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Ongoing “Drone Strikes” in Yemen Raise Four Questions

From Saturday to Monday morning, the US has reportedly been carrying out a series of air strikes in Yemen, delivering multiple blows to Al Qaeda in the Arabian Peninsula (AQAP). According to a Yemeni official who spoke with CNN, the strikes are “massive and unprecedented.” Shrouded in secrecy, the actions raise questions about the consistency of US operations with the “New Rules” that the White House announced on May 23, 2013 for lethal operations. The actions also raise a profound question about whether US involvement in Yemen (a) has slid into fighting an insurgency (i.e., an internal armed conflict) on the side of the Yemeni government rather than (b) combating AQAP as part of the transnational armed conflict with Al Qaeda pursuant to Congress’s Authorization to Use Military Force.

On Saturday, air strikes reportedly killed 10 AQAP militants in a vehicle but also resulted in killing 3 civilians and wounding 2 civilians in an approaching car. On Sunday and early Monday morning, a series of air strikes reportedly killed another 25 people suspected of being AQAP members. Initial news reports have conflicted over some of the details, and access to the remote mountainous areas, where the strikes occurred, create difficulties for journalists to report. Accordingly, some of the information is sparse, and relies significantly on statements by Yemeni officials. That said, what information is available raises the following questions.

1. Civilian Deaths

The President’s New Rules for kill or capture operations outside of areas of active hostilities forbid strikes that present even a marginal risk of civilian casualties. According to the rules, one of the “criteria [that] must be met before lethal action may be taken” is:

“Near certainty that non-combatants will not be injured or killed.”

Saturday’s attack, however, resulted in 3 civilians dead and 2 wounded. (That strike also follows reports of a US drone strike in Yemen in December 2013 that may have killed several civilians on their way to a wedding.) One should not succumb to a “hindsight bias”—assuming that civilian deaths known after the fact were foreseeable beforehand. Nevertheless with such an extremely low threshold of risk for civilians under the new US rules, how was Saturday’s strike consistent with these requirements?

2. Threats to “US persons”

The New Rules permit lethal force to stop threats only to US persons. The rules state:

“Lethal force will be used only to prevent or stop attacks against U.S. persons.”

Some of the reports on the ongoing US strikes in Yemen, however, suggest that the actions may have been to protect Yemeni civilians and military installations in local areas. Reuters, for example, reported the following statement by Yemen’s state news agency Saba:

“‘This happened after security bodies received confirmed intelligence information about the presence of a car with 11 terrorist elements on board who were planning to target vital civil and military institutions in al-Bayda province,’ Saba cited the source as saying.” (emphasis added).

Reuters reported similar wording in official statements after Sunday’s strikes (also Agence France Presse). That said, perhaps the Yemeni government is making false statements that serve its own self-interest. According to the CNN report, for example, “other Yemeni officials … expressed concern that some of the information being reported by the military may be propaganda.”

3. Presidential override

One provision of the New Rules that has escaped significant media attention is a clause that appears to allow the President to override these restrictions. After setting forth criteria for kill and capture operations, the new rules state near the end:

“Reservation of Authority.  These new standards and procedures do not limit the President’s authority to take action in extraordinary circumstances when doing so is both lawful and necessary to protect the United States or its allies.”

Notice that the criteria (in #2) limit lethal actions to threats to US persons, but the “Reservation of Authority” states that the President may nevertheless take actions “to protect the United States or its allies” (my emphasis). The Reservation of Authority presumably may also lend itself to a decision by the President to authorize military operations that incur a greater risk of civilian casualties than the rules otherwise provide.

4. Yemen’s internal armed conflict

Six months ago, I wrote that US operations in Yemen appear to have slid into fighting a domestic insurgency alongside the Yemeni authorities (here and here). If true, these actions would run contrary to an earlier position of President Obama and John Brennan who, according to Dan Klaidman’s book, opposed getting involved in the insurgency. And it would run counter to several public assurances by the administration. For example, in May 2012, the National Security Council spokesperson stated: “We’re pursuing a focused counter-terrorism campaign in Yemen designed to prevent and deter terrorist plots that directly threaten US interests at home and abroad … We have not, and will not, get involved in a broader counter-insurgency effort.”

The ongoing US actions in Yemen (in addition to the actions I discussed late last year) raise questions about whether those official US statements still hold. First, according to Yemeni officials, recent actions were in response to a threat to civilian and military installations at least in Bayda province (#2 above). The statement by the state news agency also added that the militants killed in the strike were responsible for the assassination of Bayda’s deputy governor on April 15. Those sound more like fighting an insurgency rather than fighting AQAP’s direct threat to the United States. Second, the strikes were described as a joint U.S.-Yemen operation by the Yemeni official who spoke to CNN. And he explained that Yemeni troops would have faced heavy losses if they had attempted a ground assault themselves.

Finally, the Long War Journal reports that “no senior AQAP leaders or operatives are reported to have been killed in the strike” on Saturday (the LWJ is yet to report on the other strikes). The LWJ, has previously described a “trend” in which “the US has targeted not only senior AQAP operatives who pose a direct threat to the US, but also low-level fighters and local commanders who are battling the Yemeni government,” which is contrary, the LWJ notes, to the fact that “Obama administration officials have claimed, however, that the drones are targeting only those AQAP leaders and operatives who pose a direct threat to the US homeland, and not those fighting AQAP’s local insurgency against the Yemeni government.” Once again, however, we should not fall victim to hindsight bias with respect to the recent operations. Even though no senior AQAP operatives have (yet) been reported killed in any of the recent days’ operations, we have also yet to learn who exactly was the target of the attacks.

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About the Author

is co-editor-in-chief of Just Security. Ryan is the Anne and Joel Ehrenkranz Professor of Law at New York University School of Law. You can follow him on Twitter @rgoodlaw.