here are five crucial questions we think the government needs to answer: 

1. How does the drone strike against Ghul compare to other targeted killing strikes?

The particular strike in the Washington Post article appeared to be part of a sophisticated intelligence operation in which an allegedly high-level al-Qaeda target was under surveillance for many months.  Yet we know from other media accounts and the government’s own leaked intelligence reports that many of those killed in the CIA and Pentagon’s targeted killing program have not been top al-Qaeda leaders, as US officials repeatedly claimed, but instead have been low-level unidentified “militants” who were not all even linked to al Qaeda or the Taliban. Some may have been killed more as a political quid pro quo than because of a direct threat to the US.  Credible reporting also suggests that at least several hundred people have been either mistakenly killed or were civilian bystanders. The government has also carried out “signature strikes,” based on patterns of behavior presumed to indicate some form of “militancy”.  Yet apart from admitting that four Americans have been killed in drone strikes, the government has not disclosed official information on the identities of any others killed in 400+ strikes.  We do not know whether those strikes were carried out with anything approaching the degree of individualized intelligence focus, over long-time periods, described against Ghul.

2. What evidentiary standard does the government employ when making lethal force decisions?

The Washington Post account, in part, indicates a high standard in the Ghul case, at least with respect to location  – it says that after “months of investigation, and surveillance by CIA drones” an email from Ghul’s wife “erased any remaining doubt” about where Ghul was.  The next paragraph, however, states that the attack was aimed at “an individual believed to be” Ghul, but that the outcome “wasn’t certain” until it was later “confirmed” that Ghul as killed.  Yet numerous reports have indicated that targets have in the past been incorrectly “located,” and incorrectly believed killed.  This begs the still-unanswered question of how much evidence the government thinks it needs before deciding that a particular person is a lawful target for lethal force, is in fact the person the government thinks he is, and is located where the government plans to strike.

3. What legal frameworks, policy guidelines, and procedures govern lethal targeting?

The NSA documents discussed by the Washington Post do not appear to address the relevant law and policy.  For the past decade, the government has refused to disclose the legal opinions that authorize the use of lethal force against citizens and non-citizens.  The Obama administration issued a “fact sheet” summarizing a “Presidential Policy Guidance” in May 2013 that purported to describe policy restrictions on the use of lethal force.  But drone strikes soon after that fact sheet was released suggested the policy either wasn’t yet in place or was at the very least highly malleable.  The government is still keeping secret the reported 300-page “playbook” that describes the process for lethal force decisions and the role different agencies and decision-makers play in selecting and approving targets.

4. What are the number and identity of civilian bystander casualties—or mistakes—and how does the government investigate any such claims?  

That at least some wrongful killings have occurred, mistakes made, and innocents killed seems quite clear at this point.  The Obama administration’s first known lethal force strike in the al-Majalah region of Yemen in 2009 is but one example. But we don’t know if the NSA, the CIA or any other government agency use their multi-billion-dollar intelligence capabilities to gather data on wrongful or civilian deaths.   If so, why isn’t it made public?  And while the government fights accountability for killings in US courts, does it hold anyone accountable for mistakes through internal administrative or disciplinary processes?

5. How does the government assess the human rights and strategic effects of the strikes?

Regardless of which agency is collecting the data that informs drone strikes, expert studies have raised serious questions about their broader efficacy.  Despite government claims to the contrary, it is far from clear to what extent drone strikes are actually reducing threats to the US—or even its allies.  Indeed, they may be fueling violence in parts of Pakistan and may have contributed to the growth of AQAP in Yemen.   

The Washington Post’s reporting on the role of the NSA in the US targeted killing program is a reminder of how little we still know about who the US is killing, with what justification, and with what impact. We should all be pressing for complete answers to these fundamental questions.  Without clear answers, the public cannot meaningfully evaluate either the government’s surveillance or targeted killings programs.

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About the Authors

is Senior Counsel in Human Rights First’s Law and Security Program. Follower her on twitter @deviatar.

is Director of the Project on Extrajudicial Executions at New York University School of Law, and a Special Advisor to the UN Special Rapporteur on extrajudicial executions. Follow her on twitter @SarahKnuckey.

is the Director of the ACLU’s National Security Project. Follow her on twitter @HinaShamsi.