RETHINKING

THE DRONE WAR

Quantico, Virginia

MCUP MARINE CORPS UNIVERSITY PRESS 

LARRY LEWIS

DIANE M. VAVRICHEK

RETHINKING

THE DRONE WAR

NATIONAL SECURITY, LEGITIMACY, AND CIVILIAN CASUALTIES 

IN U.S. COUNTERTERRORISM OPERATIONS

A joint publication of CNA

and Marine Corps University Press

2016
This book represents the best opinion of the authors at the time of printing. The views and opinions are 

the authors’ own, and do not necessarily represent those of CNA, the Department of the Navy, the U.S. 

Marine Corps, Marine Corps University, or the U.S. government. 

Library of Congress Cataloging-in-Publication Data

Names: Lewis, Larry L. (Lawrence L.), author. | Vavrichek, Diane, author.

Title: Rethinking the drone war : national security, legitimacy, and civilian

 casualties in U.S. counterterrorism operations / Larry Lewis, Diane

 Vavrichek.

Other titles: National security, legitimacy, and civilian casualties in U.S.

 counterterrorism operations

Description: Quantico, VA : CNA and Marine Corps University Press, [2016] |

 Includes index.

Identifiers: LCCN 2016034013

Subjects: LCSH: Drone aircraft--United States--History. | Drone

 aircraft--Government policy--United States. | Drone aircraft--Moral and

 ethical aspects--United States. | Uninhabited combat aerial

 vehicles--Government policy--United States. |

 Terrorism--Prevention--Government policy--United States. | Targeted

 killing--Government policy--United States. | Civilian war

 casualties--Prevention. | United States--Military policy--Moral and

 ethical aspects. | United States--Military policy--Public opinion. |

 National security--United States.

Classification: LCC UG1242.D7 L48 2016 | DDC 363.325/16--dc23

LC record available at https://lccn.loc.gov/2016034013

ISBN 978-0-9973174-3-5

Drone Strikes in Pakistan © 2014 by CNA Corporation

The Future of Drone Strikes © 2014 by CNA Corporation

Improving Lethal Action © 2014 by CNA Corporation

Security and Legitimacy © by CNA Corporation (forthcoming)

MCUP MARINE CORPS UNIVERSITY PRESS 

Marine Corps University Press

111 South Street

Quantico, VA 22134

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1st printing, 2016

CNA Corporation

3003 Washington Boulevard

Arlington, VA 22201

www.cna.org
Illustrations vii

Tables ix

Preface xi

Acknowledgments xiii

Abbreviations xv

PART I 

Drone Strikes in Pakistan: Assessing Civilian Casualties

Chapter 1: Introduction 1

Chapter 2: Drone Strike Casualty Estimates 6

Chapter 3: Discrepancies in Civilian Casualty Estimates 12

Chapter 4: Platform Precision or Comprehensive Process? 20

Chapter 5: The Drone Campaign and Civilian Harm 24

Chapter 6: Conclusions and Recommendations 30

PART II 

The Future of Drone Strikes: A Framework for Analyzing Policy Options

Chapter 7: Introduction 37

Chapter 8: Framework and Policy Options 44

Chapter 9: Military Effectiveness 57

Chapter 10: Legitimacy 65

CONTENTS

v
Chapter 11: Anticipating Net Effectiveness 89

Chapter 12: Conclusions and Recommendations 95

PART III

Improving Lethal Action: Learning and Adapting in U.S. Counterterrorism 

Operations

Chapter 13: Introduction 105

Chapter 14: An Analytical Approach to Improve Lethal Action 

Operations 114

Chapter 15: Illustrating the Approach 127

Chapter 16: Implementing the Approach 150

Chapter 17: Benefits of the Process 155

Chapter 18: Conclusions and Recommendations 164

PART IV

Security and Legitimacy: Learning from the Past Decade of Operations

Chapter 19: Introduction 171

Chapter 20: Lesson One: Promoting Legitimacy 175

Chapter 21: Lesson Two: Practicing Legitimacy 189

Chapter 22: Conclusions and Recommendations 197

Appendix A: Title 10, Title 50, and Oversight 209

Appendix B: Covert Actions 213

Index 223

vi | Contents
ILLUSTRATIONS

Figure 1. Disparate estimates for civilian deaths from drone strikes in Pakistan, 

2004–13

Figure 2. Comprehensive process for reducing and mitigating civilian harm

Figure 3. Number of drone strikes in Pakistan per year

Figure 4. Percent of operations resulting in civilian deaths per year

Figure 5. Analytical approach to improve lethal force operations 

Figure 6. Perceived tension between mission success and CIVCAS 

Figure 7. Common relationship between mission success and CIVCAS in 

Afghanistan 

Figure 8. Relationship between mission success and CIVCAS

Figure 9. Lethal action operations per year in Pakistan and Yemen 

Figure 10. Target type distribution for lethal action operations in Pakistan and 

Yemen, 2012–14 

Figure 11. Percent of lethal action operations that successfully targeted a senior 

leader, by target type 

vii
Figure 12. Maximum/minimum combatant casualties from lethal action operations with different target types 

Figure 13. Percent of lethal action operations causing civilian deaths, by year 

Figure 14. Average civilian deaths per incident, by year 

Figure 15. Average civilian deaths per operation 

Figure 16. Relationship between mission success and CIVCAS 

Figure 17. Initial locations of U.S. forces and civilian convoy

Figure 18. Movement of civilian convoy 

Figure 19. Strike on civilian convoy

Appendix figure 1. Relationship between legal and doctrinal definitions of covert

viii | Illustrations
TABLES

ix

Table 1. Overall statistics for drone strikes in Pakistan, 2004–13

Table 2. Potential advantages of increased TME and perceived legitimacy

Table 3. Potential effects of policy options on military effectiveness and identified legitimacy issues

Table 4. Short- and long-term effects of mission success and CIVCAS 

Table 5. Hypothetical report card for meeting PPG goals 

Table 6. Overall civilian death statistics for Pakistan and Yemen through August 

2014

Table 7. Comparing CIVCAS from drone strikes and other operations in Yemen

Table 8. Operations in Yemen and Pakistan achieve the aims of the PPG 

Appendix table 1. Definitions of covert

PREFACE

The years since 9/11 have seen an evolution in U.S. national security 

practices with respect to counterterrorism operations, particularly when 

it comes to lethal force via the use of armed drones, also known as unmanned aerial vehicles, or UAVs. 

Drones constitute a recent addition to the long list of technological 

advancements in warfighting over time, a list that includes the development of the crossbow, gunpowder-powered projectile weapons, chemical 

weapons in World War I, and rockets and jet aircraft in World War II. The 

most advanced drones—the armed Predator and Reaper models—offer 

persistent surveillance as well as the ability to engage targets from almost 

anywhere across the globe, without a requirement for forces on the ground. 

This extended reach offers a clear example of how advances in technology 

can provide a new and effective option for using lethal force. 

Technological advancements and changing security practices affecting the use of force raise important ethical and practical questions, such 

as whether the technologies and practices should be used in warfare and 

whether self-imposed limits are appropriate for their responsible use, 

which can be addressed through national policy decisions, as well as such 

international laws and standards as the principles of humanity enshrined 

in the Geneva Conventions of 1949. The modern counterterrorism context 

is no exception. U.S. national security practices, especially those involving 

armed drones, have raised numerous questions related to ethics and practicality. This volume is a collection of four reports that collectively address 

these issues by exploring the themes of legitimacy, civilian protection, and 

xi
xii | Preface

national security interests. They address, for example, the following questions in the modern counterterrorism context.

Legitimacy

Do U.S. means and methods of war enhance our perceived legitimacy and influence? Would we want other nations to model our own 

behavior?

Civilian Protection

A fundamental tenet of international law governing armed conflict is 

to safeguard civilians from the effects of war when possible. How effective are we in protecting civilians while being effective against the 

threat?

National Security Interests

A sovereign nation has both the right and obligation to protect its own 

citizens and look after their welfare. How do our practices and adoption of lethal force technologies affect these interests in the short and 

long term?

This volume provides concrete recommendations for policy makers as well 

as military commanders, a number of which have, since the time of its 

writing, been incorporated into the recent U.S. policy guidelines related to 

civilian casualties. 

Although this volume focuses specifically on current counterterrorism practices, its analysis, frameworks, and conclusions can be applied in 

varying degrees to emerging technologies as well. These considerations 

can help a government ensure that its use of force is not only effective, but 

also responsible and consonant with its larger interests. 
ACKNOWLEDGMENTS

Portions of this work were funded by CNA. CNA, a nonprofit research and 

analysis organization with more than 600 analysts and professional staff, is 

dedicated to developing actionable solutions to complex problems of national importance. In addition to defense-related matters for the U.S. Navy 

and Marine Corps, CNA’s research portfolio includes policing, homeland security, climate change, water resources, education, and air traffic 

management.

The authors gratefully acknowledge the individuals who aided their research by granting interviews; as well as the following colleagues for their 

feedback and support: William D. Brobst, Richard Brody, Alan C. Brown, 

Marc Garlasco, Matthew Grund, Lieutenant Commander Matthew Ivey 

(U.S. Navy, Judge Advocate General’s Corps [JAGC]), Captain Mark E. 

Rosen (U.S. Navy, JAGC, Ret), and Jonathan Schroden.

xiii

ABBREVIATIONS

AAR After action report

AFRICOM U.S. Africa Command

AQAP al-Qaeda in the Arabian Peninsula

AQIM al-Qaeda in the Islamic Maghreb

ASM Air-to-surface missile

AUMF Authorization for the Use of Military Force

BDA Battle damage assessment

BIJ Bureau of Investigative Journalism

BPC Building partner capacity

CALL Center for Army Lessons Learned

CENTCOM U.S. Central Command

CIA Central Intelligence Agency

CIVCAS Civilian casualties

CIV K Civilians killed

CNA Center for Naval Analyses

xv
xvi | Abbreviations

COIN Counterinsurgency

COMISAF Commander, International Security Assistance Force

CPA Coalition Provisional Authority

CT Counterterrorism

DNI Director of National Intelligence

DOD Department of Defense

DOJ Department of Justice

DPH Directly participate in hostilities

EOF Escalation of force

FARC Fuerzas Armadas Revolucionarias de Colombia

 or the Revolutionary Armed Forces of Colombia—People’s Army

FATA Federally Administered Tribal Areas

FBI Federal Bureau of Investigation

FISA Foreign Intelligence Surveillance Act

FMS Foreign Military Sales

FOIA Freedom of Information Act

HUMINT Human intelligence

IAC International armed conflict

ICRC International Committee of the Red Cross

IED Improvised explosive device

IHL International humanitarian law
Abbreviations | xvii

IHRL International human rights law

ISAF International Security Assistance Force

ISIL Islamic State of Iraq and the Levant (a.k.a. IS, ISIS)

JCCS Joint Civilian Casualty Study

JCOA Joint and Coalition Operational Analysis Division/Joint Center 

for Operational Analysis

JLLIS Joint Lessons Learned Information System

KIA Killed in action

LOAC Law of armed conflict

MAM Military-age male

MEK Mujahedin-e Khalq

MILGROUP U.S. military group

MNF-I Multinational Force–Iraq

NAF New America Foundation

NATO North Atlantic Treaty Organization

NCT Nation containing the target

NGO Nongovernmental organization

NIAC Noninternational Armed Conflict

NSA National Security Agency

OEF Operation Enduring Freedom

OGA Other (i.e., nonmilitary) government agency
OGC Office of General Counsel (DOD)

OME Operational military effectiveness

OPE Operational preparation of the environment

OSD Office of the Secretary of Defense

PED Processing, exploitation, and dissemination

PID Positive identification

POW Prisoner of war

PPG Presidential Policy Guidance

QRF Quick reaction force

ROE Rules of engagement

SA Situational awareness

SERE Survival, Evasion, Resistance, and Escape training

SME Strategic military effectiveness

SOF Special Operations Forces

TLAM Tomahawk land attack missile

TMA Traditional military activity

TME Tactical military effectiveness

TTP Tactics, techniques, and procedures

UAS Unmanned aerial system

UAV Unmanned aerial vehicle (“drone”)

UCMJ Uniformed Code of Military Justice

xviii | Abbreviations
Abbreviations | xix

UN United Nations

UNSCR United Nations Security Council Resolution

USAID U.S. Agency for International Development

DRONE STRIKES

IN PAKISTAN

ASSESSING CIVILIAN CASUALTIES

BY LARRY LEWIS

PART I

CHAPTER 1

INTRODUCTION

Drones (referred to as unmanned aerial vehicles or UAVs by the U.S. military) are a recent innovation in warfare, introducing new and important 

capabilities to the battlefield.1 For example, drone platforms offer persistence beyond the endurance of manned aircraft, allowing intelligence collection, pattern of life development, and attacks on targets in remote areas 

using armed drones. Drones also provide intelligence feeds that are distributed to and interpreted by a team of analysts and operators, often at great 

distances from the platform. In addition, drones offer an integrated option 

for collecting intelligence and striking targets in other countries without requiring boots on the ground, avoiding force protection concerns as well as 

more overt infringements of national sovereignty. 

Some concerns have been expressed, however, over the increasing use 

of drones. These concerns include:

1

 While this technology is still very young, the origins of UAVs can be seen in the early recoverable and reusable radio-controlled aircraft from the 1930s. For more information, see Chris Cole, 

“Rise of the Reapers: A Brief History of Drones,” Drone Wars UK, 10 June 2014, http://dronewars

.net/2014/10/06/rise-of-the-reapers-a-brief-history-of-drones/. The Central Intelligence Agency 

(CIA) first began working with drone technology in 2000 and armed them following the terrorist 

attacks of 11 September 2001.

1
2 |Drone Strikes in Pakistan

• ethical considerations, such as the effect of the increased distance 

between the target and the person pulling the trigger on decisions regarding the use of force;2

• legal considerations, such as the legal basis for the use of force in areas 

outside of declared areas of armed conflict;3

• civilian casualties and the tactics perceived to be associated with drone 

use, such as double-tapping targets or signature strikes;4 and

• the various organizations employing drones and consequent implications for the use of force, such as respective practices for considering 

collateral damage and whether they comply with international humanitarian law, such as the Geneva Conventions and their additional 

protocols.5

In light of these advantages and concerns, a broad public debate has begun 

concerning the use of drones. Perhaps the most contentious aspect of that 

debate involves their use in the U.S. counterterrorism (CT) campaign, and 

2

 Peter W. Singer, Can Drones and Viruses Be Ethical Weapons? (Washington, DC: Brookings, 2014), 

http://www.brookings.edu/research/interviews/2014/02/28-can-drones-viruses-be-ethical

-weapons-singer.

3

 Ben Emmerson, Promotion and Protection of Human Rights and Fundamental Freedoms while 

Countering Terrorism, UN Doc. A/68/389 (New York: UN General Assembly, 2013).

4

 For the purposes of this discussion, double tapping refers to instances when a targeted site is 

struck multiple times over a short period. Unfortunately, the second strike has a higher probability of targeting first responders or U.S. forces on the ground. For more, see Michael B. Kelley, 

“More Evidence that Drones Are Targeting Civilian Rescuers in Afghanistan,” Business Insider, 

25 September 2012, http://www.businessinsider.com/drone-double-tap-first-responders-2012-9. 

For more on signature strikes, see The Civilian Impact of Drones: Unexamined Costs, Unanswered 

Questions (Washington, DC: Human Rights Clinic at Columbia Law School and the Center for 

Civilians in Conflict, 2012), http://civiliansinconflict.org/resources/pub/the-civilian-impact-of

-drones.

5

 Charli Carpenter, “Are CIA Drone Pilots Likelier to Comply with International Law?,” Duck 

of Minerva (blog), 22 January 2014, http://duckofminerva.com/2014/01/are-cia-drone-pilots

-likelier-to-comply-with-international-law.html.
specifically the “users” ability to discriminate between terrorists and civilians.6

 Part I of this monograph examines that issue. 

DRONES IN COUNTERTERRORISM OPERATIONS

The United States uses drone strikes to target members of al-Qaeda, the 

Taliban, and affiliated terrorist groups. These drone operations have been 

conducted both in major theaters of operation (e.g., Iraq and Afghanistan) 

and in CT campaigns outside of declared theaters of operation (e.g., Pakistan and Yemen). The U.S. government justifies these campaigns based on 

an imminent threat to U.S. interests and the minimal cost of this approach 

to civilian lives.7 In sum, U.S. officials describe drone strikes as both effective and “surgical.” While there is some controversy regarding the legality 

of the use of force outside of declared theaters of conflict, the topic of legal 

use of force will not be explored in this work.

In the short term, drone strikes appear to have weakened enemy networks operating in such areas as Pakistan. In the long term, however, these 

benefits can be undermined by the tendency of drone strikes to create 

grievances that can both radicalize populations and increase support for 

terrorist elements.8 In addition, civilian casualties from CT operations negatively impact the nations in which operations occur, reinforcing concerns 

over U.S. encroachment of national sovereignty and creating political pressure for those governments. In response, these nations can limit or discourage the conduct of such operations, hindering the American government’s 

ability to respond to imminent threats over the long term. Thus, civilian 

6

 Larisa Epatko, “Controversy Surrounds Increased Use of U.S. Drone Strikes,” PBS News, 10 

October 2011, http://www.pbs.org/newshour/rundown/drone-strikes-1/.

7

 Imminent does not necessarily mean immediate in this context. Under the U.S. interpretation 

of anticipatory self-defense, the “principle of imminence does not involve a requirement to have 

clear evidence that a specific attack will be carried out in the immediate future.” See Emmerson,

Promotion and Protection of Human Rights.

8

 For example, a number of British members of Parliament wrote a letter to the U.S. government 

expressing concerns about the radicalization caused by civilian casualties during drone strikes. 

“Drone Attacks Lead to Terrorism,” Letters to the Editor, Times (London), 26 July 2012.

Introduction | 3
4 |Drone Strikes in Pakistan

casualties from U.S. operations can simultaneously increase the threat to 

the nation and reduce our ability to confront them.

While the United States should carefully monitor these concerns, imperatives for immediate action can sometimes trump such long-term considerations. For example, the 2011 raid on Osama bin Laden’s Abbottabad 

compound clearly has had lasting effects on the U.S. relationship with Pakistan, but the value of direct action was regarded as paramount in that particular case.9

U.S. officials and some academics have described the precision and 

low collateral damage nature of drone strikes using such adjectives as “surgical” and “humane.”10 U.S. officials have regularly stated that reducing 

the risk of civilian casualties is a national priority:

• President Barack H. Obama: “Before any strike is taken, there must be 

near-certainty that no civilians will be killed or injured—the highest 

standard we can set.”11

• Former Deputy National Security Advisor and current CIA Director 

John O. Brennan: “We’ve done everything possible in Afghanistan and 

other areas to reduce any risk to that civilian population.”12

9

 While not accomplished with a drone strike, this raid represents one end of the spectrum with 

regard to trading off benefits of CT actions with their potential negative second-order effects.

10 Such descriptions from academia include Daniel L. Byman, Why Drones Work: The Case for 

Washington’s Weapon of Choice (Washington, DC: Brookings, 2013), http://www.brookings.edu

/research/articles/2013/06/17-drones-obama-weapon-choice-us-counterterrorism-byman; and 

Michael W. Lewis, “Drones: Actually the Most Humane Form of Warfare Ever,” Atlantic, 21 

August 2013, http://www.theatlantic.com/international/archive/2013/08/drones-actually-the

-most-humane-form-of-warfare-ever/278746/.

11 Barack H. Obama, “Remarks by the President at the National Defense University” (speech, 

Fort McNair, Washington, DC, 23 May 2013), https://www.whitehouse.gov/the-press-office

/2013/05/23/remarks-president-national-defense-university.

12 Ken Dilanian, “Brennan Defends U.S. Drone Attacks Despite Risks to Civilians,” Los Angeles Times, 29 April 2012, http://latimesblogs.latimes.com/world_now/2012/04/brennan-drone

-attacks.html.
Introduction | 5

While the U.S. government’s stated commitment to minimizing civilian 

harm is laudable, reported levels of civilian casualties for operations in 

Pakistan differ significantly from nearly every other estimate available, including several open source estimates and a recent UN report.13 The disparity between the two sets of civilian casualty estimates—those from the 

U.S. government versus those from nongovernmental and international organizations—raises two salient questions: who is right, and why is there 

such a disparity? 

Part I of this work explores this disparity and its possible causes, and 

examines the underlying assertion that drones are inherently surgical in 

their abilities, creating minimal civilian risk. Open source data will then 

show trends in civilian casualties from U.S. drone strikes in Pakistan and 

illustrate ways to identify root causes of these incidents to inform improvement in future operations.

13 Emmerson, Promotion and Protection of Human Rights.
CHAPTER 2

DRONE STRIKE CASUALTY ESTIMATES:

ARE U.S. GOVERNMENT NUMBERS ACCURATE?

When examining civilian casualties, it is critical to define what a civilian 

is.1 For the purpose of this discussion, civilians are “those persons who are 

not combatants (members of military/paramilitary forces) or members of 

organized armed groups of a party of a conflict.”2 The term civilian casualty

refers to the death or injury of a civilian as a result of actions of a combatant entity (e.g., the United States, a Coalition partner, host-nation security 

forces, or insurgents/terrorists). Note that this represents a negative definition; per international humanitarian law (IHL), the burden of proof is to 

determine whether a casualty is a combatant. If their identity is in doubt, 

they should be considered civilian. The consequences of this principle in 

counting civilians will be discussed later. Also, a civilian casualty incident 

is defined as an operation where civilian harm is caused. For our purposes, 

the term civilian deaths is also used, because it can be difficult to reliably de1 This paper uses language consistent with the U.S. perspective that the CT drone campaign is an 

armed conflict, so that the legal conventions and operating definitions of an armed conflict apply.

2 Afghanistan: Annual Report 2011; Protection of Civilians in Armed Conflict (Kabul: United Nations Assistance Mission in Afghanistan [UNAMA], 2012). Note also that civilians lose their protected status when they directly participate in hostilities (DPH) or are a part of “levée en masse,” 

a term from the Third Geneva Convention describing a mass uprising of the civilian population. 

The author’s position is that such civilians who lose protected status should not be tracked as 

civilian casualties, or alternately, be tracked separately.

6
termine the number of injured civilians; civilian deaths are easier to quantify, though easier does not mean simple. 

Although it is not necessarily feasible to determine absolute numbers 

of civilian casualties overall, it is important to estimate the overall levels 

of casualties in the U.S. drone campaign as accurately as possible. While 

it might seem as if the U.S. government is best positioned to measure the 

impact of an activity, that may not be the case, as discussed below. Regardless of what the U.S. government knows, however, it does not routinely 

share this information with others. When data is shared, it typically comes 

in the form of quotes from U.S. military commanders and top government 

officials. While these figures point to very low numbers, they are not sufficient to generate an estimate.3

 Although President Obama recently promised greater transparency with regard to the U.S. drone campaign and its 

toll on civilians, actual numbers have yet to be released.4

The American government is not the only entity that can estimate the 

civilian impact of drone strikes. Several other organizations compile and 

track information on U.S. drone strikes in Pakistan and elsewhere, including the Bureau of Investigative Journalism (BIJ), a media organization 

headquartered in the United Kingdom, and the New America Foundation 

(NAF), a U.S. think tank.5 A recent report by the UN special rapporteur, reflecting comments by the Pakistan government, provided another estimate 

of civilians killed in drone strikes in Pakistan from 2004 to 2013.6

NAF and BIJ share a similar methodology for aggregating numbers of 

casualties contained in news reporting. Both BIJ and NAF aim to increase 

3

 It is not clear whether the United States has an existing database of civilian casualties from the 

drone campaign—akin to the practice of International Security Assistance Force (ISAF) and U.S. 

forces in Operation Enduring Freedom—that it could use to derive estimates.

4

 Peter Bergen and Jennifer Rowland, “Did Obama Keep His Drone Promises?,” CNN News, 25 

October 2013, http://www.cnn.com/2013/10/25/opinion/bergen-drone-promises/.

5

 BIJ’s drone data is available at https://www.thebureauinvestigates.com/category/projects/drones

/drones-graphs/; or see Daniel Rothenberg et al., Reflections from the First Annual Conference on 

the Future of War (Washington, DC: New America Foundation, 2015), https://www.newamerica

.org/international-security/future-war/policy-papers/reflections-from-the-first-annual-conference-on-the-future-of-war-3/.

6

 Emmerson, Promotion and Protection of Human Rights.

Drone Strike Casualty Estimates | 7
8 | Drone Strikes in Pakistan

transparency regarding the drone campaign by compiling data on drone 

strikes and presenting this data alongside the original reports. Both organizations reference a broad set of media dispatches, an approach that generates estimated ranges of casualties based on sometimes disparate reporting. 

For example, on 21 August 2012 in Shana Khora village, near Datta Khel 

in North Waziristan, Pakistan, witnesses saw four missiles from a drone 

impact a vehicle. BIJ estimated that there were between one and three civilian casualties from this strike, based on several available news reports. 

Overall casualty totals presented here include both the minimum and 

maximum values for reference; however, the detailed analysis in a later 

section uses the minimum number of casualties from these two sources.7

While these two organizations share the same general approach, they 

differ somewhat in the specific data sources. NAF relies on a group of 

newspapers it deems reputable.8 Similarly, BIJ references a set of newspapers considered reliable, but it also considers additional sources, such as 

WikiLeaks and public interest lawsuit documentation, as well as its own 

field investigations in Pakistan.9 The difference in approaches leads to some 

variance in civilian death estimates reported by the two organizations. 

The UN special rapporteur report reflects information provided by 

the Pakistani government concerning its own estimates of civilian deaths 

from U.S. drone strikes. Similar to the BIJ and NAF estimates, the Pakistani 

7

 It has been discussed elsewhere how U.S. official estimates for civilian casualties tend to be 

too low while media reports trend higher. See Larry Lewis and Sarah Holewinski, “Changing of 

the Guard: Civilian Protection for an Evolving Military,” PRISM 4, no. 2 (2013): 57–66. The 

practice of using the minimum value is expected to help reduce the impact of this inflation factor 

observed in some reports.

8

 NAF uses the three major international wire services (Associated Press, Reuters, and Agence 

France-Presse), the leading Pakistani newspapers (Dawn, Express Times, The News, and Daily 

Times), leading Southeast Asian and Middle Eastern television networks (Geo TV and Al Jazeera), 

and Western media outlets with extensive reporting capabilities in Pakistan (CNN, New York 

Times, Washington Post, LA Times, BBC News, The Guardian, and Daily Telegraph). For more on 

the topic, see Ritika Singh, “A Meta-Study of Drone Strike Casualties,” Lawfare (blog), 22 July 

2013, https://www.lawfareblog.com/meta-study-of-drone-strike-casualties/.

9

 Founded in 2006 by Iceland native Julian Assange, WikiLeaks promotes itself as a nonprofit, 

journalistic organization that publishes leaked and often classified documents from anonymous 

sources.
Drone Strike Casualty Estimates | 9

government’s estimates offer a range of values, with a minimum and an 

additional number of possible suspected noncombatants. The Pakistani 

government also stated that this number should be regarded as an underestimate of the true civilian toll due to challenges of access, investigation, 

and reporting in Pakistan’s Federally Administered Tribal Areas (FATA).10

Estimates for total civilian casualties from U.S. drone strikes in Pakistan over the period (2004–13) from BIJ, NAF, and the UN are shown in 

figure 1.11 The minimum numbers from each of these sources are used as 

the baseline values, with the maximum estimates also provided for reference. While the range is wide—spanning a minimum of 258 casualties for 

the minimum estimate of NAF to a maximum estimate of 951 for BIJ—the 

large disparity in these values is not hard to explain. First, while BIJ has a 

wide range of possible estimates, it regards the lower end of its estimates 

to be more likely to approach actual values. This assumption is consistent 

with analysis for Afghanistan that showed a propensity of some reporting of civilian casualty incidents to show inflated values for high-visibility 

incidents.12

In addition, while BIJ documents two categories of casualties (civilian 

and militant), NAF data covers three (civilian, militant, and unknown). Per 

international law, individuals of unknown status are to be treated as civilian. There were a minimum of 198 casualties in the NAF data identified as 

unknown; these should be included in civilian estimates barring evidence 

to the contrary, increasing the NAF minimum estimate to 456. The column 

10 The UN special rapporteur “was informed that the Government [of Pakistan] has been able to 

confirm that at least 400 civilians had been killed as a result of drone strikes, and that a further 

200 individuals were regarded as probable noncombatants. Officials indicated that due to underreporting and obstacles to effective investigation on the ground these figures were likely to be 

under-estimates of the number of civilian deaths.” Statement of the Special Rapporteur following 

Meetings in Pakistan (New York: United Nations, 14 March 2013), newsarchive.ohchr.org/EN

/NewsEvents/Pages/DisplayNews.aspx?NewsID=13146&LangID=E.

11 Numbers for BIJ were derived from BIJ’s database, as provided by the author. Numbers for 

NAF were posted on their website for “Drone Wars Pakistan: Analysis,” NAF, 31 December 

2013.

12 Lewis and Holewinski, “Changing of the Guard.”
labeled “NAF-2” in figure 1 reflects the addition of these casualties and 

appears more consistent with the other data sources. 

Thus, the range of values for the UN estimate—between 400 and 

600—could be viewed as a reasonable general range based on these considerations. Most notably, the UN source is independent of these two other 

data sets. It is possible, however, that these estimates are artificially low. 

For example, the Pakistani government acknowledged access limitations 

that could make its estimate lower than the actual civilian toll. Similarly, 

observers noted that some factors could lead the media to systematically 

underreport casualties, which would lower both NAF and BIJ estimates 

compared to actual values.13 For example, news reports are affected by 

13 James Cavallaro, Stephan Sonnenberg, and Sarah Knuckey, Living Under Drones: Death, Injury 

and Trauma to Civilians from US Drone Practices in Pakistan (Stanford, CA: International Human 

Rights and Conflict Resolution Clinic, Stanford Law School and the Global Justice Clinic, NYU 

School of Law, 2012).

0

200

400

600

800

1,000

NAF NAF-2 BIJ UN U.S.

Data source for drone strikes

Estimated civilian deaths

Maximum

Minimum

?

NAF-2 represents the number of civilian deaths plus those defined as “unknown.”

10 | Drone Strikes in Pakistan

Source: Bureau of Investigative Journalism and New America Foundation, “Drone Wars Pakistan: Analysis,” accessed 31 

December 2013.

Figure 1. Disparate estimates for civilian deaths from drone strikes in Pakistan, 2004 –13.
limited journalist access to the FATA areas, which can result in missing information available only in the local area, as well as reporters’ reliance on 

intelligence channels that may be unaware of the actual extent of civilian 

harm, which will be discussed later in this section. Such systematic omissions could cause both BIJ and NAF estimates to be lower than actual civilian tolls, though BIJ estimates should be affected less by this factor due to 

its multisource data collection methodology. 

While there is no official U.S. estimate to compare to these values, 

recent public U.S. government comments on the civilian toll of drone 

strikes suggest significantly smaller numbers of casualties compared to 

these other sources. For example:

• Former Deputy National Security Advisor John O. Brennan said in 

June 2011: “[Over the past 10 months,] there hasn’t been a single collateral death because of the exceptional proficiency, precision of the capabilities we’ve been able to develop.”14

• Senate Intelligence Committee Chair Senator Dianne Feinstein said 

in February 2013: numbers of civilian casualties each year for drone 

strikes overall, including both Pakistan and Yemen, have “typically 

been in the single digits.”15

The process of counting casualties in conflict is not easy; it poses political 

as well as practical challenges. The fact that senior U.S. officials are repeatedly called to comment on civilian tolls from drone attacks highlights the 

political dimension of civilian casualties. The political pressure created by 

civilian casualties has been seen consistently in recent Coalition campaigns 

over the past several decades, reaching a high point in Afghanistan.

14 Scott Shane, “CIA Is Disputed on Civilian Toll in Drone Strikes,” New York Times, 11 August 

2011, http://www.nytimes.com/2011/08/12/world/asia/12drones.html?_r=0.

15 Lee Ferran, “Intel Chair: Civilian Drone Casualties in ‘Single Digits’ Year-to-Year,” ABC 

News, 7 February 2013, http://abcnews.go.com/blogs/headlines/2013/02/intel-chair-civilian

-drone-casualties-in-single-digits-year-to-year/.

Drone Strike Casualty Estimates | 11
CHAPTER 3

12

DISCREPANCIES IN CIVILIAN CASUALTY ESTIMATES

Some practical considerations make estimating civilian casualties difficult, 

which could explain why U.S. casualty estimates are lower than those from 

other sources mentioned previously. Three factors complicate the estimation process: 

• An irregular enemy. The nature of the enemy in Pakistan, Afghanistan, 

and other locations can create challenges in positive identification (PID) 

of enemy combatants and discriminating between the civilian population and the enemy. These challenges result partly from the irregular 

nature of combatants (e.g., a lack of uniforms and standard equipment 

that limits the visual signature for PID, especially within an armed 

culture) and their practices of colocating with the local population, 

using noncombatants as human shields, and claiming—and creating—

civilian casualties. 

• Misidentification. These casualties occur when U.S. forces mistakenly 

identify civilians as enemy combatants. In engagements involving misidentification, because the casualties are believed to be combatants, they 

are not reported as civilians, and the reality is discovered later if, in fact, 

it is ever discovered by the United States. 
• Inaccurate assessments based on air surveillance. The process of 

determining the effects of an engagement on the enemy and the surroundings—typically called battle damage assessments (BDA)—

should include an assessment of any civilian toll from the engagement. 

However, given the irregular enemy and possibility of misidentification, 

this evaluation of civilian toll can be difficult to determine accurately. 

This is especially the case in situations when U.S. forces rely primarily 

on air surveillance for this assessment. Air assessments are likely the 

predominant method for BDA in the U.S. drone campaign.

These three factors are not specific to actions in Pakistan; rather, they are 

common to many counterterrorism scenarios where airpower is used. These 

factors are illustrated in the following two incidents from Afghanistan.1

DEH BALA AIRSTRIKE 

On 5 July 2008, U.S. military forces targeted airstrikes against what they 

believed to be enemy combatants in a wooded area in Deh Bala District, 

Nangarhar Province. Shortly thereafter, the local population and media 

reports claimed that high levels of civilian casualties had resulted from the 

airstrikes.2 A U.S. military spokesman immediately denied that there were 

civilian casualties: 

Whenever we do an airstrike the first thing they’re going to cry is 

“airstrike killed civilians” when the missile actually struck mili1

 While processes and operating forces in Afghanistan can differ from those in drone operations 

in Pakistan, these operations share common elements. Also, Afghanistan holds the advantage of 

established reporting and investigative processes for civilian casualty incidents, facilitating more 

effective analysis.

2

 Troops in Contact: Airstrikes and Civilian Deaths in Afghanistan (New York: Human Rights 

Watch, 2008), http://www.hrw.org/reports/2008/afghanistan0908/.

Discrepancies in Civilian Casualty Estimates | 13
tant extremists we were targeting in the first place. At this time we 

don’t believe we’ve harmed anyone except for the combatants.3

Later, information surfaced that a group of civilians, walking from one 

village to another to participate in a wedding, was mistaken for combatants and engaged. Civilians were indeed killed by the U.S. airstrikes, but 

because the government believed them to be enemy combatants, the civilian toll was not acknowledged until locals found and identified the bodies. 

A subsequent U.S. inquiry confirmed that dozens of civilian casualties resulted from the airstrike.4

FARAH AIRSTRIKE

On 4 May 2009, Afghan security forces moved into the vicinity of Shewan, 

Farah Province, to confront a large group of Taliban that had moved into 

the area. The Afghan forces were ambushed, and a small contingent of 

U.S. advisors called for reinforcements from close air support and a nearby 

U.S. Marine quick reaction force (QRF). The Marines used airstrikes first 

to counter enemy attacks and then to target enemy combatants behind the 

line of battle, including several engagements at compounds.5 U.S. forces 

conducted BDAs of the airstrikes that impacted close to them, but they did 

not inspect the strikes on the compounds in the village due to concerns 

over the safety of friendly forces.6

Reports of civilian casualties quickly emerged in the media, but the 

U.S. government initially denied the veracity of the reports. “It is certainly 

3

 Amir Shah and Jason Straziuso, “Afghan Officials: U.S. Missiles Killed 27 Civilians,” USA 

Today, 6 July 2008, http://usatoday30.usatoday.com/news/world/2008-07-06-1051356149_x

.htm.

4

 See Troops in Contact.

5

 U.S. Central Command (CENTCOM) Public Affairs, USCENTCOM’s Unclassified Executive 

Summary: U.S. Central Command Investigation into Civilian Casualties in Farah Province, Afghanistan on 4 May 2009 (MacDill Air Force Base, Tampa, FL: CENTCOM Headquarters, 2009).

6

 In their role as a QRF, the U.S. Marines did not have the supplies to stay in the area for a 

prolonged period of time. Also, they believed the Afghan force was in the lead and would be 

responsible for necessary follow-on actions for the incident.

14 | Drone Strikes in Pakistan
Discrepancies in Civilian Casualty Estimates | 15

a technique of the Taliban and other insurgent groups to claim civilian casualties at every event,” said International Security Assistance Force (ISAF) 

Commander General David D. McKiernan on 6 May.7 On 15 May, U.S. 

Marine Corps Commandant General James T. Conway noted that, “We 

believe that there were families who were killed by the Taliban with grenades and rifle fire that were then paraded about and shown as casualties 

from the air strike.”8

Shortly after the initial incident, U.S. Central Command (CENTCOM) 

assembled an investigation team and released an interim report on 15 May, 

confirming that dozens of civilian casualties had in fact occurred due to 

the U.S. airstrikes. The team’s final report and unclassified summary were 

released shortly thereafter.9

These two examples illustrate the issues that develop when the United 

States conducts airstrikes that harm civilians and yet remain ignorant of 

the fact due to misidentification, inaccurate or missing BDAs, and the 

nature of the enemy. In Afghanistan, after a number of high-profile events, 

the American military addressed these challenges through additional guidance and procedures. For example, U.S. forces frequently conducted BDAs 

using ground forces when feasible, since ground-based assessments were 

far less likely to miss instances of civilian harm. 

MISIDENTIFICATION: IMPACT ON CIVILIAN CASUALTIES 

AND ASSESSMENTS

Though all three factors described above—an irregular enemy, misidentifications, and inaccurate assessments of resultant harm—complicate the assessment of civilian casualties in operations, the issue of misidentification 

is particularly important. In previous analyses of civilian casualties in Afghanistan, the misidentification of civilians as the enemy was the basis for 

7

 Donna Miles, “Joint Investigation Aims to Get to Bottom of Afghanistan Incident,” DOD 

News, 6 May 2009, archive.defense.gov/news/newsarticle.aspx?id=54224.

8

 Gen James T. Conway, “Remarks by the Commandant of the Marine Corps” (speech, Center 

for Strategic and International Studies, Washington, DC, 15 May 2009).

9

 U.S. CENTCOM’s Unclassified Executive Summary.
the majority of civilian casualty incidents and contributed to a lack of recognition of actual civilian tolls from operations.10 Two issues contributed to 

this misidentification:

• Misinterpretation of actions or characteristics. In some cases, civilians 

were targeted because their behavior appeared threatening or their 

appearance marked them as enemy forces. For example, a number of 

Afghan civilians were killed because they appeared to be emplacing 

improvised explosive devices (IEDs). After they were engaged, the 

force discovered the Afghans were actually digging drainage ditches 

or doing other agricultural work. In other cases, individuals were targeted because they were suspected of carrying weapons. After the 

engagement, it came to light that they were holding farming tools or 

other large objects. And while being armed is no guarantee of nefarious activity, many civilians—and even Afghan forces—are accidentally 

killed for this reason. 

• Guilt by association. In some incidents, enemy forces were located 

in close proximity to civilians who were not directly participating in 

hostilities. However, when U.S. forces engaged the enemy forces, 

the nearby civilians were also believed to be enemy and killed or 

wounded. 

A single incident in Uruzgan Province in Afghanistan from 2010 illustrates 

both of these considerations. U.S. forces believed two civilian vehicles 

carried Taliban fighters with the intent to attack a U.S. Special Operations 

Forces (SOF) element in the area. A U.S. Predator drone crew misidentified 

these vehicles as enemy forces through misinterpretation of their actions. 

When a third vehicle joined the other two, the Predator crew considered 

the third vehicle to be enemy due to guilt by association. Based on this mis10 Larry Lewis, Reducing and Mitigating Civilian Casualties: Enduring Lessons (Suffolk, VA: Joint 

Civilian Casualty Study by Joint and Coalition Operational Analysis [JCOA], 2013).

16 | Drone Strikes in Pakistan
identification, a U.S. helicopter later engaged the three vehicles, resulting 

in dozens of civilian casualties.11

These mechanisms of misidentification can also impact assessments 

of civilian casualties. However, just because civilians are colocated with 

enemy forces does not mean that the engagement is not permissible. Under 

U.S. and international humanitarian laws, such as the Geneva Conventions, force may be used against an enemy as long as the harm to civilians is not excessive relative to the gained advantage from the operation.12

These civilian tolls should be properly acknowledged in follow-on reporting and assessments. In Afghanistan, the U.S. military initially counted 

misidentified civilians as enemy personnel. This error was recognized in 

a subsequent assessment process that examined underlying assumptions; 

the misidentified individuals were then counted as civilian. This process is 

illustrated by the Deh Bala and Farah airstrikes discussed earlier. 

A number of independent reports describe drone strikes against buildings, convoys of vehicles, and groups of individuals. In these cases, individuals should not be counted as enemy personnel simply based on proximity 

to a known target. One overarching principle that should inform both engagements and assessments is a tenet of IHL used by international military forces in Afghanistan as well as by the UN: “In case of doubt whether 

a person is a civilian, that person shall be considered to be a civilian.”13

Media reports suggest that this has not been the approach guiding official 

U.S. assessments of civilian casualties in the drone campaign, with such 

descriptions as: the United States “counts all military-age males in a strike 

zone as combatants . . . unless there is explicit intelligence posthumously 

11 This incident is discussed in more detail in chapter 15.

12 The U.S. military summarized customary international humanitarian law in this respect:

“. . . loss of life and damage to property must not be out of proportion to the military advantage to be gained.” The Law of Land Warfare, FM 27-10 (Washington, DC: 1956, modified by 

Change No. 1, 1976 rev.).

13 See Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the 

Protection of Victims of International Armed Conflicts (Protocol I) (New York: 1977), hereafter Protocol Additional to the Geneva Conventions of 12 August 1949, https://www.icrc.org

/ihl/WebART/470-750064?OpenDocument.

Discrepancies in Civilian Casualty Estimates | 17
proving them innocent.”14 If true, this approach is inconsistent with both 

international law and U.S. military practice in Afghanistan, and would 

lead to an inaccurate picture of the civilian toll from those strikes.15

The U.S. drone campaign is characterized by airborne target identification and BDA. These factors create opportunities for misidentification 

in irregular warfare, and increase the likelihood that civilians, including 

those misidentified as enemy, are not discovered by the American government. Thus, it is likely that the United States does not have a true picture 

of the actual scale of civilian harm from its drone campaign. Regarding operations in Pakistan and Yemen, the presence of civilian casualties reported 

in the media has frequently been denied. This resembles the situation in 

Afghanistan prior to mid-2009, where U.S. and international military commanders were frequently confronted by reports of civilian casualties that 

differed from their own initial reports, as the above examples illustrate. 

It is important to note that the challenge of recognizing civilian harm 

from drone strikes in Pakistan can be even more challenging than it was 

in Afghanistan, due to the reduced number of U.S. boots on the ground 

and limited communication with local forces and communities. That said, 

the United States could find ways to compensate for these additional challenges, for example, by partnering with third-party organizations with a 

presence on the ground or through increased reliance on leveraging human 

intelligence (HUMINT) to cue other intelligence sources to enhance BDA. 

In both Afghanistan and the current drone campaign in Pakistan, the 

stated desire of the United States to minimize civilian harm was evidenced 

by such statements as: “We’ve done everything possible . . . to reduce any 

risk to that civilian population.”16 However, the military’s ability to do ev14 Jo Becker and Scott Shane, “Secret ‘Kill List’ Proves a Test of Obama’s Principles and Will,” 

New York Times, 29 May 2012, http://www.nytimes.com/2012/05/29/world/obamas-leadership

-in-war-on-al-qaeda.html?pagewanted=all.

15 While the legal framework for counterterrorism (CT) strikes in Pakistan is in debate, the international norm of the default status of individuals to be civilians in case of uncertainty would 

appear to be valuable to preserve. Erosion of this norm could eliminate the requirement for 

discrimination of targets in the context of CT operations.

16 Dilanian, “Brennan Defends U.S. Drone Attacks Despite Risks to Civilians.”

18 | Drone Strikes in Pakistan
erything possible to avert civilian harm is limited by its capacity to consistently recognize instances of civilian harm. If the problem of civilian 

harm is not recognized and well understood, then the actual scale of the 

damage done will be misunderstood and measures will not be put in place 

to address it effectively. Thus, an assessment process to quantify levels of 

civilian harm is needed to ensure that U.S. efforts truly minimize civilian 

harm.

Discrepancies in Civilian Casualty Estimates | 19
CHAPTER 4

PLATFORM PRECISION OR COMPREHENSIVE PROCESS?

Public statements defending drone use often comment on the precise 

nature of a platform with the ability to engage intended targets without 

causing civilian harm. For example, one statement in the public debate on 

drones declares: “Where civilian casualties cannot be avoided, they must 

be minimized. This is what drone strikes do.”1 This viewpoint suggests 

that using the drone platform to engage the enemy constitutes all the steps 

America needs to minimize civilian harm. But, in fact, this statement is 

incorrect for several reasons: it mistakes platform precision for a comprehensive process that minimizes civilian casualties; and it is contradicted by 

operational data. 

PRECISION VERSUS PROCESS

Although drones offer desirable capabilities, such as precision weapons, 

persistence, and full-motion capabilities for targeting and screening of collateral damage, these technical elements alone do not necessarily translate 

1

 Avery Plaw, “Drone Strikes Save Lives, American and Other,” New York Times, 14 November 2012, 

http://www.nytimes.com/roomfordebate/2012/09/25/do-drone-attacks-do-more-harm-than

-good/drone-strikes-save-lives-american-and-other.

20
Platform Precision or Comprehensive Process? | 21

to surgical precision and the minimization of civilian casualties. Other 

factors also influence the likelihood of civilian casualties.2

The importance of the overall process—the collective impact of the different factors shaping individual engagement decisions on civilian casualty 

reduction—was discussed previously in the 2010 Joint Civilian Casualty 

Study (JCCS), which examined operations in Afghanistan for the U.S. military. A comprehensive approach to civilian casualty reduction and mitigation was envisioned, including a number of different steps in the civilian 

casualty “lifecycle” (figure 2):

• Prepare: doctrine, professional military education, predeployment 

training and equipping, exercises, training, and adaptation 

• Plan: mission planning, rehearsals, intelligence, pattern of life, and 

other information, as well as shaping the environment 

• Employ: the use of force, tactical alternatives, the rules of engagement, 

and tactical directives 

• Assess: battle damage assessments, data collection, and data sharing

• Respond: medical response, key leader engagement, media engagement, providing compensation, other information activities 

• Learn: reporting, data management, data analysis, after action reports, 

investigations, and capturing and disseminating lessons3

As the lifecycle illustrates, minimizing civilian casualties is less a matter 

of platform or ordnance selection than using an approach that considers 

factors leading to civilian casualties and then effectively takes them into 

account. In particular, the importance of “learning” to minimizing civilian 

2

 The prolonged use of the AGM-114 Hellfire air-to-surface missile (ASM) in drone strikes shows 

both adaptability with existing capabilities—using a missile originally designed for helicopters to 

attack tanks—and the occasionally slow development of military capabilities to reduce civilian 

casualties. See Lewis, Reducing and Mitigating Civilian Casualties.

3

 Ibid.
casualties during operations is missed when attention is instead focused on 

the platform rather than the process. The significance of learning to reduce 

civilian casualties can be seen in the decrease of Iraqi casualties from escalation of force incidents in 2005 and 2006.4

 Lieutenant General Peter W. 

Chiarelli, the Multinational Corps–Iraq commander, helped focus U.S. 

forces on primary causal factors to learn from past incidents and not repeat 

the same mistakes. Civilian casualties dropped significantly as a result.5

Similarly, but on a larger scale, commanders in Afghanistan began tracking 

civilian casualties for all types of Coalition-caused incidents, using analysis to identify causal factors and to reshape their guidance. For example, 

analysis of Coalition air operations, documented in the JCCS report, led to 

changes in the 2010 Commander, International Security Assistance Force 

4

 Thom Shanker, “New Guidelines Aim to Reduce Civilian Deaths in Iraq,” New York Times, 

21 June 2006, http://www.nytimes.com/2006/06/21/world/middleeast/21cnd-casualties.html

?pagewanted=print&_r=0; and Nancy A. Youssef, “U.S. Working to Reduce Civilian Casualties in 

Iraq,” McClatchy DC, 21 June 2006, http://www.mcclatchydc.com/latest-news/article24455704

.html.

5

 Lewis, Reducing and Mitigating Civilian Casualties.

Prepare

• Predeployment training

• Doctrine

• Education

Plan

• Mission planning

• Coordination

• Rehearsals

• Intelligence 

 and information

Employ

• Application of guidance 

 for the use of force

• Tactical patience

• Tactical alternatives

Assess

• Hold the ground

• Battle damage assessment

• Establish command 

 and control

• Reporting

Respond

• Medical

• Key leader engagement

• Media engagement

• Amends and apologies

Learn

• After action reports

• Investigations

• Dissemination of lessons 

 to force

• Feedback to institutions

Figure 2. Comprehensive process for reducing and mitigating civilian harm

22 | Drone Strikes in Pakistan
Platform Precision or Comprehensive Process? | 23

(COMISAF) Tactical Directive, which then was seen to reduce the lethality 

of civilian casualty incidents.6 Overall, international observers, such as the 

UN, have acknowledged that the United States has made significant progress in reducing Coalition-caused civilian casualties in Afghanistan. 

While the progress reducing civilian casualties in Afghanistan shows 

what is possible, to date, the changes put into place remained focused 

largely on supporting operations there. In 2013, however, the U.S. military 

proactively began to focus on institutionalizing key enduring lessons for 

the future force. Though, sharing lessons in different operations and among 

allied countries is less apparent. For example, key lessons and best practices from Afghanistan were not known to North Atlantic Treat Organization 

(NATO) forces in Libya, forcing discovery learning on the ground. In addition, it is unclear whether lessons from Afghanistan have been applied to 

the U.S. drone campaign in Pakistan and elsewhere.

OPERATIONAL DATA: 

DRONES MORE LIKELY TO CAUSE CIVILIAN HARM

Operational data confirms that reducing civilian casualties depends on 

the entire engagement process, including planning and training considerations, not simply on the characteristics of the weapon platform. Analysis 

of data from Afghanistan showed that several forms of attack, including 

engagements by manned air platforms, were less likely to cause civilian casualties than drone strikes, highlighting the fact that platform characteristics alone are not the driver of a decreased likelihood of civilian casualties.7

The discussion of process shows how analysis and assessment can 

provide insight into trends and highlight the root causes of civilian casualty incidents. Later, we will present a model for an assessment process, 

including root cause analysis of a real-world civilian casualty incident, and 

outline how the process can be used to better minimize civilian harm.

6

 Ibid.

7 Drone Strikes: Civilian Casualty Considerations (Suffolk, VA: JCOA, 2013).
24

CHAPTER 5

THE DRONE CAMPAIGN AND CIVILIAN HARM 

Congress has debated whether the drone campaign should be shifted entirely to the U.S military or whether it should continue to be conducted, 

in part, by another element of the U.S. government.1 Many considerations must go into this decision, particularly the ability of the organization leading the drone campaign to minimize civilian harm. One question 

that could be asked is: how well is the current drone campaign in Pakistan 

doing in minimizing civilian harm? 

Table 1 shows the total number of drone strikes (engagements), the 

numbers of civilians killed, and the number of strikes that resulted in civilian casualties (civilian casualty incidents) from two data sources—BIJ 

and NAF. For NAF, two sets of numbers are provided: one includes only 

confirmed civilians (NAF); and one includes unknown casualties treated as 

dictated per international law (NAF-2). 

Table 1 indicates that, on average, one civilian has been killed by each 

drone strike since the inception of the campaign. BIJ and the adjusted NAF 

databases report the same rates of strikes causing civilian casualties, with 

one in every five strikes killing civilians. For these strikes, between five and 

six civilians are killed on average (figure 3). 

1

 Dylan Matthews, “Everything You Need to Know about the Drone Debate, in One FAQ,” 

Washington Post (Wonkblog), 8 March 2013, http://www.washingtonpost.com/news/wonkblog

/wp/2013/03/08/everything-you-need-to-know-about-the-drone-debate-in-one-faq/.
The Drone Campaign and Civilian Harm | 25

Of course, the U.S. drone campaign in Pakistan was not consistent in the number of strikes over time. It was carried out at a low initial 

rate, increased significantly in 2008, peaked in 2010, and then tapered off 

gradually after 2010 (figure 3). Accordingly, it is instructive to examine 

characteristics from each period. 

Pre-2008 strikes were characterized by very few attacks, with a high 

likelihood of civilian casualties per engagement (64 percent and 70 percent 

for BIJ and the adjusted NAF, respectively) and a high average civilian toll 

for incidents where civilians were killed. Starting in 2008–9, the number of 

strikes increased significantly, and the rate of civilian deaths per engagement dropped significantly (34 percent for BIJ compared to 32 percent for 

the adjusted NAF). Starting in 2010, the rate of engagements causing civilian deaths drops to approximately 13 percent for BIJ and 14 percent for 

the adjusted NAF. During this time, an average of one civilian was killed 

for about every two drone strikes, and the civilian toll for incidents that 

caused civilian casualties was about four per incident.

Table 1. Overall statistics for drone strikes in Pakistan, 2004–13

BIJ NAF NAF-2

Overall drone strikes (engagements) 383 370 370

Civilians killed (CIV K) 416 258 456

Strikes where CIV were killed (CIV K 

incidents) 75 32 75

Average CIV K per engagement 1.1 0.7 1.2

CIV K incidents per engagement (percent) 20 9 20

CIV K per CIV K incident 5.5 8.1 6.1

Source: Bureau of Investigative Journalism and New America Foundation, data for 2004–13.
Figure 4. Percent of operations resulting in civilian deaths per year

Source: Bureau of Investigative Journalism and New America Foundation, data for 2004–13.

0

20

40

60

80

100

2004 2005 2006 2007 2008

Year of operation

Percent

NAF data

NAF-2 data

BIJ data

2009 2010 2011 2012 2013

26 | Drone Strikes in Pakistan

Figure 3. Number of drone strikes in Pakistan per year

Source: Bureau of Investigative Journalism and New America Foundation, data for 2004–13.

0

30

60

90

120

150

2004 2005 2006 2007 2008

Year of strike

Number fo strikes

NAF data

BIJ data

2009 2010 2011 2012 2013
For our discussion, it is also helpful to plot key metrics over time. The 

percent of operations resulting in civilian deaths offers a useful metric 

showing the average likelihood that a drone strike will result in civilian 

deaths (figure 4).

As seen above, the rate of civilian deaths per drone strike decreased 

over time, with rates generally less than 20 percent starting in 2010 for 

both BIJ and the adjusted NAF, and less than 10 percent for 2013. Note 

the generally close agreement between BIJ and the adjusted NAF where 

“unknown” status casualties are included, treating them as civilian as prescribed in international law.2

 Collectively, U.S. drone strikes have become 

less likely to cause civilian deaths over time. 

However, it appears that there is still room for improvement. These 

civilian casualty rates for Pakistan are significantly higher than those for 

drone and overall CT operations in Afghanistan conducted by U.S. and international forces. While rates for the two countries are not necessarily directly comparable, the operations in Afghanistan illustrate that lower rates 

can be achieved during CT operations in general.

ASSESSMENT: 

A KEY ELEMENT IN DEMONSTRATING CONCERN

Overall, it is both possible and worthwhile for the United States to conduct 

an independent assessment of civilian casualties resulting from drone 

strikes in Afghanistan, Pakistan, and Yemen. The results of this assessment 

can both inform refinements that reduce civilian harm in the future, as well 

as provide estimates that allow the legislative and executive branches to 

2

 Media and other reporting on civilian casualties using NAF tends to neglect the “unknown” 

category of casualties. For example, CNN reported that “today, for the first time, the estimated 

civilian death rate is at or close to zero” when, in fact, the adjusted rate was higher than in 

the previous two years. Peter Bergen and Jennifer Rowland, “Civilian Casualties Plummet in 

Drone Strikes,” CNN News, 14 July 2012, http://www.cnn.com/2012/07/13/opinion/bergen

-civilian-casualties/. In another example, Brookings uses NAF as its data source on Pakistan drone 

strikes in its Afghanistan indicators publication; and these totals include only confirmed civilians. Ian S. Livingston and Michael O’Hanlon, Afghanistan Index: Also Including Selected Data on 

Pakistan (Washington, DC: Brookings, 2013), http://www.brookings.edu/wp-content/uploads

/2016/07/index20130827.pdf

The Drone Campaign and Civilian Harm | 27
support greater transparency and enable improved oversight of these operations. In addition, assessment ensures that official U.S. statements are 

in line with operational realities, helping to guard the reputation of the 

nation. 

DEMONSTRATING CONCERN 

THROUGH CONSEQUENCE MANAGEMENT 

In addition to assessment, a process could be put into place to respond to 

U.S.-caused civilian casualties with consequence management actions, including restitution, when they occur from such strikes. This practice could 

use existing programs in a way similar to U.S. measures taken in Afghanistan, and those consistent with recent legislation granting authority for ex 

gratia payments for civilian casualties during military operations. 

In Afghanistan since 2009, U.S. forces placed attention not only on reducing civilian casualties, but also responding to them in a moral and operationally effective way when they occurred. When civilian harm occurred 

as an unintentional result of U.S. operations, the government typically 

offered an apology. Providing monetary payments or other compensation, 

typically offered without admission of legal culpability, assisted families 

dealing with the financial and emotional components of their loss and reinforced the country’s reputation as a nation that respects and upholds the 

lives of civilians.3 This process also yielded operational benefits for U.S. 

forces by way of increased freedom of movement and willing support from 

the population.4

In Pakistan, the United States offers a program that aids communities 

impacted by conflict. The Conflict Victims Support Project provides rehabilitation and livelihood assistance among other things.5

 However, U.S. 

drone strike victims and their families are not currently covered by this 

3

 This is consistent with a number of operations over the past century, where the United States 

offered compensation or aid to mitigate the impact of its actions.

4

 Lewis, Reducing and Mitigating Civilian Casualties.

5

 For more information on this U.S. Agency for International Development (USAID) program, 

see https://scms.usaid.gov/sites/default/files/documents/1871/CVSP.pdf.

28 | Drone Strikes in Pakistan
The Drone Campaign and Civilian Harm | 29

program. Similarly, U.S. aid is not available for conflict victims in Yemen 

or other locations where drones also operate.6 Such an effort could be conducted in partnership with other organizations to avoid a direct U.S. role, 

for example, the government of Pakistan or nongovernmental organizations. Besides offering U.S. concern for civilians, such a program would 

also support U.S. efforts to accurately identify and estimate civilian casualties. Further, adversaries that routinely exploit U.S.-caused casualties 

to discredit or tarnish America’s reputation, and use this issue to solicit 

support for their cause, would find their case weakened if the nation could 

provide restitution for civilian harm it caused.

Collectively, an assessment process for civilian harm, coupled with 

measures to address such harm when it is caused, would further demonstrate U.S. concern for civilians caught in the middle of conflict, while 

also reducing grievances that exacerbate threats to the United States in the 

longer term. These initiatives could help the nation demonstrate its stated 

commitment to the responsible use of force and to minimize civilian harm 

in its operations.

6

 While an aid program does not exist, the federal government did budget $64 million for fiscal 

year 2014 in what it calls “counterterrorism security assistance.” See Greg Miller, “Yemini Victims 

of U.S. Military Drone Strike Get More Than $1 Million in Compensation,” Washington Post, 

18 August 2014, https://www.washingtonpost.com/world/national-security/yemeni-victims-of

-us-military-drone-strike-get-more-than-1million-in-compensation/2014/08/18/670926f0

-26e4-11e4-8593-da634b334390_story.html. See also Scott Shane, “Families of Drone 

Strike Victims in Yemen File Suit in Washington,” New York Times, 8 June 2015, http://www

.nytimes.com/2015/06/09/world/middleeast/families-of-drone-strike-victims-in-yemen-file

-suit-in-washington.html?_r=0.
30

CHAPTER 6

CONCLUSIONS AND RECOMMENDATIONS

The public debate on the drone campaign has unfortunately focused on 

the platform rather than the key issues at play: the legality of the use of 

force outside of declared theaters of conflict, and the ability of the United 

States to limit the civilian toll from the use of force in those operations.1

These two issues are distinct, however, and can be debated and addressed 

separately: first, the legal issue with a long timeline to resolve; and second, 

addressed here, a policy issue within the U.S. government’s ability to act 

quickly. Efforts to limit the civilian toll of the U.S. drone campaign do not 

need to be delayed simply because of disputes over other aspects of the 

drone campaign. Precisely, the government could immediately undertake 

an independent assessment of its drone operations in Pakistan, including 

a specific priority to analyze civilian casualties, to promote civilian harm 

response, and to address challenges in the targeting process that may put 

civilians in unnecessary danger.

Such a move could have several benefits. Working to reduce civilian 

casualties in U.S. operations also decreases the extent of radicalization and 

1

 While there are other issues that can be debated, such as the appropriate role of automated 

systems in warfare, these two issues seem to be the primary concerns in the current public debate 

on the U.S. drone campaign. In her blog, Charli Carpenter discusses additional considerations 

for decomposing the key issues under debate with regard to the use of drones. See “Parsing 

the Anti-Drone Debate,” Duck of Minerva (blog), 12 November 2013, http://duckofminerva

.com/2013/11/parsing-the-anti-drone-debate.html.
support of threats to the nation and its interests. At the same time, operations with lower levels of civilian casualties would support freedom of 

action in future operations, promoting the ability to respond to imminent 

threats over the long term. Such an effort could also help fulfill the U.S. 

commitment to minimize civilian harm as a result of its operations. This 

alignment of practice and principle reinforces America’s moral authority, 

enabling its continued global leadership.

RECOMMENDATIONS

First, conduct an independent U.S. government review of civilian harm in 

drone strikes, including a revised estimate of civilian casualties. U.S. drone 

strikes, past and present, should be analyzed to identify both levels and 

root causes of civilian harm, particularly: 

• Determine numbers and trends: the government should review possible civilian harm in cases where credible evidence of such harm 

exists. This review might include information sources available in the 

states, such as video feeds and available intelligence, as well as those 

provided by other government and international organizations concerning these incidents. Such reviews were done for some instances in 

Afghanistan; with modifications, a similar process is feasible for U.S. 

drone strikes in Pakistan. These numbers can then be used to determine trends, similar to what was done here, providing a baseline assessment of possible progress and highlighting areas of particular 

concern. To be consistent with international law, data should include 

both confirmed civilians and casualties whose status has not been conclusively determined. 

• Assess root causes of civilian harm: a key element to reducing civilian casualties in Afghanistan was the analysis of individual incidents 

to determine causal factors. When these factors were considered collectively, they focused efforts for reducing civilian harm to areas that were 

most productive. This process, which was conducted for ISAF and Operation Enduring Freedom commands, could easily be replicated for 

Conclusions and Recommendations | 31
the U.S. drone campaign. A review similar to a safety investigation by 

the U.S. military could be conducted for instances of possible civilian 

harm to determine the likelihood of such harm and the causal factors 

for the incident. Periodic reviews would then consider these causal 

factors and identify ways to systematically address them. 

Second, make civilian harm a component of congressional oversight for 

drone operations. Congress plays a role in shaping and validating U.S. 

policy through its oversight activities. For any operation that involves the 

use of force, the issue of civilian casualties remains a critical component to 

consider, as recent history has shown that civilian harm can derail a military campaign or undermine U.S. objectives if not handled effectively.2

 The 

importance of this issue is only likely to increase due to the growing transparency of overseas operations, greater scrutiny by external actors, higher 

expectations for the United States and its conduct of operations, and exploitation of civilian casualties by others to undermine the nation and oppose 

its interests. These realities point to the need for Congress to monitor civilian harm in periodic operational assessments, along with other appropriate 

indicators of mission effectiveness. 

Third, apply best practices for civilian casualty reduction to the U.S. 

drone campaign. ISAF and U.S. operations in Afghanistan have made significant progress in reducing civilian casualties while maintaining mission 

effectiveness, including development of revised training, doctrine, tracking 

and analysis systems, weapons, and formalized responses to civilian harm. 

A number of these best practices and lessons could be applied to the drone 

activities outside Afghanistan. U.S. government elements conducting this 

campaign, including leaders and those responsible for executing operations, should seek out these lessons. The U.S. military’s J7 Joint Force De2

 Besides the issue of civilian casualties becoming toxic in Afghanistan, civilian casualties also 

harmed CT operations in Iraq in 2009 and drove the development of restrictive policy guidance for those operations in Pakistan and Yemen, such as those in the Presidential Policy Guidance given on 23 May 2013. See White House, Office of the Press Secretary, “Fact Sheet: The 

President’s May 23 Speech on Counterterrorism,” https://www.whitehouse.gov/the-press-office

/2013/05/23/fact-sheet-president-s-may-23-speech-counterterrorism. 

32 | Drone Strikes in Pakistan
Conclusions and Recommendations | 33

velopment, which recently led the Joint Staff Civilian Casualties (CIVCAS) 

Working Group, is a good source for these lessons.3

From their perspective, it is critical to resolve previously identified 

challenges associated with drones and civilian casualties, as observed in 

Afghanistan operations. Applying lessons learned to the drone campaign 

requires a focus on previous analysis of U.S. and Coalition drone/UAV 

operations in Afghanistan, but also examining to what extent the same 

lessons and contributing factors apply. These specific areas should be addressed to ensure that the U.S. military can minimize the risk of civilian 

casualties from drone strikes, since civilian casualty rates for drone strikes 

were 10 times higher than that for manned aircraft and other types of 

engagements.4

Fourth, expand U.S. programs for victims of conflict to include the 

drone campaign. For example, the government routinely offered monetary 

payments, livelihood aid, and medical assistance to civilians harmed by 

combat operations in Iraq and Afghanistan. Providing similar assistance 

to the families of drone strike victims would provide humanitarian benefits to those suffering from U.S. actions, reinforcing the reputation of the 

United States. A policy of assistance would also undercut the development 

of grievances and exploitation of U.S.-caused casualties in war, providing 

longer term security benefits. 

3

 For more information about J7 Joint Force Development, see http://www.jcs.mil/Directorates

/J7%7CJointForceDevelopment.aspx.

4

 Sarah Holewinski and Larry Lewis, “Five Ways Obama Can Fix Drones Right Now,” Defense 

One, 6 November 2013, http://www.defenseone.com/ideas/2013/11/five-ways-obama-can-fix

-drones-right-now/73304.

T H E F U T U R E 

OF DRONE STRIKES

A FRAMEWORK FOR 

ANALYZING POLICY OPTIONS 

BY DIANE M. VAVRICHEK

PART II

CHAPTER 7

INTRODUCTION

Since the terrorist attacks on 11 September 2001, a steady stream of terrorist plots have materialized against U.S. targets and citizens.1

 The public 

will likely never know how many attacks have been thwarted by law enforcement, the military, and the intelligence agencies, but the would-be 

“Christmas Day” and “Times Square” bombers and the Boston Marathon 

bombings make clear the gravity of the threat of terrorism.2 The U.S. government has been using a wide variety of methods in its fight to prevent 

terrorist attacks. One of those includes the use of armed drones.

UAVs, known colloquially as drones, have been used to carry out 

targeted killings since at least 2002, when the United States launched an 

1

 One report documented 60 terrorist plots against the United States from 11 September 2001 

through 2013. See Jessica Zuckerman, Steven P. Bucci, and James Jay Carafano, 60 Terrorist Plots Since 9/11: Continued Lessons in Domestic Counterterrorism, Special Report #137 on 

Terrorism (Washington, DC: Heritage Foundation, 2013), http://www.heritage.org/research

/reports/2013/07/60-terrorist-plots-since-911-continued-lessons-in-domestic-counterterrorism.

2

 The “Christmas Day” bomber, Umar Farouk Abdulmutallab, attempted to detonate a bomb 

hidden in his underwear during a flight to the United States in 2009. The “Times Square” bomber, Faisal Shahzad, attempted to detonate a car bomb in New York City’s Times Square in 2010. 

Both bombs failed to detonate, and the bombers were subsequently sentenced by U.S. courts to 

life in prison. See, for example, Zuckerman, Bucci, and Carafano, 60 Terrorist Plots Since 9/11. 

Two brothers, Dzhokhar and Tamerlan Tsarnaev, set off bombs that exploded near the finish line 

of the 2013 Boston Marathon. Tamerlan Tsarnaev was killed in a subsequent confrontation with 

police, and Dzhokhar was captured and convicted for the crime.

37
attack in Afghanistan against suspected al-Qaeda members.3

 Since then, 

targeted killings via drone strikes have become an integral piece of the U.S. 

campaigns Operation Enduring Freedom in Afghanistan, as well as against 

al-Qaeda and its associated terrorist groups, reportedly in Pakistan, Yemen, 

and Somalia.

The U.S. government claims that these strikes are effective. Indeed, in a 

2013 speech, President Obama stated: 

Dozens of highly skilled al Qaeda commanders, trainers, bomb 

makers and operatives have been taken off the battlefield. Plots 

have been disrupted that would have targeted international aviation, U.S. transit systems, European cities and our troops in Afghanistan. Simply put, these strikes have saved lives.4

Drones have proven to be almost an ideal tool for the United States in 

many respects. They can execute kinetic attacks while limiting collateral 

damage due to their accuracy and ability to surveil targets for hours to 

determine the presence of other people in the area before striking.5 They 

do not risk the life of a pilot and may be less expensive to operate than 

manned aircraft. Furthermore, drones enable targeted killing operations in 

locations where the United States does not have a presence on the ground.

Moreover, with the problems surrounding Guantánamo Bay Naval 

Base in Cuba, no other readily apparent long-term detention options available for dealing with captured terrorists, and the planned withdrawal of 

U.S. forces from large-scale combat operations, some proponents argue 

3

 Secretary of Defense Donald H. Rumsfeld, DOD News Briefing, 12 February 2002, https://

www.fas.org/irp/news/2002/02/dod021202.html, hereafter Rumsfeld Briefing.

4

 Obama, “Remarks by the President at the National Defense University.” 

5

 Despite these advantages, however, U.S. claims that drones are “surgical” in their ability to 

avoid civilian casualties seem not to be supported by operational data. The analysis of strikes in 

Afghanistan mentioned in part 1 showed that drone strikes were 10 times more likely to cause 

civilian casualties than strikes by manned aircraft.

38 | The Future of Drone Strikes
Introduction | 39

that drone strikes are becoming one of few remaining tools left to use in the 

U.S. counterterrorism (CT) mission.6

Yet the practice of using drones in targeted killing operations has 

become highly controversial, both within the United States and in the international community, for numerous reasons:

• The United States has only vaguely publicly explained its targeting 

processes and standards amid growing public pressure for increased 

transparency and accountability. The UN High Commissioner for 

Human Rights went so far as to note that, “[t]he current lack of transparency surrounding [the use of drone strikes] creates an accountability vacuum.”7

• There is controversy in the international community as to whether the 

practice is in accordance with international law, as detailed below.

• There is controversy within the United States around the authorization 

of the practice under domestic law, including debate over the 2001 Authorization for the Use of Military Force (AUMF) and the role of the 

War Powers Resolution.8

• Highly publicized incidents document that innocent people have been 

mistakenly killed.9

6

 See, for example, Max Fisher, “The Best Case for Drones I’ve Heard Yet,” Washington Post, 30 

December 2013, http://www.washingtonpost.com/blogs/worldviews/wp/2013/12/30/the-best

-case-for-drones-ive-ever-heard/.

7

 Navanethem Pillay, “Pillay Briefs Security Council on Protection of Civilians on Anniversary 

of Baghdad Bombing” (statement, Security Council, New York, 19 August 2013), http://www

.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=13642&LangID=E.

8

 Harold Hongju Koh, “Libya and War Powers” (testimony, U.S. Senate Committee on Foreign 

Relations Washington, DC, 28 June 2011), http://www.state.gov/s/l/releases/remarks/167250

.htm. These important debates fall outside the scope of this report.

9

 For example, Hakim Almasmari, “Yemen Says U.S. Drone Struck a Wedding Convoy, Killing 

14,” CNN News, 13 December 2013, http://www.cnn.com/2013/12/12/world/meast/yemen-u

-s-drone-wedding/.
40 | The Future of Drone Strikes

• The U.S. government targeted and killed an American citizen.10

• In addition to targeting identified individuals, the United States 

engages in “signature strikes” in which reportedly “a strike is authorized based on patterns of behavior in an area but where the identity of 

those who could be killed is not known.”11

• Other countries and their militaries are increasingly investing in 

drones; there is growing concern that the United States is not setting a 

standard for the use of drone strikes that commands sufficient restraint 

and transparency.

Because of these controversies, numerous proposals have been made for 

changes to U.S. drone strike policy from both within and outside of the 

government. Notably, in May 2013, President Obama issued guidance to 

implement certain changes, although that implementation has been at least 

partially blocked by Congress.12 We propose here a general framework 

for evaluating proposed policy options for drone strike operations, with a 

focus on tactical military effectiveness and the public perception of legitimacy, and how these two factors can influence the net effectiveness of the 

operations within the larger CT context. In its analytic approach to evaluating tactical effects and incorporating these with the implications of public 

10 The significant issues and controversies around targeting American citizens also fall outside 

the scope of this work.

11 “Letter from Congressmen John Conyers Jr., Jerrold Nadler, and Robert C. Scott to Attorney General Eric H. Holder Jr.,” 4 December 2012, http://www.propublica.org/documents

/item/605032-conyers-nadler-scott121204.

12 “Background Briefing by Senior Administration Officials on the President’s Speech on Counterterrorism” (briefing, White House, Office of the Press Secretary, 23 May 2013), www.whit

ehouse.gov/the-press-office/2013/05/23/background-briefing-senior-administration-officials

-presidents-speech-co, hereafter “Background Briefing”; and Eric Schmitt, “Congress Restricts 

Drones Program Shift,” New York Times, 16 January 2014, http://www.nytimes.com/2014/01/17

/us/politics/congress-restricts-drones-program-shift.html?_r=0; and John T. Bennett, “McCain 

Vows New Fight over Control of U.S. Armed Drone Program,” Defense News, 19 February 

2014.
perceptions, this framework addresses a gap in the current dialogue over 

drone strikes.

The next section of this work briefly outlines the framework and provides an overview of President Obama’s guidance and several other policy 

options. After that, methods for evaluating the effects of proposed changes 

to drone strike policy on the framework are presented in three areas: military effectiveness, legitimacy issues, and how these topics contribute to the 

net effectiveness of a policy option on the broader goals of U.S. security 

and counterterrorism. Before moving on, however, this section closes with 

a few words on applying the framework in more general settings.

APPLYING THE FRAMEWORK TO TARGETING IN GENERAL

In some sense, there is nothing special about the role that drones, as a 

weapons platform, play in this discussion; the framework below could be 

applied equally well in the broader context of remote targeting and even 

targeting in general. However, a broader application of this analysis to targeting in general should be performed with caution.

One reason to exercise caution is that, while this work considers drone 

strikes within the context of the CT campaign (and, to a lesser extent, that 

of the “hot” battlefield of Afghanistan), targeting operations could potentially take place within vastly different settings and as components of 

completely different missions. Any such situation should be considered individually and the framework adjusted appropriately.

Outside of the CT context, for example, the legal considerations for targeting operations may be different. The tactical-level processes may also 

differ; for instance, strike approval may not need to go up to the same 

level, and the review after the operation may not be conducted in the same 

way.

Moreover, outside of the CT context, the current public demand for 

greater legitimacy in targeting operations is minimal.13 No other types 

of targeting operations share the notoriety of drone strikes within the CT 

13 Note that many of the controversies listed above apply primarily to the CT context.

Introduction | 41
campaign, and it is not even clear that other targeting operations are conducted by the U.S. government with any frequency. As a result, the American public and the international community may afford such actions the 

benefit of the doubt, with respect to legitimacy. In contrast, drone strike 

operations continue to be reported, even as the American public’s sense 

of urgency for CT operations fades with each passing year since the 9/11 

terrorist attacks. It follows that the decision-making calculus surrounding 

the framework presented here—weighing the potential benefits of a policy 

option against the risks—would differ for targeting operations internal and 

external to the CT context.

Using different methods for targeting, even within the CT context, also 

involves relevant differences that could significantly change this decisionmaking calculus. Indeed, other methods of lethal targeting—manned 

aircraft, teams of Special Operations Forces (SOF), or ship-launched Tomahawk land attack missiles (TLAMs), for example—are not subject to the 

same controversy or pressure for greater legitimacy that apply to drones. 

This may be partly a question of perception: drones elicit a visceral negative reaction from many people, where even the word “drone” misleadingly suggests that the aircraft operates autonomously (one reason the 

term is despised by many in the military). The phenomenon of the public 

having such a negative perception of drones compared to other means of 

targeting is also a question of practice. In particular, the U.S. government 

uses drone strikes in circumstances and with a frequency that other platforms would not permit, as a result of factors such as that drones entail 

little risk to U.S. forces, may be less expensive than manned platforms, and 

do not require a ground presence. For all these reasons, the public demand 

for increased legitimacy for other platforms is limited, hence only a potentially modest public-perception benefit would be gained by implementing 

a policy option that improved, for instance, the transparency and oversight 

of operations. At the same time, tactical risks of any policy option would be 

magnified for targeting operations not done remotely, such as by a manned 

aircraft strike or a SOF team, because in those cases mission failure could 

42 | The Future of Drone Strikes
entail the loss of life of a military servicemember or lead to a risky rescue 

operation.

Hence the framework and analysis presented here may serve as a basis 

for evaluating policy options for other types of targeting operations, but 

care should be taken to adapt them as needed.

Introduction | 43
FRAMEWORK AND POLICY OPTIONS

This chapter introduces an analysis framework and presents the policy 

options that we will consider in the analysis below. 

A FRAMEWORK TO ANALYZE POLICY OPTIONS

The military aspects of the United States’ CT campaign can be analyzed 

along the following lines.

• Four components that become progressively broader in scope:

• Tactical military effectiveness (TME): the level of success of and 

considerations related to individual components of an operation;

• Operational military effectiveness (OME): the level of success of 

and considerations related to a larger-scale mission or operation, 

which may entail the actions of multiple units and platforms acting 

in concert;

• Strategic military effectiveness (SME): how well military operations contribute to the success of a military campaign, and how 

well those operations and that campaign further U.S. interests domestically and on the world stage; and

CHAPTER 8

44
Framework and Policy Options | 45

• Legitimacy: how U.S. operations, and the military campaign more 

broadly, are perceived by the American population and the international community.

• How these components influence one another and contribute to the 

net effectiveness of military actions on the terrorism threat against the 

United States and its citizens.

The effects of any changes in drone strike policy can therefore be anticipated by considering the impacts on these points. For example, a policy 

change could influence the TME of drone strikes by affecting the target or 

strike approval process. Depending on the types of operations in question, 

a drone strike policy change could influence OME if it affects the quantity 

and frequency with which drone strikes are carried out, or the coordination between drones and other units and platforms. A drone strike policy 

change could impact SME by contributing, for instance, to the elimination of a significant terrorist cell or to greater or lesser intelligence sharing 

between the United States and other countries. Finally, a policy change 

could impact the perception of the legitimacy of U.S. actions by affecting 

factors like transparency and accountability.

The discussion that follows focuses primarily on TME and legitimacy. 

A thorough analysis of the effects of drone strike policy changes on OME 

and SME is beyond the scope of this work, as OME depends heavily on 

the details and types of larger-scale operations in which drone strikes are 

employed, and SME is a very broad concept. These two components would 

be best addressed by policy makers, analysts, and operators by limiting the 

focus to those operations and strategic military effects that are of the greatest interest or importance in a given context.

Considerations for evaluating the impacts of a drone strike policy 

change on TME and perceived legitimacy are presented in the following chapters. These considerations are illustrated through discussions of 

several specific policy options, which will serve as a theme throughout this 

work.
POLICY OPTIONS

Numerous policy options for the use of drone strikes in the American CT 

campaign have been proposed during the last several years. The “military 

preference” policy, which was issued by President Obama in 2013 (though 

not yet fully implemented), is one of the policies we consider below. This 

section also uses as examples a few of the policy proposals put forth 

that the authors assess as the most viable and most likely to significantly address some of the problematic aspects of strike practices, namely to 

stand up an oversight body or “drone court” for drone strike operations 

and to release more detailed information regarding targeting processes and 

standards and/or targeted individuals. This chapter provides an introduction to these potential policy changes, as well as a preliminary discussion 

of some of their pros and cons.

MILITARY PREFERENCE

Drone strikes are currently Department of Defense (DOD)-conducted and 

other government agency (OGA)-conducted.1 However, OGA strikes have 

become controversial and have potentially negative legal implications, 

which are discussed below. In May 2013, President Obama issued classified 

guidance to implement what was described to the media as a “. . . preference that the United States military have the lead for the use of force” 

around the world, regardless of whether operations are in or outside of 

war zones.2 This guidance is referred to here as the “military preference” 

policy. However, in early 2014, Congress at least partially blocked this 

policy change through a classified annex to the federal budget, so movement in this direction is reportedly happening only very slowly.3

1

 Rumsfeld Briefing. 

2

 “Background Briefing.”

3

 Schmitt, “Congress Restricts Drones Program Shift”; Bennett, “McCain Vows New Fight 

over Control of U.S. Armed Drone Program”; and Mark Mazzetti, “Delays in Effort to Refocus 

CIA from Drone War,” New York Times, 5 April 2014, http://www.nytimes.com/2014/04/06

/world/delays-in-effort-to-refocus-cia-from-drone-war.html?_r=1.

46 | The Future of Drone Strikes
Framework and Policy Options | 47

The military preference policy, as described, would not prohibit OGAs 

from carrying out drone strikes, but should reduce the number of strikes 

they carry out (at least, as “lead” organizations). In practice, this would 

mean that missions previously completed by an OGA using drone strikes 

will instead be completed using drone strikes with DOD as the lead 

agency, be completed using means other than a drone strike (e.g., a small 

SOF team), or not be completed.

This policy guidance has been interpreted less literally by some to be a 

preference for drone strike operations to be done under Title 10 of the U.S. 

Code, which would be subtly distinct from the policy just described, and 

will also be considered in this analysis. In order to explain the distinction, 

further discussion is required.

Some confusion surrounds the legal regime that governs drone strike 

(and other related) operations, as evidenced by the common conflation 

of the military with Title 10 and of intelligence agencies with Title 50 of 

the U.S. Code. The subtlety that is often missed here centers on “covert 

actions,” which, generally speaking, are actions taken by a government 

that, at the time the action is carried out, are not intended to be acknowledged by the government.

Title 10 governs the authorities and mechanisms of the armed forces, 

while Title 50 covers the authorities of the intelligence agencies, intelligence collection, and other such secretive activities. There are important 

details to note with regard to the interplay between Title 10 and Title 50. 

Relevant to the discussion here is the fact that covert actions are covered 

in Title 50—which gives a more nuanced definition than that given above 

(see Appendix B)—and may only be executed if directed by a presidential 

finding, but their execution is not restricted to any particular agency. As a 

result, the military may carry out covert actions—including covert drone 

strikes—under Title 50. See Appendix A for a more detailed discussion. 

However, military doctrine provides a definition of covert action that is 

in some ways broader than the definition given by Title 50. In particular, 

any military action classified as a “traditional military activity” (TMA) is 
not covert under U.S. law and therefore falls under Title 10, even though it 

may be defined by doctrine as covert.

A further complication comes from the fact that the military may act in 

support of a Title 50 OGA operation. For example, this was the case for the 

raid that killed Osama bin Laden, which was conducted covertly by military forces, although the raid was technically a Central Intelligence Agency 

(CIA) operation.4 Since such an operation is not technically a DOD operation, this is a separate case from that of the military carrying out a Title 50 

operation as described above. This practice serves to further blur the association of government departments and agencies with sections of the U.S. 

Code.

As mentioned above, President Obama’s guidance has been interpreted 

by some to express a preference that drone strike operations be conducted 

under Title 10 as opposed to Title 50, which would indicate a preference for 

strikes to be conducted by the military and not to be done covertly (in the 

Title 50 sense), although it would not limit clandestine operations.5 While 

this interpretation may not be supported by the terse explanation issued by 

the White House, the guidance itself is classified and therefore unavailable 

for clarification and public debate.6 Nonetheless, the preference for drone 

strikes to be conducted under Title 10 is a logical one and worth exploring, 

regardless of whether it is a part of President Obama’s guidance.

Would there be a practical difference between the military preference 

and this “Title 10 preference”? This depends mainly on whether, in practice, the military engages in covert actions, as defined in Title 50 as the 

4

 “CIA Chief Panetta: Obama Made ‘Gutsy’ Decision on Bin Laden Raid,” PBS Newshour 

(video and transcript), 3 May 2011, http://www.pbs.org/newshour/bb/terrorism-jan-june11

/panetta_05-03.html.

5

 A clandestine operation is defined doctrinally as “an operation sponsored or conducted . . . in 

such a way as to assure secrecy or concealment.” Military doctrine goes on to clarify: “A clandestine operation differs from a covert operation in that emphasis is placed on concealment of the 

operation rather than on concealment of the identity of the sponsor.” See Department of Defense 

Dictionary of Military and Associated Terms Joint Publication 1-02 and Joint Publication 3-05.1

Joint Special Operations: Task Force Operations. U.S. Joint Chiefs of Staff, Appendix B discusses 

issues related to conducting drone strikes in a clandestine or covert manner.

6

 See“Background Briefing” for the explanation from the White House.

48 | The Future of Drone Strikes
lead, as opposed to the supporting, agency. Legally it may, as mentioned 

above, and the analysis below considers this case.

Throughout the following, a preference for drone strike operations to 

be conducted under Title 10 is considered as a potential option for the military preference policy. It is discussed specifically in the cases when it has 

different or additional implications than does the military preference in the 

absence of the additional Title 10 preference.

If the military does not carry out covert actions, this would simplify 

some of the discussion that follows. Even so, note that the additional Title 

10 preference would make for a more transparent policy. As discussed 

below, there are advantages to transparency, but there might also be military and strategic costs.

Speaking of transparency, even this relatively brief discussion highlights some of the issues around President Obama’s guidance being classified. The public release of what specifically it entails, assuming it is or 

will be implemented, would significantly increase the transparency of U.S. 

drone strike operations. Another policy option discussed below entails the 

release of additional information about targeting processes and standards, 

and could include the release of the guidance or at least more information describing it. The pros and cons of that general policy option will be 

considered throughout Part II, alongside those of the military preference 

policy.

A “DRONE COURT”

The push for increased accountability and oversight has resulted in calls 

for a “drone court” to oversee drone strikes. Although drones have caught 

the public’s attention, it may be more logical to expand this notion to that 

of a court that oversees remote targeting operations, rather than the court’s 

purview being dependent on the weapons platform being a drone. Moreover, such a mechanism for oversight could potentially exist outside of 

the judicial branch so, even though the word “court” is used throughout 

the following, this option should be understood to be an oversight body 

rather than a court necessarily. Thus the term “drone court” will be used 

Framework and Policy Options | 49
for our purposes as a short-hand reference to a body that oversees remote 

targeting operations in which people are killed, including those operations 

carried out by drones.7

A drone court could take a couple of different forms. One form that is 

widely discussed is the notion of a “FISA-like drone court,” referring to the 

court established by the Foreign Intelligence Surveillance Act (FISA). The 

federal judges presiding over the FISA court approve warrants permitting 

U.S. agencies (in particular, the National Security Agency [NSA] and the 

Federal Bureau of Investigation [FBI]) to collect evidence—typically electronic communications—pertaining to foreign intelligence and terrorism. 

The analog in the drone world would be a court in which judges authorize drone strikes or drone strike targets based on whether they are legally 

sound and/or in line with U.S. policy, except in cases for which time does 

not permit, wherein a post-strike review would be conducted. As with the 

FISA court, the proceedings would be classified and held out of the public 

view. The court could be limited to overseeing only operations located in 

areas where American ground troops have no presence or have jurisdiction 

over all operations.

This option has received high-profile attention. Members of the U.S. 

Senate Select Committee on Intelligence, including Chairman Dianne Feinstein and Senator Angus S. King, as well as Senate Judiciary Committee 

Chairman Patrick J. Leahy and Ranking Member Charles E. Grassley have 

expressed interest in it.8 Former Secretary of Defense and CIA Director 

7

 A drone court could alternatively have oversight over targeting operations in general. This may 

include operations in support of more widely varied missions than if the purview of the court was 

strictly over remote targeting operations. 

8

 Carlo Muñoz, “Sens. Feinstein, Leahy Push for Court Oversight of Armed Drone Strikes,” 

The Hill, 10 February 2013, http://thehill.com/policy/defense/282033-feinstein-leahy-push-for

-court-oversight-of-armed-drone-strikes-; John O. Brennan, “Open Hearing: Nomination 

of John O. Brennan to be the Director of the Central Intelligence Agency,” 7 February 2013 

(transcript and video), United States Senate, Select Committee on Intelligence, Washington, 

DC, http://www.intelligence.senate.gov/hearings/open-hearing-nomination-john-o-brennan-be

-director-central-intelligence-agency, hereafter Brennan, “Open Hearing”; and Scott Shane, “Debating a Court to Vet Drone Strikes,” New York Times, 8 February 2013, http://www.nytimes

.com/2013/02/09/world/a-court-to-vet-kill-lists.html.

50 | The Future of Drone Strikes
Robert M. Gates expressed support for this option, and President Obama 

stated his intention to review its merits.9 However, a FISA-like court raises 

a number of significant legal and practical questions, such as whether it 

would be constitutional or an unprecedented intrusion into battlefield decision making and the president’s prerogatives as commander in chief.

Another alternative would be to establish an “Israeli-style drone court” 

to review drone strikes after they have occurred. Such a system has been 

in place in Israel for several years, in which, as stipulated by the Israeli 

Supreme Court, after a targeted killing strike takes place, an independent 

body carries out “a thorough investigation regarding the precision of the 

identification of the target and the circumstances of the attack upon him 

. . .”10 These proceedings are not accessible by the public, but add some 

level of oversight and accountability to the process.11 Currently, U.S. government organizations that carry out drone strikes conduct internal investigations according to their own criteria (or sometimes at the direction of the 

relevant congressional committees).

There are many different potential ways to implement an Israeli-style 

court. It could evaluate strikes based on their adherence to legal or policy 

standards. It could release its findings to the public or not. It could investigate all targeted killings, or only those alleged to have been improper or 

that resulted in unintended civilian casualties. As with the FISA-like court, 

its jurisdiction could be restricted to operations conducted outside of hot 

9

 “Drone Court Proposed to Review Targeted Killings of Americans,” Arutz Sheva 7, 10 February 2013, http://www.israelnationalnews.com/News/News.aspx/165081#.VcTUanj9pi0; and 

Obama, “Remarks by the President at the National Defense University.”

10 Public Committee against Torture in Israel et al. v. Government of Israel et al. (High Court of 

Justice, 2005), http://elyon1.court.gov.il/Files_ENG/02/690/007/a34/02007690.a34.htm. This 

Israeli Supreme Court decision was a landmark one from 2006 in which the court held that it 

was legal for the military to execute targeted killings against members of designated terrorist 

organizations. 

11 For a description of some of the general mechanisms for oversight and investigation used in 

Israel, see Israel’s Mechanisms for Examining and Investigating Complaints and Claims of Violations 

of the Laws of Armed Conflict According to International Law: Second Report-The Turkel Commission (Israel: Public Commission to Examine the Maritime Incident of 31 May 2010, 2013), 

http://www.turkel-committee.gov.il/files/newDoc3/The%20Turkel%20Report%20for%20

website.pdf.

Framework and Policy Options | 51
battlefields, or not. Under this system, the government could have the opportunity (or be compelled) to release—to Congress or the pubic—its findings that the target was guilty of wrongdoing. Finally, this system could 

also serve as an instrument to award monetary reparations in response to 

civilian casualties and other collateral damage. As with a FISA-like drone 

court, the Israeli-style model also raises significant legal and practical 

questions.

The most obvious way to run a FISA-like court or an Israeli-style court 

would be to populate it with federal judges, keeping it within the judicial 

branch, although it would raise some questions about legality and whether 

the judges would necessarily have the appropriate national security expertise. Alternatively, either entity could be run as an independent oversight 

board within the executive branch, which President Obama referred to in 

a May 2013 speech, without providing further details.12 Another option 

would be to implement the drone court as a “national security court”—

a hybrid between a federal court and a military commission—existing 

outside of the federal court system and modeled after such a proposal for 

dealing with detainees.13 The court would be overseen by civilian appointees with expertise in national security issues.14 Both of these options might 

have significant potential, but present a significant number of legal and 

practical issues that are outside the scope of this work.

RELEASING FURTHER DETAILS ABOUT TARGETING

The Obama administration has put forth basic information about its drone 

strike targeting practices in various speeches and other communiqués, but 

the demand for greater transparency continues to grow. The Department 

of Justice (DOJ) was recently compelled by a Freedom of Information Act 

12 Obama, “Remarks by the President at the National Defense University.” 

13 Marc Ambinder, “The National Security Court System: An Interview with Glenn Sulmasy,” 

Atlantic, 5 August 2009, http://www.theatlantic.com/politics/archive/2009/08/the-national

-security-court-system-an-interview-with-glenn-sulmasy/22708/.

14 Glenn M. Sulmasy, “The Legal Landscape after Hamdan: The Creation of Homeland Security 

Courts,” New England Journal of International and Comparative Law 13, no. 1 (Fall 2006).

52 | The Future of Drone Strikes
(FOIA) lawsuit to release portions of a classified memorandum that put 

forth its legal rationale for targeting U.S. citizen Anwar al-Awlaki, while 

members of the public and even of the Senate Select Committee on Intelligence pushed for the release of additional DOJ legal memos on drone 

strike practices.15

More widely, the UN, Congress, advocates, and pundits have called for 

the release of further details on U.S. drone strike activities and practices. 

In the 2014 Intelligence Authorization Act, Congress proposed a provision that would have required the president to report the total number of 

combatants and noncombatant civilians killed or injured by drone strikes 

in the past year, although it later stripped the provision from the bill.16

With respect to U.S. targeting processes and standards, Senators Ronald L. 

Wyden, Mark E. Udall, and Martin T. Heinrich of the Senate Select Committee on Intelligence noted in a public letter to Attorney General Holder, 

“The United States’ playbook for combating terrorism will sometimes 

include sections that are secret, but the rulebook that the United States 

follows should always be available to the American public.”17

While the primary focus of these members of Congress may be on the 

release of information to the American people, greater transparency to 

the local population in areas of drone strikes may also be desirable. For 

15 Anwar al-Awlaki was an American citizen and a member of al-Qaeda in the Arabian Peninsula 

who was actively involved in terrorist activities. He was targeted and killed by a drone strike in 

Yemen in 2011. See Brennan, “Open Hearing.” For more on the DOJ release, see Charlie Savage, 

“Court Releases Large Parts of Memo Approving Killing of American in Yemen,” New York Times, 

23 June 2014, http://www.nytimes.com/2014/06/24/us/justice-department-found-it-lawful

-to-target-anwar-al-awlaki.html. A request came from senators for the release of additional DOJ 

memos, see “Letter from Senators Ron Wyden, Mark Udall, and Martin Heinrich to the Honorable Eric Holder,” 26 November 2013, http://www.wyden.senate.gov/download/?id=C48CD5E5

-EF15-4A44-A1BF-2274E5B1929A&download=1.

16 “Drone Strikes: James Clapper’s Letter to Senate Intelligence Committee,” Guardian, 29 April 

2014, http://www.theguardian.com/world/interactive/2014/apr/29/cia-us-national-security; and 

Spencer Ackerman, “U.S. Senators Remove Requirement for Disclosure over Drone Strike Victims,” Guardian, 28 April 2014, http://www.theguardian.com/world/2014/apr/28/drone-civilian

-casualties-senate-bill-feinstein-clapper.

17 “Letter from Senators Ron Wyden, Mark Udall, and Martin Heinrich to the Honorable Eric 

Holder.”

Framework and Policy Options | 53
example, “In a place like Yemen,” one article notes, “although the American drone program is universally hated, many Yemenis will admit they 

would support targeted assassinations if there is clear intelligence that an 

individual is a senior operative within AQAP [al-Qaeda in the Arabian 

Peninsula] and plotting a specific and imminent act of terror against 

Americans.”18

As one legal scholar asserted, “The government needs a way to credibly convey to the public that its decisions about who is being targeted 

. . . are sound.”19 While certain specifics of U.S. targeting practice and 

policy should remain protected to preserve the effectiveness of the intelligence collection methods and the strikes themselves, some materials 

might be able to be released in a way that does not prohibitively harm 

U.S. national security interests. Two separate (and independent) options 

are considered here: (1) releasing more information about the targeting 

process itself and targeting standards; and (2) releasing post-strike details 

about specific targets. Such information should be released only after any 

potential harm to the future effectiveness of U.S. practices has been fully 

weighed.

Specific points of clarification for targeting processes and standards 

could include:

• which agencies and how many people take part in the target approval 

process;20

• what the intelligence review processes are like, in general;21

18 Danya Greenfield, “The Case Against Drone Strikes on People Who Only ‘Act’ Like Terrorists,” 

Atlantic, 19 August 2013, http://www.theatlantic.com/international/archive/2013/08/the-case

-against-drone-strikes-on-people-who-only-act-like-terrorists/278744/.

19 “Drone Court Proposed to Review Targeted Killings of Americans.” 

20 Jack Goldsmith, “Fire When Ready,” Foreign Policy, 20 March 2012, http://foreignpolicy.com

/2012/03/20/fire-when-ready/.

21 Ibid.

54 | The Future of Drone Strikes
• further explanation of the requirement that a target represent an “imminent” threat;22

• provide more detail on what constitutes the “infeasibility” of capture 

for a target;23

• what the means are for deciding, for targeting purposes, when 

members of al-Qaeda and its associated forces are performing continuous combat functions, and when civilians are directly participating in 

hostilities;

• the level of evidence the president needs to determine that a given 

American may be targeted by military action;24

• the level of evidence that is needed to target unknown individuals in a 

“signature” strike;

• provide further guidance on what types of military activities are considered TMAs (i.e., are conducted under Title 10, rather than Title 50);25

• what the congressional review entails, including distinctions between 

the Intelligence and Armed Services Committees’ processes;26 and

• what President Obama’s May 2013 guidance entails and, to the extent 

that it is being implemented, what changes it has introduced into U.S. 

CT practices.

The other option is to release some of the target’s terrorist affiliations, activities, and plans after a strike is completed, when it is feasible to do so 

without revealing sources and methods in a way that would significantly 

22 “Letter from Senators Ron Wyden, Mark Udall, and Martin Heinrich to the Honorable Eric 

Holder.”

23 Ibid.

24 Ibid.

25 See Appendix A for further discussion of these points.

26 For more on the congressional review. see Goldsmith, “Fire When Ready.” 

Framework and Policy Options | 55
hinder future operations and intelligence collection. The information released could include:

• details of the target’s ties to al-Qaeda or an associated force;

• explanation of the military necessity of the strike and why the threat 

posed was imminent; and

• explanation of why capture was not feasible.27

Currently, this type of information is only being released in extremely rare 

cases. For instance, some of these details were addressed in the case of alAwlaki.28 Note that an Israeli-style drone court would be one potential way 

to implement this option.

SUMMARY OF POLICY OPTIONS

The five policy options described above are revisited in each of the remaining chapters of Part II. The options are summarized as follows:

• The military preference: a preference that drone strikes be carried out 

by the military. This option may include the additional preference that 

drone strikes be carried out under Title 10 (i.e., that drone strikes not 

be conducted covertly as defined by Title 50).

• A FISA-like drone court: establishing a process by which drone strikes 

are authorized by an oversight body (with exceptions for cases in 

which time is too short).

• An Israeli-style drone court: establishing a process that reviews drone 

strikes after the fact.

• Releasing further details about targeting processes and standards.

• Releasing further details about targeted individuals.

27 Ibid.

28 Joint Special Operations: Task Force Operations.

56 | The Future of Drone Strikes
CHAPTER 9

57

MILITARY EFFECTIVENESS

The remainder of Part II describes considerations for anticipating the 

effects of policy options for drone strikes on military effectiveness (with a 

focus on tactical military effectiveness or TME), perceived legitimacy, and 

how those factors contribute to the net effectiveness of combatting terrorism. The policy options described in the previous chapter serve as examples throughout these discussions.

Effects on TME, OME, and SME are crucial factors to consider when 

evaluating any drone strike policy option. Presented below is one way to 

think through the effects of a policy option on TME, as well as considerations related to adversary reactions, which are relevant to all three aspects 

of military effectiveness.

TME

One way to anticipate the effects on TME due to a drone strike policy 

option is to break a single generic strike down into tactical-level steps and 

consider the effects on each step individually. Consider the following seven 

tactical steps for drone strikes:

1.Targeting: intelligence products are used to designate a target based on 

established criteria.
58 | The Future of Drone Strikes

2.Approval of target: the appropriate authority approves the target, 

which can happen in conjunction with “approval of strike” step.

3.Plan strike: the strike is planned, coordinated, and deconflicted by the 

forces that will conduct it, and resources are apportioned for it. The 

plan requires a drone based within reach of the strike area, either on 

land or afloat, and the use of airspace between the base and the strike 

area.

4.Approval of strike: the appropriate authority approves the strike, 

which can happen months, days, or hours before the strike is executed.

5. Conduct strike: the strike is carried out in accordance with the plan, as 

well as the standard procedures set by the organization(s) in command 

and control of the operation.

6.Immediate review: a battle damage assessment (BDA) may be conducted, either by surveillance assets like a drone or by individuals 

on the ground. The strike may be debriefed by operators, and lessons 

learned may be extracted.

7.Longer-term review and reaction: the outcome of the strike may be 

reported to oversight authorities, such as Congress. If there are significant concerns about the strike or its outcomes, an internal or external investigation may be conducted and could result in disciplinary 

actions, acknowledgement of collateral damage, or changes to training 

or operations. Any lessons learned may also be absorbed and reflected 

in adaptations made to training or operations.

Note that the immediate and longer-term review steps may entail any 

subset of the actions listed or none at all.

The specifics of how each step is carried out will depend on the 

organization(s) carrying out the operation and the details of the operation itself. These steps will also vary depending on whether the strike is 

planned in advance or arises out of a dynamic situation, such as an opportunity for a spontaneous strike that would further the objectives of the 

military campaign, but for which the target or strike itself had not previ-
Military Effectiveness | 59

ously been approved (e.g., in the case of a signature strike). DOD doctrine 

refers to these as “unanticipated” or “unplanned” targets of opportunity, 

respectively.1 In those cases, the target and strike planning and approval 

processes might be based on general guidelines, with a more robust review 

after the strike takes place.

DOD doctrine supports the division of the targeting process into 

generic steps. In particular, these steps reflect those from the joint targeting 

cycle, which are the following:2

1.Endstate and commander’s objectives: forces ensure that the commander’s intent, the conditions that characterize the military objectives 

have been met, and corresponding metrics are all developed and thoroughly understood by forces.3

2.Target development and prioritization: the adversary’s systems of interest are analyzed to determine potential targets and those targets are 

developed, prioritized, nominated, and approved.

3. Capabilities assessment: forces evaluate their own capabilities in the 

context of perhaps numerous anticipated target requirements and determine and analyze options for prosecuting those targets.

4. Commander’s decision and force assignment: options from the previous step are further analyzed with respect to the available forces, 

systems, and necessary support; the commander approves the target 

list; and forces are tasked.

5.Mission planning and force execution: operations are planned in 

detail, adjusted as necessary in reaction to any changing conditions, executed, and an initial BDA is completed.

6.Assessment: the commander evaluates the effect of the actions from 

the five previous steps on achieving the necessary objectives, does 

further BDA, and recommends follow-on actions.

1

 Joint Targeting, Joint Publication 3-60 (Washington, DC: Joint Chiefs of Staff, 2013).

2

 Ibid.

3

 This step is not a part of the process described above.
Several of the seven tactical steps for drone strikes discussed earlier have 

been expounded upon by government officials. For example, in a 2012 

speech, John Brennan, then-chief counterterrorism advisor to President 

Obama and the current director of the CIA, noted that the target approval 

step entails an evaluation of whether the potential target is a “significant 

threat to U.S. interests” and goes up to the “most senior officials in our 

government.”4 This statement was supported by interviews with several 

DOD officials, who specified that a group of senior officials from such 

agencies as the Departments of State and Justice review the relevant intelligence and approve or reject DOD targets. The officials also noted that 

DOD’s target approval process entails interagency legal vetting.

Minimizing civilian drone strike casualties has always been a priority of the United States, and President Obama recently specified that the 

current policy is that strikes are carried out only if there is “near certainty 

that no civilians will be killed or injured.”5 Furthermore, a planned strike 

receives approval only if U.S. forces have a “high degree of confidence” in 

the identity of the target.6 Immediate review includes BDA and, if collateral damage occurred, then longer-term review and reaction may include 

analyzing the strike process and making changes based on those findings.7

Effects of the Policy Options

The military preference, FISA-like drone court, and Israeli-style drone 

court policies each have an impact on the tactical steps of a drone strike. 

These implications should be evaluated fully by those currently involved 

4

 John O. Brennan, “The Ethics and Efficacy of the President’s Counterterrorism Strategy” 

(remarks, Washington, DC, 30 April 2012), http://www.fas.org/irp/news/2012/04/brennan

043012.html.

5

 Regarding minimizing casualties, see ibid.; and Senior Defense Official, “Background Briefing on Targeting,” DOD News, 5 March 2003, http://www.defense.gov/Transcripts/Transcript

.aspx?TranscriptID=2007. Quotation from Obama, “Remarks by the President at the National 

Defense University.” 

6

 Brennan, “The Ethics and Efficacy of the President’s Counterterrorism Strategy.”

7

 Ibid.

60 | The Future of Drone Strikes
in drone strike operations. Some initial considerations along these lines 

follow.

For the military preference policy, note that how each of the seven tactical steps is carried out might differ depending on the agency leading the 

strike. Take, for instance, “longer-term review and reaction”: oversight for 

many DOD drone strikes is with the House and Senate Armed Services 

Committees, while a drone strike carried out by an OGA receives oversight 

by the House and Senate Intelligence Committees.8 Also, each organization that carries out drone strikes follows its own procedures, so the mechanics for strike planning and execution will vary depending on whether 

strike planning and execution are conducted by the DOD or an OGA. DOD 

and OGA operators and other relevant personnel should be able to predict 

the effects that the military preference policy would have on each of these 

steps.

The necessary regional access to carry out drone strikes also might vary 

depending on the organization conducting the strikes. For example, OGAs 

apparently have more flexibility to operate in Yemen than the U.S. military 

does. Indeed, as a result of a number of drone strikes that mistakenly killed 

innocent people, Yemen banned the U.S. military from conducting drone 

strikes in the country, though OGA strikes reportedly continued.9 This 

example shows that the military preference policy might hinder the U.S.’s 

ability to launch strikes depending on location.

Moreover, the drone strike process looks different depending on 

whether a strike is covert, so there would be further ramifications if the 

military preference policy included a preference that drone strikes be conducted under Title 10 (i.e., not be conducted covertly, in the Title 50 sense). 

Indeed, a “Title 50 covert” strike requires a presidential finding for approval, whereas other strikes need not rise to this level of authorization. Oversight of a “Title 50 covert” strike must include the intelligence committees, 

and any investigations or acknowledgement of collateral damage could, by 

8

 Whether there is a substantive difference between the oversight of the different congressional 

committees is thus an important question, which publicly available information may not answer.

9

 Mazzetti, “Delays in Effort to Refocus CIA from Drone War.” 

Military Effectiveness | 61
definition, only be internal to the government in the case of a covert strike. 

Again, DOD and OGA operators and other relevant personnel should be 

able to estimate the effects of these factors.

A FISA-like drone court would affect the target approval process, with 

the court itself adding another layer of oversight and time via its deliberations to ensure that the legal basis for the proposed action is sound. While 

those factors could hinder fast and streamlined execution of strikes, they 

could potentially serve as an additional check against collateral damage 

and other unintended consequences. An Israeli-style drone court would 

add additional accountability and perhaps a mechanism for addressing 

collateral damage in the longer-term review and reaction processes. More 

accountability could potentially have a chilling effect on operations as well, 

with the government less inclined to carry out drone strikes in case they 

would result in sanctions or additional controversy.

Finally, all of the policy options considered here could have an effect 

on the cooperation of U.S. allies and other nations with U.S. drone strike 

operations, including, for example, drone basing and airspace usage, as 

mentioned in the planning step. These aspects of drone strike operations 

are discussed more holistically below.

THE ENEMY’S VOTE

“The enemy gets a vote” in the outcome of any military action, as the 

saying goes. Consider a single drone strike, which entails the process described above. The actions of the target and his or her network may make 

the steps of that process easier or harder to accomplish successfully. The 

target’s ability to affect the strike process is based, in part, on their understanding of U.S. methods of intelligence collection, operations, and procedures. This topic affects TME, OME, and SME.

For the targeting stage, collecting intelligence to identify the target 

and his or her terrorist activities and affiliations is crucial and, in order to 

plan the strike, establishing intelligence on the local area and the target’s 

pattern of life is necessary. All of this depends on U.S. forces’ intelligencegathering capabilities being effective in the target’s local area, and the 

62 | The Future of Drone Strikes
target (and their network) not being able to or aware enough to avoid these 

efforts. Intelligence-sharing agreements with U.S. allies can also provide an 

essential complement to these capabilities.

The strike must be conducted in accordance with the executing organization’s standards and procedures. The more the target knows about 

these, the more they would be able to ensure those standards are not met, 

preventing the strike from taking place. For example, President Obama has 

said in recent years of current U.S. policy that, “. . . before any strike is 

taken, there must be near-certainty that no civilians will be killed or injured 

. . .”10 Hence, if a terrorist can ensure that they are clearly in the presence of 

civilians, they may be able to avoid a strike. In that vein, the more terrorists 

know about the target approval and accountability processes for strikes, 

and the more robust those processes are, the more the terrorists may 

be able to deduce ways of making U.S. forces less inclined to act, either 

because a strike is not approved or for fear of repercussions under the accountability processes. Conversely, less transparency about targeting practices could provide strategic ambiguity around U.S. actions, which could 

be exploited to deter potential terrorists.

Effects of Policy Options

The obvious danger of policy options that consist of releasing more information on U.S. targeting processes and standards or potential targets 

is that terrorists might be able to use this information to be better able to 

thwart intelligence-gathering and strike operations. This issue presents a 

significant risk to the military effectiveness of drone strikes that should be 

taken into account when analyzing options.

As for the military preference policy, one of the main arguments for 

the policy is that DOD carries out operations under a relatively wellunderstood collection of standards and procedures. Former Director of National Intelligence (DNI) Admiral Dennis C. Blair noted that, “Within the 

armed forces we have a set of procedures that are open, known for how 

10 Obama, “Remarks by the President at the National Defense University.” 

Military Effectiveness | 63
you make decisions about when to use deadly force or not, levels of approval, degrees of proof and so on and they are things that can be and 

should be out.”11 The extent to which the transparency given by drone 

operations comporting to those standards and enabling terrorists to avoid 

drone strikes is similarly a factor that should be taken into account.

Finally, the additional approval authority of a FISA-like drone court, or 

the additional accountability measure of an Israeli-style drone court, might 

also prevent the United States from acting in certain instances, which could 

potentially be manipulated by terrorists. The extent to which this could 

happen will depend on the standards of the court(s) as well as the transparency of those standards.

SUMMARY OF MILITARY EFFECTS ISSUES

The discussion above provides an avenue for evaluating the potential 

effects of a policy change for drone strikes on TME by considering the 

various processes of a single drone strike. The generic drone strike steps 

highlight specific areas to consider within TME when evaluating drone 

strike policy options. To make a concrete evaluation, input from current 

operators and the details of how the policy options would be implemented 

would be required.

This chapter also suggests a significant area in which a policy change 

could indirectly impact military effectiveness at the tactical, operational, 

and strategic levels—that of the terrorists’ abilities to avoid being targeted. 

Indeed, the more individuals know about drone strike practices and targeting guidelines, the more they may be able to avoid meeting the criteria 

for a strike. Since all of the policy options presented involve some degree 

of greater transparency for drone strike operations, they all risk giving 

terrorists this type of advantage, particularly the options for releasing 

more information about targeting processes and standards and targeted 

individuals.

11Scott Horton, “Blair Addresses the CIA, Drones, and Pakistan,” Browsings (blog), Harper’s, 1 

December 2011, http://harpers.org/archive/2011/12/hbc-90008329.

64 | The Future of Drone Strikes
CHAPTER 10

65

LEGITIMACY

U.S. actions abroad are considered legitimate to a given audience to the 

extent that they are in line with that group’s values and perceived norms. 

For instance, the government will garner legitimacy in the eyes of the West 

if U.S. actions are consistent with Western values (e.g., transparency and 

advancing personal and economic freedoms) and international law, which 

perhaps forms the perceived set of norms in the West. To the international 

community writ large, common values might be more basic, including such 

principles as fairness, accountability, and ethical standing, and perhaps 

only portions of international law form the common perceived norms. The 

values of the American public combine Western values with an American 

worldview. For example, after years as an active global hegemon, an American worldview might be more interventionist than that of the West as a 

whole.

This chapter discusses the international legal context in which drone 

strikes are carried out. It subsequently provides the details of the “legitimacy” portion of our framework by specifying numerous legitimacy issues, 

particularly how these issues are addressed by the five policy options.

INTERNATIONAL LEGAL CONTEXT

The U.S. CT campaign against al-Qaeda and its associated forces is carried 

out within the context of international law. Whether drone strikes are seen 
to be consistent with international law forms a major component of their 

perceived legitimacy throughout the world.1 This chapter provides background on the existing international legal framework and how the U.S. 

government describes its drone strike practices as fitting into that framework. This chapter also highlights some controversies and issues that have 

emerged around the U.S. CT campaign and drone strikes more specifically, 

as well as the role that the policy options considered here could play in addressing some of those issues. Note that the issues raised within the more 

in-depth legal discussion here are briefly summarized in the next section.

The government has stated unequivocally that its use of drone strikes 

is consistent with international law.2 In particular, the government has asserted that its use of drone strikes in CT operations qualifies as a legal use 

of force because it is a self-defense response to the 9/11 terrorist attacks and 

the continuing terrorist threat from al-Qaeda and its associated groups.3

Indeed, on 12 September 2001, the United Nations Security Council passed 

1

 This is true even though international law has significant areas of controversy and ambiguity. 

For example, the Geneva Conventions—consisting of four Conventions and three Additional 

Protocols—form the basis for important aspects of international law. Even so, many countries 

have not ratified one or more of the Additional Protocols, including the United States, which has 

not ratified the first and second of the Protocols. However, some articles from the Protocols have 

been deemed customary law, and thereby apply to all nations.

2

 See Obama, “Remarks by the President at the National Defense University”; Brennan, “The 

Ethics and Efficacy of the President’s Counterterrorism Strategy”; and Eric H. Holder Jr., “Attorney General Eric Holder Speaks at Northwestern University School of Law” (speech, Northwestern University School of Law, 5 March 2012), http://www.justice.gov/iso/opa/ag/speeches/2012

/ag-speech-1203051.html. While the U.S. government also has stated unequivocally that its 

drone strike practices are consistent with domestic law, this work focuses primarily on international law.

3

 See, for example, Brennan, “The Ethics and Efficacy of the President’s Counterterrorism Strategy”; Holder, “Attorney General Eric Holder Speaks at Northwestern University School of Law”; 

and Harold Hongju Koh, “The Obama Administration and International Law” (speech, Annual Meeting of the American Society of International Law, Washington, DC, 25 March 2010), 

http://www.state.gov/s/l/releases/remarks/139119.htm. Note that the UN Charter permits the 

use of force against a threat within another nation’s borders under three circumstances: for selfdefense (including collective self-defense), with the consent of the host nation, or in accordance 

with a Security Council resolution. In the case of self-defense, the host nation must be unable or 

unwilling to act against the threat.

66 | The Future of Drone Strikes
Legitimacy | 67

a resolution condemning the 9/11 attacks and noting a nations’ right to 

self-defense.4

The U.S. government contends that it is involved in an armed conflict 

with al-Qaeda and its associated forces—specifically, what some term a 

“transnational” Noninternational Armed Conflict (NIAC).5 The government’s assertion is not without controversy, however. For instance, the International Committee of the Red Cross (ICRC) takes issue with the United 

States classifying all its actions against al-Qaeda and its associated forces in 

this way. ICRC’s position is that each “situation of violence” should be considered separately and classified as an International Armed Conflict (IAC), 

an NIAC, or not an armed conflict on a case-by-case basis, and that situa4

 See UN Security Council Resolution (UNSCR) 1368, UN Doc. S/RES/7143, 12 September 

2001, http://www.un.org/News/Press/docs/2001/SC7143.doc.htm; and UNSCR 1373, UN 

Doc. S/RES/7158, 28 September 2001, http://www.un.org/News/Press/docs/2001/sc7158.doc

.htm. On the domestic front, the U.S. Congress passed the Authorization for the Use of Military Force (AUMF) on 14 September 2001, which permitted U.S. military action against the 

individuals, organizations, and nations that perpetrated or aided in the 9/11 attacks without 

geographic or temporal limitations.

5

 Obama, “Remarks by the President at the National Defense University”; Brennan, “The Ethics 

and Efficacy of the President’s Counterterrorism Strategy”; Koh, “The Obama Administration 

and International Law”; and Emmerson, Promotion and Protection of Human Rights. International law has differing standards for the use of force within and outside of armed conflicts, and 

also distinguishes between IACs and NIACs. A conflict is an IAC if it occurs between nations 

or if a population is defending its right of self-determination against “colonial domination and 

alien occupation and . . . racist regimes.” See the Protocol Additional to the Geneva Conventions 

of 12 August 1949, opened for signature 12 December 1977, UN Doc. A/32/144. Outside of 

these “national liberation” cases, a conflict is a NIAC if one or more of the main parties to the 

conflict is an organized nonstate group, meaning that the group has “. . . certain command 

structure and the capacity to sustain military operations,” and the conflict is protracted and is 

of a level of intensity above that of “internal disturbances and tensions, such as riots.” See How 

is the Term “Armed Conflict” Defined in International Humanitarian Law?, ICRC Opinion Paper 

(Geneva, Switzerland: ICRC, 2008), http://www.icrc.org/eng/assets/files/other/opinion-paperarmed-conflict.pdf; and the Protocol Additional to the Geneva Conventions of 12 August 1949, 

and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), opened 

for signature 12 December 1977, UN Doc. A/32/133. (The notion of a “transnational” NIAC 

is relatively new.) A conflict is not considered an armed conflict if it does not fall into these two 

categories: if violent events are sporadic or rise only to the level of intensity of a disturbance or if 

parties to the conflict are not sufficiently organized. 
68 | The Future of Drone Strikes

tions of violence in the U.S. CT campaign have fallen under each of these 

categories.6

International Humanitarian Law (IHL) governs the use of force in 

armed conflicts. IHL stipulates, for example, that individuals can be targeted in an armed conflict if they are members of the armed forces of a party 

to the conflict or additionally, in the case of a NIAC, if they are members 

of an organized armed group that is a party to the conflict and have a continuous function to directly participate in hostilities.7

 In addition, civilians 

may be targeted if they are directly participating in hostilities, subject to 

meeting specific criteria regarding the nature of their actions.8 Any such 

targeting or use of force is further subject to the principles of military necessity, distinction, and proportionality under IHL.9

The Obama administration has argued that its targeting practices 

conform to these principles, and has outlined further aspects of U.S. targeting to make the case that it is in line with IHL and to some extent with 

International Human Rights Law (IHRL), which includes a more stringent 

6

 International Humanitarian Law and the Challenges of Contemporary Armed Conflicts (Geneva, 

Switzerland: 31st International Conference of the Red Cross and Red Crescent, 28 November

–1 December 2011), http://www.icrc.org/eng/resources/documents/report/31-international

-conference-ihl-challenges-report-2011-10-31.htm.

7

 Nathalie Weizmann, “Remotely Piloted Aircraft and International Law,” in Hitting the Target? How New Capabilities Are Shaping International Intervention, ed. Michael Aaronson and 

Adriand Johnson (London: Royal United Services Institute for Defence and Security Studies, 

2013), http://www.icrc.org/eng/resources/documents/article/other/remotely-piloted-aircraft-ihl

-weizmann.htm; and Nils Melzer, Interpretive Guidance on the Notion of Direct Participation in 

Hostilities under International Humanitarian Law (Geneva: ICRC, 2009), hereafter Interpretive 

Guidance, http://www.icrc.org/eng/resources/documents/publication/p0990.htm.

8

 Weizmann, “Remotely Piloted Aircraft and International Law”; and Melzer, Interpretive Guidance. The topic of direct participation in hostilities is nuanced and an area of debate beyond the 

scope of this work.

9

 Necessity requires that force only be used lawfully and to the level needed to achieve the military 

objective. The principle of distinction speaks to discerning between legitimate military targets 

and protected entities (e.g., civilians who are not taking part in hostilities or civilian infrastructure); attacks must attempt to limit damage to legitimate targets when possible, and armed forces 

should attempt to distinguish and separate themselves and their fixtures from the civilian population. Proportionality requires that collateral damage be limited to a level “proportional” to the 

military objective sought. In addition, some cite the principle of humanity, which requires the use 

of weapons that do not inflict unnecessary suffering. 
Legitimacy | 69

set of standards for the use of force that applies even outside of armed 

conflicts.10 In particular, IHRL allows individuals to be targeted with force 

only if they represent an imminent and substantial threat to life, and arrest 

is not reasonably possible.

The Obama administration provided some clarification as to who qualifies as a targetable member of al-Qaeda and its associated groups. In a 

2012 speech, then-DOD General Council Jeh C. Johnson stated:

An “associated force,” as we interpret the phrase, has two characteristics to it: (1) an organized, armed group that has entered the 

fight alongside al Qaeda, and (2) is a co-belligerent with al Qaeda 

in hostilities against the United States or its coalition partners. In 

other words, the group must not only be aligned with al Qaeda. 

It must have also entered the fight against the United States or its 

coalition partners.11

Harold Koh, then legal advisor to the Department of State, stated that U.S. 

forces’ criteria for determining individual membership in al-Qaeda or an 

associated group “includes, but is not limited to . . . relevant evidence of 

formal or functional membership, which may include an oath of loyalty, 

training with al-Qaeda, or taking positions with enemy forces.”12

Harkening back to IHRL standards, lethal force is used only if the 

target “poses a continuing, imminent threat to U.S. persons,” and only 

then when capture is not feasible and there are “no other reasonable alter10 For the Obama administration’s argument, see Brennan, “The Ethics and Efficacy of the President’s Counterterrorism Strategy.” The listed aspects of IHRL can be considered regulation on 

law enforcement. 

11 Jeh Charles Johnson, “National Security Law, Lawyers, and Lawyering in the Obama Administration” (dean’s lecture, Yale Law School, 22 February 2012), http://www.lawfareblog

.com/2012/02/jeh-johnson-speech-at-yale-law-school/.

12 Koh, “The Obama Administration and International Law.”
natives” to address the threat posed.13 Attorney General Holder spoke to 

the feasibility of capturing a terrorist suspect when that suspect is a U.S. 

citizen, although that criteria could potentially apply to suspects of any 

nationality:

Whether the capture of a U.S. citizen terrorist is feasible is a factspecific, and potentially time-sensitive, question. It may depend 

on, among other things, whether capture can be accomplished in 

the window of time available to prevent an attack and without 

undue risk to civilians or to U.S. personnel. . . . In that case, our 

government has the clear authority to defend the United States 

with lethal force.14

When he was the chief counterterrorism advisor in the Obama administration, John Brennan described aspects of targeting processes and standards.15 A potential target and suspected al-Qaeda member is vetted to 

determine lawfulness, and in that case presented to “the very most senior 

officials in our government” for evaluation. Interviews conducted with 

several DOD officials confirmed that the target nomination meetings are 

lively interagency interactions at an extremely high level. Brennan noted 

that one criterion considered during the target approval process is whether 

the individual poses “a significant threat to U.S. interests,” for instance, 

acts as operational leader, makes preparations to attack U.S. interests, or 

“possesses unique operational skills that are being leveraged to plan an 

attack.”16

13 The White House, Office of the Press Secretary, “Fact Sheet: U.S. Policy Standards and Procedures for the Use of Force in Counterterrorism Operations Outside the United States and 

Areas of Active Hostilities,” 23 May 2013, hereafter “Fact Sheet,” https://www.whitehouse.gov

/the-press-office/2013/05/23/fact-sheet-us-policy-standards-and-procedures-use-force-counterterrorism.

14 Holder, “Attorney General Eric Holder Speaks at Northwestern University School of Law.”

15 Brennan, “The Ethics and Efficacy of the President’s Counterterrorism Strategy.”

16 Ibid.

70 | The Future of Drone Strikes
Once the target has been approved, a strike is executed only “if we 

have a high degree of confidence that the individual being targeted is 

indeed the terrorist we are pursuing,” if there is a “near certainty that no civilians will be killed or injured,” and if the country where the strike would 

take place either consents or is unwilling or unable to address the threat.17

After the strike, forces use “the full range of . . . intelligence capabilities” to 

determine if the target was killed as well as any collateral damage.18 If innocent civilians were harmed, Brennan notes that U.S. forces review their 

actions and strive to make improvements. Moreover, operating forces “regularly” report to Congress and congressional committees on strikes carried 

out.19

LEGAL ISSUES

There is significant controversy in the international community over the 

legality of the United States’ CT campaign. Some of the issues of contention might be alleviated by further clarification of the government’s legal 

position, though one military attorney noted the current lack of consensus 

around even the basic framework of the law:

. . . [The] overt disagreement on the answer to the legality question masks that the various participants in the discussion are utilizing wholesale different methodologies and talking past each other 

in the process. Some speak in terms of how the United Nations 

Charter governs the overarching question of legality; others claim 

that the Charter provides only some of the framework; and still 

others posit that the Charter does not meaningfully apply at all. 

This divergence leads to correspondingly varied answers as to 

what extent the law of armed conflict (LOAC) or human rights 

17 See, respectively, ibid.; Obama, “Remarks by the President at the National Defense University;” Brennan, “The Ethics and Efficacy of the President’s Counterterrorism Strategy”; and 

Holder, “Attorney General Eric Holder Speaks at Northwestern University School of Law.” 

18 Brennan, “The Ethics and Efficacy of the President’s Counterterrorism Strategy.” 

19 Ibid.

Legitimacy | 71
law applies to the use of force through the United States engaging targets in Pakistan. These answers range from the characterization of the conflict in Pakistan as a war and UAS [Unmanned 

Aerial System] strikes as “just the killing of the enemy, wherever 

and however found” to the same strike being labeled extrajudicial 

killings, targeted assassination, and outright murder.20

A UN special rapporteur noted that the United States’ use of drone strikes 

outside areas of active hostilities “gives rise to a number of issues on 

which there is either no clear international consensus, or United States 

policy appears to challenge established norms.”21 Even former CIA Director Hayden reportedly said that “virtually nobody in the rest of the world 

agrees with [the] United States targeting policy.”22 Moreover the UN special 

rapporteur noted that international consensus is lacking on a number of 

legal issues of importance to drone strike operations, and urged the United 

States (and other member states) to “further clarify its position.”23

One of the primary issues revolves around the ambiguity and subjectivity in the definition of an “armed conflict.” As mentioned above, some 

contend that a portion of the areas in which U.S. CT operations, such as 

drone strikes, take place should be considered below the “threshold” of 

armed conflict and that IHRL targeting standards should be used.

Another issue of controversy centers on the government’s criteria 

to satisfy a target posing an imminent threat, which have been criticized 

for being overly broad. Indeed, a DOJ legal memo argues that, due to the 

nature of terrorism, “Delaying action against individuals continually planning to kill Americans until some theoretical end stage of the planning for 

20 Chris Jenks, “Law from Above: Unmanned Aerial Systems, Use of Force, and the Law of 

Armed Conflict,” North Dakota Law Review 85 (12 March 2010): 651, http://papers.ssrn.com

/sol3/papers.cfm?abstract_id=1569904.

21 Emmerson, Promotion and Protection of Human Rights.

22 See “Drone Wars,” video, 1:29:34, from David M. Kennedy Center for International Studies 

panel discussion on Simon Schorno, “Drones Wars,” Intercross (blog), ICRC, 11 March 2013, 

http://intercrossblog.icrc.org/blog/drones-wars.

23 Emmerson, Promotion and Protection of Human Rights.

72 | The Future of Drone Strikes
a particular plot would create an unacceptably high risk that the action 

would fail and that American casualties would result.”24 It concludes that, 

“the condition that an operational leader present [sic] an ‘imminent’ threat 

of violent attack against the United States does not require the United 

States to have clear evidence that a specific attack on U.S. persons and interests will take place in the immediate future.”25 While the DOJ makes a 

crucial point, this usage is at odds with the definition of the word “imminent” and signals a departure from the historical criteria for a nation to act 

preemptively in self-defense only when the “necessity of that self-defense 

is instant, over-whelming, and leaving no choice of means, and no moment 

of deliberation.”26 Incidentally, targeting under IHRL requires that imminence be established.

Note that this example serves as a caution for the policy options that 

entail releasing further information about the drone strike targeting processes and the targets themselves. While such releases may be intended to 

bolster U.S. legitimacy in the eyes of the public and the international community, they could backfire if U.S. practices are confusing, appear questionable, or do not stand up to scrutiny.

These types of ambiguities and controversies seem to have resulted 

in confusion in the public over what legal framework the government is 

using, although the government has specified its use of the armed conflict 

framework. The government’s policy of having especially “high and rigorous standards” for targeting beyond what is required in IHL may add to 

the confusion, for along with the government’s emphasis on requiring an 

“imminent” threat, a typical expectation of no innocent casualties is also 

reminiscent of the targeting standards from IHRL, but is not a requirement 

24 Lawfulness of a Lethal Operation Directed Against a U.S. Citizen Who Is a Senior Operational 

Leader of Al-Qa’ida or an Associated Force (Washington, DC: Department of Justice, 2011), 7, 

http://www.justice.gov/oip/docs/dept-white-paper.pdf.

25 Ibid.

26 Anthony Clark Arend, “International Law and the Preemptive Use of Military Force,” Washington Quarterly 26, no. 2 (2003): 89–103, http://www.cfr.org/content/publications/attachments

/highlight/03spring_arend.pdf.

Legitimacy | 73
of IHL.27 The growing conflation of concepts from IACs and NIACs28 and 

the conflation of the legal frameworks governing armed conflicts and terrorism also add to the confusion.29

Indeed, acting in a manner consistent with international law while 

combatting this new type of terrorist threat is not easy. As one report notes:

The rise of transnational non-state terrorist organizations confounds preexisting legal categories. In a conflict so sporadic and 

protean, the process of determining where and when the law of 

armed conflict applies, who should be considered a combatant and 

what count as “hostilities” is inevitably fraught with difficulty. . . .

The legal norms governing armed conflicts and the use of force 

look clear on paper, but the changing nature of modern conflicts 

and security threats has rendered them almost incoherent in practice. Basic categories such as “battlefield,” “combatant” and “hostilities” no longer have clear or stable meaning.30

The way the United States is waging the present “transnational NIAC” has 

novel elements compared to how NIACs were fought in the past. History 

has yet to show whether this represents a paradigm shift and adaptation of 

international law or a deviation from the law.

One example of the novel aspects of the current U.S. framework is the 

level of participation in hostilities by nonmilitary U.S. personnel, such as 

OGA personnel and military contractors carrying out missions, such as 

drone strikes, as well as the reported military support to actions under the 

27 The government’s policy of “high and rigorous standards” is specified in Brennan, “The Ethics 

and Efficacy of the President’s Counterterrorism Strategy.”

28 See, for example, Michael W. Lewis, “Michael Lewis’ Response to Gabor Rona on Targeted 

Killing,” Opinio Juris (blog), 1 August 2012, http://opiniojuris.org/2012/08/01/michael-lewis

-response-to-gabor-rona-on-targeted-killing/.

29 International Humanitarian Law and the Challenges of Contemporary Armed Conflicts.

30 Gen John P. Abizaid and Rosa Brooks, Recommendations and Report of the Task Force on 

US Drone Policy (Washington, DC: Stimson Center, 2014), http://www.stimson.org/spotlight

/recommendations-and-report-of-the-stimson-task-force-on-us-drone-policy/.

74 | The Future of Drone Strikes
purview of OGAs.31 This raises questions about whether the protections 

IHL affords to combatants (combatant privilege and prisoner of war [POW] 

status if captured) apply to these individuals.32 In the specific case of drone 

strike operations, however, the questions may be primarily academic as 

many U.S. personnel involved in drone strikes operate from within the 

United States and, in any case, al-Qaeda has been known to have brutally killed U.S. and Coalition forces in Afghanistan without regard for IHL. 

However, this suggests that the military preference for drone strike operations might be preferable to an absence of such a policy from the standpoint of international law, or the spirit thereof.

On a related note, questions have also been raised about whether 

military servicemembers involved in covert actions under Title 50 would 

be entitled to the protections afforded to combatants by IHL.33 Concerns 

along these lines would be best addressed by restrictions on DOD conducting covert actions—such as the military preference policy with the additional preference that actions be under Title 10—without stricter limitations 

on OGAs, if indeed the military carries out covert actions and there are 

reasons to think that current restrictions and processes are insufficient. Appendix B notes that operating under Title 10 does not restrict the military 

from carrying out unacknowledged traditional military activities (TMAs), 

so this option might not sufficiently address this issue.

Exploring further the differences between DOD and OGAs that are 

relevant to IHL shows that DOD is explicitly obligated to comply with 

IHL; and its tactics, techniques, and procedures (TTPs) must be in accordance with international law. On the other hand, whether or to what extent 

OGAs are in practice bound by IHL and other international laws in their 

31 For example, see Eric Schmitt and Mark Mazzetti, “Secret Order Lets U.S. Raid Al Qaeda,” New 

York Times, 9 November 2008, http://www.nytimes.com/2008/11/10/washington/10military

.html?pagewanted=all&_r=2&.

32 See Joseph B. Berger III, “Covert Action: Title 10, Title 50, and the Chain of Command,” 

Joint Force Quarterly 67 (2012).

33 Marshall Curtis Erwin, Covert Action: Legislative Background and Possible Policy Questions

(Washington, DC: Congressional Research Service, 2013), http://www.fas.org/sgp/crs/intel

/RL33715.pdf.

Legitimacy | 75
actions remains unclear.34 A further difference between DOD and OGAs 

is the relatively high level of transparency in DOD’s chain of command. 

For these reasons, the military preference has the potential to provide more 

confidence in the legality of U.S. drone strike practices.

Another notable aspect of the current U.S. framework is the lack of 

limitation on the geographic scope of the U.S. campaign against al-Qaeda, 

as reflected in the AUMF. Whether this is appropriate and legal is another 

point of contention in the international community.35 What is not under 

debate is the reality that legitimate al-Qaeda–related threats have operated in multiple areas around the globe. The U.S. government attempts to 

assuage international concerns with its policy to respect nations’ sovereignty and act in a country against a threat only with that country’s consent or 

if it is unable or unwilling to effectively act against the threat.36

Another issue to consider is that three of the government’s stated standards of targeting—an individuals’ membership in al-Qaeda or an associated force, the individuals representing an imminent threat to U.S. persons, 

and a near certainty of no civilian casualties—appear to be at odds with 

the widely reported U.S. practice of “signature” drone strikes in which 

unknown individuals are targeted based on their patterns of behavior. 

Indeed, this practice is highly controversial, both within and outside of the 

United States.37 In combat zones, there is no requirement in IHL to know 

the identity of targeted individuals, so the concern lies in carrying out signature strikes outside areas of active hostilities, and is one of the controversial consequences of the geographic scope of the U.S. campaign and its 

34 Note that this uncertainty is probably by design as some OGA tactics may be more effective if 

the limits of their actions are not known.

35 See, for example, Emmerson, Promotion and Protection of Human Rights.

36 See Brennan, “The Ethics and Efficacy of the President’s Counterterrorism Strategy”; and 

Holder, “Attorney General Eric Holder Speaks at Northwestern University School of Law.” 

37 See Greenfield, “The Case Against Drone Strikes on People Who Only ‘Act’ Like Terrorists”; 

and “Letter from Congressmen John Conyers Jr., Jerrold Nadler, and Robert C. Scott to the 

Honorable Eric Holder,” 21 May 2012, https://www.propublica.org/documents/item/605043

-conyers-nadler-scott120521. Also see the minority views in Intelligence Authorization Act for 

Fiscal Year 2014, H. R. 3381, 113th Cong. (2014), https://www.govtrack.us/congress/bills/113

/hr3381.

76 | The Future of Drone Strikes
classification as an armed conflict by the United States.38 Some opponents 

have called for an end to signature strikes.39 Short of that, releasing information on the general parameters for these strikes—either by providing 

more details about the targeting process or about the targeted individuals—together with the legal rationale for these strikes could assuage some 

of this controversy, although if unconvincing, then such releases would just 

confirm concerns about signature strikes.

One final issue, noted by a UN special rapporteur, is that in an armed 

conflict, “in any case in which civilians have been, or appear to have been, 

killed, the State responsible is under an obligation to conduct a prompt, 

independent and impartial fact-finding inquiry and to provide a detailed 

public explanation.”40 This level of transparency to the public—and accountability, depending on DOD and OGA internal practices for holding 

inquiries—is not currently present in the system. Instituting an Israeli-style 

court to review instances of civilian deaths could provide a good mechanism for carrying out such investigations. These issues are revisited next, 

as one component of the larger concept of legitimacy.

LEGITIMACY ISSUES

A number of controversies about the legitimacy—to Western, international, 

and American audiences—of U.S. drone strike operations have been raised 

in the public sphere by policy proponents, academicians, defense analysts, 

lawmakers, and pundits. The issues around legality discussed above are 

among them, as legality contributes significantly to the legitimacy of these 

operations. The other issues raised fall into the categories of transparency, 

accountability, and ethical standing; however, secrecy around U.S. actions 

also plays into this topic. Select issues are discussed in this section, to38 Signature strikes are a complex topic of much importance, however, an analysis of the practice—from a legal perspective or otherwise—is outside the scope of this work. 

39 For example, Micah Zenko, Reforming U.S. Drone Strike Policies, Council Special Report No. 

65 (New York: Council on Foreign Relations/Center for Preventive Action, 2013), http://www

.cfr.org/wars-and-warfare/reforming-us-drone-strike-policies/p29736. 

40 Emmerson, Promotion and Protection of Human Rights.

Legitimacy | 77
gether with how (or if) they could be addressed by the drone strike policy 

options.

When it comes to addressing public controversies over drone strikes 

(or any other practice), note that it is the perception of legitimacy to the 

public more than legitimacy itself that will be effective. In other words, legitimate practices that lack public visibility will not mitigate public controversies, while effectively hiding illegitimate practices will keep public 

controversies from worsening. This latter reality is discussed further in the 

section below on secrecy. At the same time, note that increased transparency (and publicly outlining positive practices when their details cannot be 

released) can mitigate the former point.

Legality

The previous section outlined a number of issues for drone strikes related 

to international law. Those issues are summarized below. Concerns and 

controversies with regard to domestic law exist but are outside the scope 

of this work.

Controversy Over Specific Aspects of the United State’s Legal Rationale

Legal experts have challenged certain specific aspects of the U.S.’s legal rationale. Issues include:

• whether an armed conflict legal framework should be used in all areas 

where the government is conducting drone strikes and other such operations, as the United States has put forth;

• whether the government’s concept of an individual posing an “imminent” threat is too broad; and

• whether the geographic scope of the current CT campaign should be 

unlimited, as the United States argues.

While significant areas of controversy, these issues are not addressed by 

any of the policy options considered here.

78 | The Future of Drone Strikes
Questions about IHL Protections to Nonmilitary and Military Personnel

Some military personnel have raised questions about to what extent IHL 

protections apply to:

• nonmilitary personnel involved in drone strike operations; and41

• military personnel carrying out covert actions.42

Assuming that IHL protections do not completely carry through in these 

settings, note that the military preference policy could help address the first 

issue and the military preference policy with a Title 10 preference could 

help address the second. This suggests that the military preference policy 

may be more consistent with the spirit of some aspects of international law 

than current U.S. practices.

Lack of OGA Transparency 

At present, the extent to which OGAs comply with international law 

remains unclear. Furthermore, there is little transparency in operational 

OGA chains of command. The military does not have these issues, thus the 

military preference policy would address these concerns in the context of 

drone strikes.

The Legality of Signature Strikes and Their Consistency 

with Stated Targeting Policies

Signature strikes are highly controversial and appear not to necessarily 

meet certain stated thresholds for targeting: that the target is a member 

of al-Qaeda or an associated force, that the target represents an imminent 

threat, or a near certainty of no civilian casualties. Releasing information 

about targeting processes/standards or about targeted individuals could 

help to mitigate this controversy.

41 Berger, “Covert Action.” 

42 Erwin, Covert Action.

Legitimacy | 79
The Potential Obligation for Inquiries into and Public Explanation 

of Civilian Casualties

A UN special rapporteur has asserted that countries have an obligation 

within armed conflict to run an inquiry and provide detailed public explanation whenever civilians have been killed (or appear to have been 

killed).43 An Israeli-style drone court could provide a mechanism for this.

Transparency

Significant Information about Targeting Policy and Practices 

Are Unknown

The section that introduced the two policy options for releasing more information about targeting processes/standards and targeted individuals 

highlighted a number of important questions about drone strikes that have 

thus far gone unanswered by the government. Providing at least some of 

this information would greatly increase the transparency of drone strike 

operations.

In addition, the military preference policy would reduce the role of 

OGAs in drone strike operations. Since so little information is publicly 

available about OGA drone strike practices, these policies would also increase transparency.

Oversight by Congressional Committees Is Largely Classified

Most oversight (such as hearings) of the House and Senate Intelligence 

Committees over drone strike operations is classified and, as a result, is not 

publicly available. In addition, most of the House and Senate Armed Services Committees’ oversight related to DOD drone strikes is also classified. 

While this may be necessary, it would increase transparency if more oversight were conducted at the unclassified level and publicly released.

Certain committees might be able to more effectively declassify and 

release oversight products; in this case, the military preference policy 

would have an implication for this issue. If a preference for Title 10 drone 

43 Emmerson, Promotion and Protection of Human Rights.

80 | The Future of Drone Strikes
strikes were a part of the military preference, fewer covert drone strikes 

might be carried out and hence there would be less secrecy around drone 

strikes overall. Strike information and oversight may still be classified, but 

it would be less sensitive and perhaps more suitable for public release.

An Israeli-style drone court could be used as a tool to publicly release 

more oversight information. A FISA-like court might have an indirect, 

though perhaps marginal, effect on this issue, as the court could take some 

of the pressure for oversight off of Congress. In that case, Congress might 

regard some of its oversight proceedings as less politically sensitive and 

therefore would be more inclined to release additional information from its 

proceedings.

Finally, releasing additional targeting information would be consistent 

with a push to declassify and release drone strike information, and might 

allow the committees to release more information about their work.

Supporting and Supported Roles within an Operation Blur Legal Distinctions

As discussed earlier, the DOD may act in support of an operation that an 

OGA has the “lead” on. In fact, this type of relationship is not unusual 

within some parts of the government (and within the military itself). For 

example, a CIA specialist could be temporarily assigned to an FBI team to 

support certain domestic operations that the CIA would not be authorized 

to carry out, or military special operations forces could augment a CIA 

team in a covert operation under CIA command and control and under 

Title 50 authority.

A more extreme example would be when an entire unit from one organization is placed under tactical control of a separate “lead” agency, and 

acts with more minimal involvement from the lead agency, although the 

lead agency bears ultimate responsibility for the operation. This appears 

to have been the case for the Abbottabad raid that killed Osama bin Laden 

in 2011. In his interview on CNN following the raid, then-CIA Director 

Panetta stated that he commanded the operation, but that “the real comLegitimacy | 81
mander was Admiral McRaven because . . . he was actually in charge of the 

military operation that went in and got bin Laden.”44

These types of situations—perhaps unsurprisingly—can lead to public 

confusion around issues of authority, although authority and chain of 

command may be clear to the operators carrying out the missions.45 Public 

visibility (and perhaps even visibility from within the government) into 

these types of operations can be lacking, and carrying out this type of 

support could potentially enable organizations to skirt certain oversight 

mechanisms.

The military preference policy might make these types of situations 

rarer by imposing a partiality for the military to be the lead on drone strike 

operations and therefore not be subordinate to an OGA, although it might 

also increase the likelihood that OGA forces would operate subordinate to 

DOD. Personnel currently involved in drone strike operations should be 

able to analyze the extent to which these types of lead/supporting relationships are present during the operations, and how much the policies would 

increase or decrease the practice. Releasing additional details about targeting processes could also clarify this practice.

Accountability

Two issues are presented in this section on the topic of accountability, both 

of which focus on strike casualties.

Information Not Released After Strikes

There are those who argue that the lack of publicly released information on casualties from individual drone strikes—both targets and collateral damage—creates an “accountability vacuum.” One report asserts 

that, “We do not believe it is consistent with American values for the 

United States to carry on a broad, multi-year program of targeted strikes 

44 “CIA Chief Panetta.”

45 It has been contended, however, that Panetta’s description of the operation illustrates that 

“critical confusion exists even among the most senior U.S. leaders about the chain of command 

and the appropriate classification of such an operation.” Berger, “Covert Action.” 

82 | The Future of Drone Strikes
in which the United States has acknowledged only the deaths of four U.S. 

citizens, despite clear evidence that several thousand others have also been 

killed.”46

Releasing information on collateral damage casualties as well as successfully targeted individuals could bolster U.S. accountability, transparency, and credibility. Obviously the policy option of releasing details about 

targeted individuals would be a component of this; an Israeli-style drone 

court could provide a more complete mechanism that covers collateral 

damage casualties as well.

Inadequate U.S. Government Civilian Casualty Reporting

As discussed above, the U.S. government has no process for publicly reporting civilian casualty estimates resulting from its drone strike 

operations. More generally, the government has never released any comprehensive data on these events. Independent estimates of civilian casualties are significantly larger than the sporadic U.S. government claims of 

casualties.47 Moreover, these U.S. government claims appear to lack credibility, with official statements referring to few or zero casualties having 

been discredited in some instances.48 All this detracts significantly from 

the perceived legitimacy of the U.S. CT campaign. This issue is reflected in 

the report of the UN special rapporteur on the promotion and protection 

of human rights and fundamental freedoms while countering terrorism, 

which specifically called on the United States to release its civilian casualty 

estimates.49

46 Abizaid and Brooks, Recommendations and Report of the Task Force on US Drone Policy.

47 See part 1 of this work, “Drone Strikes in Pakistan: Reasons to Assess Civilian Casualties.”

48 For statements of few casualties, see, for example, Lee Ferran, “Intel Chair: Civilian Drone 

Casualties in ‘Single Digits’ Year-to-Year,” ABC News, 7 February 2013, http://abcnews.go.com

/blogs/headlines/2013/02/intel-chair-civilian-drone-casualties-in-single-digits-year-to-year/; and 

Scott Shane, “CIA Is Disputed on Civilian Toll in Drone Strikes,” New York Times, 11 August 

2011, http://www.nytimes.com/2011/08/12/world/asia/12drones.html?pagewanted=all.

49 Emmerson, Promotion and Protection of Human Rights.

Legitimacy | 83
As with the previous issue, an Israeli-style drone court could provide 

a mechanism for more consistent public reporting of civilian casualties, depending on how the court was set up.

Ethical Considerations

Civilian Casualties, Apologies, and Redress

Drone strikes cause civilian casualties, both as collateral damage and in 

the case of civilians being misidentified as al-Qaeda affiliates.50 This is an 

ethical issue as well as one of TME. The casualties may not meet the threshold of proportionality; in this instance, due diligence may not have been 

performed. In either of these cases, ethical questions related to the loss of 

life remain, as does an onus to minimize civilian harm going forward. The 

framework described above on the strike process and operational considerations will provide one way to predict the effect of the policy options on 

civilian casualties.

Aside from the existence of civilian casualties, questions have been 

raised about whether the U.S. government reacts adequately when civilian 

casualties occur, both in its acknowledgement of and apologies for them, 

and also about whether victims and families of victims are able to seek 

redress. The government established effective practices to apologize for accidental civilian deaths and provide reparations in Afghanistan, although 

these are not required under IHL.51 An Israeli-style drone court could 

provide a streamlined means for doing this in the future.

Stress on Populations in Operating Areas

In addition to the toll taken on victims of drone strikes and their families 

and friends, drone strikes can be traumatic for local populations. Living underneath armed drone operations, the local public can come to feel a constant fear of attack, augmented by a buzzing sound day and night in places 

50 See part 1 of this work, “Drone Strikes in Pakistan.”

51 Ibid.

84 | The Future of Drone Strikes
where the drones are audible.52 Beyond the ethical issues at play, this stress 

on the local population risks increasing radicalism and anti-Americanism.

Revealing more details about U.S. targeting policy and those suspects 

who have been targeted (the latter potentially through an Israeli-style 

drone court) could prevent the local population from seeing the strikes as 

random. It could also give the population greater control over their own 

fates by giving them ways to avoid being mistakenly targeted or becoming collateral damage, although obviously terrorists would be privy to 

this information too. Decreasing the number of drone strikes may offer 

the biggest mitigation for this problem, however, regardless of whether it 

results from the military preference policy, a FISA-like drone court, or indirectly (via a chilling effect) from an Israeli-style drone court.

Miscellaneous Issues

Room to Improve: Setting Drone Strike Precedence

One think tank reported that more than 70 countries use drones, though 

only a small minority operate armed ones.53 China reportedly considered 

using a drone strike to kill a drug lord in Burma (but captured and tried 

him instead, perhaps to avoid some of the controversies discussed herein), 

and is putting significant investment into drone technologies, including 

52 See The Civilian Impact of Drones; and Jonathan Cook, “Gaza: Life and Death under Israel’s 

Drones,” Al Jazeera, 28 November 2013, http://www.aljazeera.com/indepth/features/2013/11

/gaza-life-death-under-israel-drones-20131125124214350423.html.

53 The think tank report is cited in, Peter Bergen, “Drone Wars: The Constitutional and Counterterrorism Implications of Targeted Killing” (written testimony, U.S. Senate Committee on the 

Judiciary, Subcommittee on the Constitution, Civil Rights and Human Rights, 23 April 2013), 

http://www.judiciary.senate.gov/imo/media/doc/04-23-13BergenTestimony.pdf. Regarding the 

operation of armed drones see, for example, Weizmann, “Remotely Piloted Aircraft and International Law”; and “Reaper MQ9A RPAS,” Royal Air Force, accessed 27 June 2014, http://www

.raf.mod.uk/equipment/reaper.cfm.

Legitimacy | 85
its first stealth drone.54 Moreover, the commercial use of drones sits on the 

horizon.55

The United States is currently setting precedents for drone use, particularly for the purpose of targeted killing. Of the numerous other countries 

investing in drones, some do not share America’s values and interest in 

complying with international law, and the United States might not be satisfied with those countries carrying out drone strikes with the same level of 

transparency and so on that it practices.56 Thus, it is all the more important 

to develop responsible standards for drone use at this early stage, when 

U.S. influence is likely maximized. As CIA Director Brennan noted, “If 

we want other nations to use these technologies responsibly, we must use 

them responsibly. If we want other nations to adhere to high and rigorous 

standards for their use, then we must do so as well.”57 If the government 

firmly established high standards for the use of armed drones then, even if 

a rogue country did not adhere to the standards, the international security 

situation would likely be improved as other nations would be more likely 

to rally against the rogue nation.

54 Jane Perlez, “Chinese Plan to Kill Drug Lord with Drone Highlights Military Advances,” 

New York Times, 20 February 2013, http://www.nytimes.com/2013/02/21/world/asia/chinese

-plan-to-use-drone-highlights-military-advances.html?_r=0; and Phil Stewart, “Chinese Military 

Spending Exceeds $145 Billion, Drones Advanced: U.S.” Reuters, 6 June 2014, http://www

.reuters.com/article/2014/06/06/us-usa-china-military-idUSKBN0EG2XK20140606.

55 For example, Dara Kerr, “Amazon Delivery Drones Edge Closer to Reality,” CNET, 10 April 

2014, http://www.cnet.com/news/amazon-delivery-drones-edge-closer-to-reality/; Julianne Pepitone, “Domino’s Tests Drone Pizza Delivery,” CNN Money, 4 June 2013, http://money.cnn

.com/2013/06/04/technology/innovation/dominos-pizza-drone/; “Award-winning Scots Bakery 

Set to Use Unmanned Drones to Deliver Sweet Treats to Customers,” Daily Record, 1 April 2014, 

http://www.dailyrecord.co.uk/news/scottish-news/award-winning-scots-bakery-set-use-3320052; 

and Ryan W. Neal, “Drunk Drones: Minnesota Brewery Makes World’s First Beer Delivery with 

Unmanned Aircraft,” International Business Times (video), 17 March 2014, http://www.ibtimes

.com/drunk-drones-minnesota-brewery-makes-worlds-first-beer-delivery-unmanned-aircraft

-video-1561881.

56 John P. Abizaid and Rosa Brooks, “U.S. Should Take Lead on Setting Global Norms for Drone 

Strikes,” Washington Post, 26 June 2014, http://www.washingtonpost.com/opinions/us-should

-take-lead-on-establishing-global-norms-for-drone-strikes/2014/06/25/8183e7ea-fb0b-11e3

-b1f4-8e77c632c07b_story.html.

57 Brennan, “The Ethics and Efficacy of the President’s Counterterrorism Strategy.” 

86 | The Future of Drone Strikes
All of the policy options considered here have the potential to increase 

the standards for legality, transparency, accountability, and/or ethics in executing drone strikes and therefore to set a more stringent precedent. In 

particular, an Israeli-style court that evaluates strikes and the grievances 

of victims and their families, and increasing transparency with targeting 

policies and past strikes are options that could set especially positive and 

consequential procedural and legal precedents for drone usage.58

Drone Strikes Are Inherently a Military Activity

Implicit in many of the writings about U.S. drone strike operations is that 

these operations are inherently a military activity, and so it is proper that 

they be undertaken by the military. Indeed, they are disciplined lethal operations carried out using military weapons within what the George W. 

Bush administration termed the “Global War on Terrorism.” The military 

preference policy would better align drone strike operations with this 

perspective.

Secrecy

The extent to which the United States can engage in such operations as 

drone strikes clandestinely or covertly is to some extent an issue of military 

effectiveness, and has implications for the perception of U.S. legitimacy. 

If drone strikes were largely kept a secret from the international public or 

from those in the country in which the operations take place, this could 

support the perception that the U.S. government respects state sovereignty, which might increase the perception of U.S. legitimacy. Moreover, 

these actions may effectively help the United States achieve its CT objectives without a large ground operation, thus avoiding what might be seen 

as a more illegitimate action than a drone strike operation. Hence, effec58 One report recommends going much further in this vein than the listed policy options, urging 

the United States to “foster the development of appropriate international norms for the use of 

lethal force outside traditional battlefields.” See Abizaid and Brooks, Recommendations and Report 

of the Task Force on U.S. Drone Policy. 

Legitimacy | 87
tively maintaining the secrecy of its operations can be a tool with which the 

United States increases or maintains the perception of its legitimacy.

As noted in Appendix A, even if total secrecy is not attained but the 

strikes are not widely known, the host country may choose not to acknowledge them for diplomatic or practical reasons and, in essence, the “secret is 

safe” from the perspective of the broader international community.

This practice carries some risk, however, because if the actions done 

in secret are discovered, the backlash and perception of legitimacy could 

be more negative than if the operation had been done in the open. Moreover, with respect to drone strike operations specifically, strikes obviously 

leave evidence that they occurred (see Appendix A for further discussion). 

Given that very few nations in the world currently operate armed drones, 

the ability to attain true secrecy may be questionable.

The military preference policy, especially if it includes a preference for 

Title 10 action, could decrease the flexibility the United States has to carry 

out secret drone strike operations. This outcome thus could have both potential risks and rewards with regard to the perception of U.S. legitimacy.

SUMMARY OF LEGITIMACY ISSUES

The perception of legitimacy of U.S. drone strike operations is hindered by 

a number of issues related to legality, transparency, accountability, ethics, 

and secrecy. Changes in drone strike policy can address these issues to 

varying degrees. 

Of the policy options considered here, an Israeli-style drone court and 

releasing additional detail about targeted individuals would address the 

greatest number of issues, while a FISA-like drone court would address the 

fewest. At the same time, all of the issues listed above could be significantly addressed by at least one of the policy options considered here except 

for the controversies over the U.S.’s legal rationale, the ethical considerations of civilian casualties, and perhaps the stress drone strike operations 

cause on local populations.

88 | The Future of Drone Strikes
CHAPTER 11

89

ANTICIPATING NET EFFECTIVENESS

The Obama administration has noted that the current CT campaign “is an 

effort to dismantle a specific group of networks that pose a threat to the 

United States. . . . You cannot eliminate terrorism.”1 This speaks to an end 

goal of keeping the United States and its citizens largely safe from terrorist attack. This chapter outlines a general way to use the considerations 

raised on the previous pages to anticipate how changes in drone-strike 

policy will contribute to or detract from this goal, which we refer to as “net 

effectiveness.”2

TME and the perception of legitimacy have direct impacts on net effectiveness.3

 For instance, greater TME might mean that more al-Qaeda 

leaders are killed and hence those individuals never carry out any planned 

terrorist attacks; and a greater perception of legitimacy might mean that 

1

 “Background Briefing.” 

2

 The notion of “net effectiveness” could be broadened considerably; arguably any U.S. actions 

abroad have both an immediate goal (such as using CT operations to increase safety from terrorist 

attacks) as well as goals of maintaining or furthering Western and American values and interests. 

A more extensive analysis along the lines of what is presented here could incorporate these much 

broader goals. 

3

 A similar point to this—and the further discussion in the paragraphs below—could be made 

for OME and SME just as well as for TME. Here as in the rest of this work, however, the focus 

is restricted primarily to TME. 
anti-American sentiment would decline and fewer people would be motivated to perpetrate terrorist attacks against the nation and its interests.

TME and legitimacy are also interrelated. They can bolster one another; 

for example, a greater perception of legitimacy can result in increased operational support from allies, such as increased intelligence sharing and allowing the use of their airspace, which could lead to more accurate and 

timely targeting, among other things. At the same time, improvements to 

targeting and operating procedures could mean that fewer civilian casualties accrue, which bolsters U.S. legitimacy.

On the other hand, TME and legitimacy can also be at odds with one 

another. For instance, releasing certain specific details about U.S. standards 

for targeting may add greatly to the transparency of the process but allow 

terrorists to avoid drone strikes. Alternatively, the U.S. government might 

achieve greater military success by not taking steps to avoid civilian casualties and other collateral damage, but it would come at the cost of the nation’s ethical standing and adherence to international law.

Consider that a successful foreign-based terrorist attack entails:4

• the individual or group of terrorists being personally motivated to 

carry out the attack;

• a failure to stop the attack by the United States and the international 

community; and

• a failure to stop the attack by the nation from which it was based.

The discussion that follows explores each of these three aspects, and considers how increased perceived legitimacy and TME of U.S. drone strike 

operations could affect each. While numerous secondary effects could stem 

from such increases, the discussion below attempts to focus on those that 

are relatively immediate. Policymakers and other interested parties are en4

 Due to our focus on U.S. drone strikes abroad, the scope of this discussion is limited to terrorists who plan or launch attacks from abroad vice “homegrown” terror. More specifically, in 

accordance with stated U.S. policy discussed above, the focus is on only foreign-based attacks 

from nations that consent to U.S. operations or are unable or unwilling to act against the given 

threat to the United States. 

90 | The Future of Drone Strikes
couraged to consider deeper analysis along these lines in the context of the 

types of specific scenarios most relevant to their situations.

The individual or group of terrorists being personally motivated to 

carry out the attack. Disenfranchisement and other factors are linked to 

radicalization, in general, while negative perceptions of the United States 

and the West lead to anti-Americanism specifically.5 Negative perceptions 

of the United States and the West can be increased by the perception that 

the U.S. CT campaign is illegitimate; alternatively, they can be decreased 

by the perceived legitimacy of U.S. actions. Anti-American sentiments also 

can result from poor military and security effects, such as civilian casualties, or terrorist leaders recruiting and encouraging terrorist action without 

disruption by military forces. Thus, the perceived legitimacy and TME of 

U.S. drone strikes (or the lack thereof) could affect the personal motivations of would-be terrorists—both in the local area that strikes take place 

and more widely around the world.

Failure to stop the attack by the United States and the international 

community. Increased TME and/or sufficient intelligence might contribute 

to the United States and the international community being better able to 

stop a terrorist attack. Obviously, the greater the TME, the more likely that 

drone strikes would successfully prosecute their targets and thus disrupt 

terror plots, and the less likely that individuals who further U.S. security 

(e.g., local leaders) would be mistakenly killed. Increased TME in areas 

such as these and perceived legitimacy could garner greater support from 

the local population, making it more inclined to support intelligence collection and actions by U.S. forces (e.g., by allowing greater freedom of action 

for U.S. forces). Conversely, TME has the potential drawback that successful targeted killings result in a dead end with respect to intelligence collection, since suspects are killed rather than captured and therefore cannot be 

questioned. Other potential sources of intelligence, such as computers, may 

also be destroyed by strikes.

5

 The link between disenfranchisement and radicalization is discussed in Tori DeAngelis, 

“Understanding Terrorism,” APA Monitor 40, no. 10 (November 2009), http://www.apa.org/

monitor/2009/11/terrorism.aspx.

Anticipating Net Effectiveness | 91
92 | The Future of Drone Strikes

The level of support the United States receives from allied and (a 

priori) neutral nations—which may include the nation where strikes will 

take place in or third-party nations—would be bolstered by the perceived 

legitimacy of U.S. operations (and vice versa). Note that such support 

could include things like sharing intelligence, providing Coalition forces 

for operations, or allowing U.S. forces to base on their land or transit via 

their roads, airspace, or territorial waters, all of which could increase military and net effectiveness.

Failure to stop the attack by the nation from which it was based. Contributing factors might include such things as insufficient intelligence, ineffective internal security forces, and/or a lack of political will. The extent to 

which U.S. actions, and drone strike operations in particular, affect these 

points would depend on the relationship the country in question—call it 

the nation containing the target (NCT)—has with the United States. For our 

purposes, this relationship can be thought of as falling along a continuum 

that goes from working fully with the United States on CT operations to 

not cooperating with or even actively working against U.S. interests.

If the NCT cooperates with the United States, then greater legitimacy 

of U.S. operations could make the local NCT population more sympathetic 

to the NCT and U.S. campaign, and therefore more inclined to provide accurate intelligence, to support broader freedom of action by NCT security 

forces, and to give more political support to the NCT for these actions. Political support could further encourage the NCT government to carry out 

operations against the terrorists in question. In addition, U.S. TME would 

bolster the ally NCT’s TME, if the United States is providing military 

support to NCT operations. However, if the NCT government is unpopular with the local population, these gains would be diminished and might 

even be maximized by not publicizing U.S. cooperation with the NCT 

government.

If the NCT does not cooperate with the United States, then the TME 

and legitimacy of U.S. drone strike operations would likely have a more 

minimal effect on the NCT’s ability to stop the attack, although the NCT 

might have more political will to attempt to disrupt the terrorist plot if 
Anticipating Net Effectiveness | 93

U.S. actions abroad are seen as legitimate. If the United States was using 

drone strike operations against the threat, however, and that practice was 

viewed as legitimate and resulted in minimal collateral damage, then tensions would not rise as much between the United States and the NCT than 

would be the case if U.S. strikes were viewed as less legitimate or accrued 

more collateral damage. Tensions with the NCT could also decrease if U.S. 

operations were effective and did kill local al-Qaeda leaders and their local 

political or military constituencies disbanded. There would also be the possibility, however, that the NCT would actively counter U.S. operations. 

In this case, increased TME could help the United States to defeat these 

actions. These considerations are summarized in table 2.

Instead of comparing outcomes from U.S. drone strike operations in 

the NCT to those of U.S. strikes that have a greater perception of legitimacy and are more militarily effective, one can compare these scenarios 

with other alternatives, such as the United States choosing not to act in 

Table 2. Potential advantages of increased TME and perceived legitimacy 

Effect of:

Effect on: Increased U.S. TME Increased perceived U.S. legitimacy

Individual terrorist • Anti-American sentiment reduced through 

fewer civilian casualties and other collateral damage

• Radicalization or plot not fully developed 

due to leader being effectively targeted

• Anti-American sentiment reduced

U.S. and international 

community’s actions 

against the threat

• More plots disrupted

• People who further U.S. security are less 

likely to be killed

• More popular support leading to increased 

local intelligence and freedom of action

• Increased support from allies

• More popular support leading to 

increased local intelligence and 

freedom of action

NCT’s actions against 

the threat—ally case

• More popular support leading to increased 

local intelligence and freedom of action for 

NCT forces

• More political will for NCT to act

• Better enable NCT forces

• More popular support leading to 

increased local intelligence and 

freedom of action for NCT forces

• More political will for NCT to act

NCT’s actions against 

the threat—nonally 

case

• Reduced escalation between United States 

and NCT or increased ability to defeat 

active countering of drones by NCT

• More political will for NCT to act

• Reduced escalation between 

United States and NCT

• More political will for NCT to act
the NCT or, at the other extreme, pursuing the threat with ground troops. 

This would generate a separate calculus with different implications. For 

example, the use of drone strikes in an NCT that is not an ally would be 

more escalatory and of greater risk to U.S. security than no action in the 

NCT, but would likely be less escalatory than sending in ground troops.

In light of this discussion, the following steps are recommended to 

evaluate the potential net effect of a drone strike policy:

• Using the considerations in the previous sections, determine the extent 

to which the policy furthers the TME and the perceived legitimacy of 

drone strike operations;

• Apply to table 2 (or a more detailed product that focuses on a particular scenario of interest) to yield the extent to which the items in 

the cells of the table could be expected.

• Use the considerations in the previous sections to determine any risks 

to TME and perceived legitimacy the policy would entail;

• In a similar fashion, determine OME and SME implications as desired;

• Consider effects of changes in TME and perceived legitimacy, as well 

as any determined effects on OME and SME, on either bolstering or 

hindering one another, as discussed earlier in this chapter; and

• Analyze all of these factors in concert to achieve a prediction of the net 

effect.

Note that carrying out such an analysis of the five policy options considered here will require the details of the intended implementation of the 

options, as well as input from operators and others familiar with current 

drone strike practices.

94 | The Future of Drone Strikes 
CHAPTER 12

95

CONCLUSIONS AND RECOMMENDATIONS

The previous chapters presented a framework with which to systematically consider the effects of drone strike policy changes, with a focus on 

TME, legitimacy, and a methodology for anticipating net effectiveness. This 

chapter summarizes the findings for each of the policy options considered 

and provides some concluding remarks for the discussion from Part II.

THE MILITARY PREFERENCE

Instituting a preference that the military perform drone strikes—guidance 

issued by President Obama in May 2013, but with implementation interrupted as a result of congressional actions—would add transparency and a 

stronger expectation of legality to drone strike practices since the military’s 

doctrine, operating procedures, and chain of command structure are relatively well understood and are known to be aligned with international law. 

IHL protections for military personnel also indicate that this option would 

be better aligned with the spirit of the law.

Ironically, the lack of transparency of the content of the presidential guidance is currently an impediment to analyzing its implications, 

with the guidance itself classified, as well as the legislation that Congress 

passed that reportedly limits its implementation. Releasing the content of 

President Obama’s guidance would seem to be in the spirit of the guidance 

itself, although as with all the other options discussed here, a cost/benefit 

analysis (using the framework presented above) would be in order.
96 | The Future of Drone Strikes

The military preference policy would have implications on oversight 

and accountability of drone strikes, as DOD falls under different oversight 

mechanisms than OGAs. The effects of these implications are not immediately clear, but could be analyzed by those directly involved in drone strike 

processes. In particular, a comparison of the oversight by the House and 

Senate Armed Services Committees with that of the House and Senate Intelligence Committees could provide highly relevant insight. The military 

preference would also likely impact TME—perhaps in both positive and 

negative ways—and operators and other involved personnel would be in 

the best position to assess these risks and potential rewards as well.

An evaluation of the military preference policy should focus primarily 

on determining its anticipated effects on TME, oversight, and accountability. Those effects should be evaluated against the additional transparency 

and alignment with international law the policy could afford.

A specific preference for drone strikes to be employed under Title 10 

could be included as a part of this option.1 If, in practice, the restrictions 

this entails effectively lessen the secrecy around drone strike operations 

(see Appendices A and B), then this option would provide for additional 

transparency at the cost of more limited options for drone strike operations. Such limitations could increase diplomatic and operational risks.

A FISA-LIKE DRONE COURT

The proponents of a FISA-like court, which would authorize drone strikes, 

note that from a legal perspective, this practice might be comparable to a 

court approving a warrant based on probable cause, as is the case for the 

FISA court.2 Nonetheless, this option appears to raise the most legal questions (with respect to U.S. law). One report puts forth that “Such a court 

would likely be unconstitutional because it would violate the separation 

of powers and would be asked to render advisory opinions rather than 

1

 Recall that a strike being carried out under Title 10 would mean it was necessarily employed 

by the military, as a TMA, or otherwise as an action that does not meet the definition of covert 

given in Title 50.

2

 Joint Special Operations: Task Force Operations.
rule on actual cases and controversies. The result would be to give a patina 

of legitimacy to a ruling for summary execution following a one-sided 

argument.”3 To those who wonder why a FISA-like drone court would be 

problematic when a warrant-issuing FISA court is legal, a retired federal 

judge noted that “the answer is simple: a search warrant is not a death 

warrant.”4 Moreover, in an armed conflict, a FISA-like drone court would 

be an intrusion into battlefield decision making and contrary to the chain 

of command and, outside of an armed conflict, it could be at odds with 

such requirements as a target being an imminent threat.5 This again raises 

the issue of the United States’ relatively expansive meaning for “imminent 

threat.”

Legal questions aside, a FISA-like court could bolster the legitimacy 

of drone strike practices by adding additional oversight to the process, 

thereby arguably setting a better precedent for the military use of drones. 

This additional oversight could result in reduced collateral damage and 

other unintended consequences, and could encourage the government to 

release some information about individual drone targets after strikes are 

completed. Those who currently execute drone strikes should use the 

framework given earlier to determine further tactical and operational 

effects this option might have, such as whether it would slow down the 

targeting process and, if so, whether that extra time, together with the additional oversight, would lead to better or worse TME overall.

It is worth noting that the FISA court this policy is modeled after 

confers only limited legitimacy to the U.S. government’s collection of electronic communications. The court is controversial—it reportedly approved 

all but one of more than 8,000 requests it received from 2009 to 2013, and 

3

 How to Ensure that the U.S. Drone Program Does Not Undermine Human Rights: Blueprint for 

the Next Administration (New York: Human Rights First, 2012, 2013 rev.), http://www.humanrightsfirst.org/wp-content/uploads/pdf/blueprints2012/HRF_Targeted_Killing_blueprint.pdf.

4

 James Robertson, “Judges Shouldn’t Decide about Drone Strikes,” Washington Post, 15 February 

2013, https://www.washingtonpost.com/opinions/judges-shouldnt-decide-about-drone-strikes

/2013/02/15/8dcd1c46-778c-11e2-aa12-e6cf1d31106b_story.html.

5

 How to Ensure that the U.S. Drone Program Does Not Undermine Human Rights.

Conclusions and Recommendations | 97
98 | The Future of Drone Strikes

is viewed as a rubber stamp by many.6 If a FISA-like drone court would be 

expected to behave similarly, these types of controversies might outweigh 

any increased legitimacy the process would confer.

Overall, however, the primary considerations for a FISA-like drone 

court appear to be its legality with respect to U.S. law and the overall effect 

it would have on TME.

AN ISRAELI-STYLE DRONE COURT

An Israeli-style court would review drone strikes after they occur. It could 

be implemented in a number of different ways, with various options for 

who oversees the court, to what extent (if any) its findings would be released to the public, and the criteria to determine what strikes it investigates. The court could potentially increase the accountability and 

transparency of drone strike operations, and could provide a means to 

communicate targets’ terrorist activities to the public or to provide redress 

to innocent drone strike victims and their families. As discussed above, the 

UN special rapporteur sees these latter activities as legal requirements.7

This option could be used as a mechanism for public reporting of civilian casualty numbers. Risks include the potential for a chilling effect on 

strike operations in anticipation of this layer of oversight, and the potential 

public backlash if strikes were found to be done improperly. As with the 

FISA-like court, it would be worth evaluating the level of legitimacy the 

Israeli courts confer on drone strikes in Israel to get a sense for the potential pitfalls of this option.

Thus, depending on how Israeli-style court procedures would be implemented, it could play a variety of different roles and bolster U.S. legitimacy to various degrees depending on these roles. The main issues here 

6

 See, for example, Bryan Denson, “FISA Court, which Approves FBI, NSA Surveillance, Faces Reform Challenge from Oregon Senators,” Oregonian, 26 November 2013, http://www.oregonlive

.com/news/index.ssf/2013/11/fisa-court-oregon-nsa-surveillance.html. The FISA court requests 

were reported in Colin Schultz, “The FISA Court Has Only Denied an NSA Request Once 

in the Past 5 Years,” SmartNews, Smithsonian, 1 May 2014, http://www.smithsonianmag.com

/smart-news/fisa-court-has-only-denied-nsa-request-once-past-5-years-180951313/?no-ist.

7

 Emmerson, Promotion and Protection of Human Rights.
Conclusions and Recommendations | 99

would be to decide on the optimal implementation of the court based on 

the most important areas of legitimacy to be addressed and on how well 

drone strike practices would stand up to various levels of scrutiny, as well 

as any indirect operational impacts.

RELEASING DETAILS ABOUT TARGETING

The two independent policy options in this category are (1) releasing more 

information about the United States’ targeting processes and standards, 

and (2) releasing details about targeted individuals after a strike has occurred, as could be done through an Israeli-style drone court or otherwise. 

Either of these options could significantly increase transparency for drone 

strike operations, thereby bolstering U.S. credibility, assuming processes 

are sound and strikes are not found to have been done improperly.

All the policy options considered here have the potential to hinder U.S. 

military effectiveness through increased transparency, giving adversaries 

more information about operations that could be used to avoid being targeted. However, for these two policy options, this risk is especially high.

Providing details about targeted individuals would be an unusual 

measure to take during an armed conflict. Releasing information that 

harkens to “evidence” might give the impression that drone operations 

have legal obligations like those of law enforcement, when the U.S. government’s position in the current context is that they do not. This situation 

could raise additional controversy and further confuse perceptions of the 

legal framework the U.S. government is using.8

Some of the current issues surrounding accountability could be addressed by releasing details about targeted individuals. As a caution, 

however, note that releasing partial information and/or releasing information related only to certain strikes might backfire by drawing more attention to the information that is not released, thereby making the public 

8

 Perceptions of the United States’ legal framework may be confused by the fact that some of the 

current policies and doctrinal standards surrounding drone strikes already harken to the notion 

of “evidence,” such as President Obama’s stated requirement for “near certainty” that civilian 

casualties be avoided. Obama, “Remarks by the President at the National Defense University.” 
and the international community even more suspicious of U.S. drone strike 

secrecy and practices.

In short, these two policy options have the potential to greatly increase 

the transparency of drone strike operations, but could also potentially 

entail significant risk to U.S. operations depending on the type of information released. Thus, the specifics of any proposal along the lines of these 

options should be carefully evaluated and the corresponding trade-offs 

considered.

OVERVIEW OF INITIAL FINDINGS FOR ALL POLICY OPTIONS

An overview of these findings on the policy options is presented in table 3.

Table 3 shows that the policy options considered have the potential to 

significantly improve the perception of the legitimacy of drone strike operations, particularly an Israeli-style drone court and releasing information 

about targeted individuals, but also all potentially pose risks to military 

effectiveness. However, this is not an “apples to apples” comparison: two 

cells with the same label do not necessarily indicate identical—or even 

comparable—effects. Rather, the specific considerations within the body 

of this work should be taken into account. Furthermore, any effects would 

also depend on the specifics of the implementation of each policy option. 

Moreover, the policy options are not mutually exclusive—there are no restrictions against implementing more than one option and, in fact, this may 

be desirable.

FINAL THOUGHTS

The policy options presented in Part II indicate that there are likely no 

silver bullets that would bolster (or not hinder) the military effectiveness 

of drone strikes while staying within the confines of international and domestic law, increasing transparency, and so on. Each of these options addresses some of the current issues and controversies with drone strikes, 

and yet there are issues that are not addressed by any of them—including 

unresolved issues related to international law—or are only minimally ad100 | The Future of Drone Strikes
dressed, most notably the ethical considerations of civilian casualties and 

the effects of drone campaigns on local populations.

In the context of this unfortunate lack of simple solutions, the framework and discussion presented here offer a means with which to consider at least some of the consequential issues related to drone strikes, and 

provide a tool for determining the implications of proposed changes to 

drone strike operations.

Conclusions and Recommendations | 101

Table 3. Potential effects of policy options on military effectiveness and identified legitimacy issues

Military 

preference

FISA-like 

court

Israeli-style 

court

Release 

information 

about targeting process/ 

standards

Release 

information about 

targeted 

individuals

Impacts on 

military 

effectiveness

Tactical 

strike steps

Effect likely; 

best assessed 

by relevant 

personnel

Effect likely; 

best assessed 

by relevant 

personnel

Effect likely; 

best assessed 

by relevant 

personnel

Adversaries’ actionsPotential of 

worsening 

conditions

Potential of 

worsening 

conditions

Potential of 

worsening 

conditions

Potential of 

worsening 

conditions

Potential of 

worsening 

conditions

Addressing 

legitimacy 

issues

Legality Potential 

improvements

Potential 

improvements

Potential 

improvements

Potential 

improvements

TransparencyPotential 

improvements

Potential 

improvements

Potential 

improvements

Potential 

improvements

AccountabilityPotential 

improvements

Potential 

improvements

Ethical considerationsPotential 

improvements

Limited 

potential 

improvements

Limited 

potential 

improvements

MiscellaneousPotential 

improvements

Potential 

improvements

Potential 

improvements

Potential 

improvements

Potential 

improvements

Issues 

around 

secrecy

Effect likely; 

best assessed 

by relevant 

personnel

Note: potential improvement and potential worsening of conditions are noted, along with areas where an 

effect is likely but best assessed by DOD, OGA, and other relevant personnel. Blank cells indicate that no 

effects are noted.

I M P R O V I N G L E T H A L 

ACTION

LEARNING AND ADAPTING 

IN U.S. COUNTERTERRORISM OPERATIONS

BY LARRY LEWIS

PART III

INTRODUCTION

The United States uses lethal force to eliminate individuals it believes pose 

an imminent terrorist threat to its citizens and interests, as well as those 

of its allies and partners. Such force includes actions taken on the battlefield for declared theaters of conflict, such as Afghanistan. But lethal force 

has also been used outside areas of active hostilities, such as Yemen, Pakistan, and Somalia. Lethal actions in these particular countries have become 

much more frequent since 2008, and they are often—though not always—

successful in killing the targeted individuals. The use of force, however, 

can also unintentionally kill civilians. These civilian casualties are tragic 

and also result in other negative consequences on the ground, such as 

loss of income for households and stigmatization of civilians mistakenly 

targeted.1

Civilian casualties also reduce the overall effectiveness of the U.S. 

counterterrorism (CT) effort.2 This negative effect is the result of multiple 

factors, including alienating local populations, reducing their willingness 

to provide intelligence, and creating grievances that can lead to the creation of more terrorists; failing to disrupt the threat if the action did not kill 

the intended individuals; delegitimizing America’s CT efforts in the eyes 

1

 See Civilian Impact of Drones.

2

 For more discussion of this point, see Lewis, Drone Strikes in Pakistan.

CHAPTER 13

105
106 | Improving Lethal Action

of directly or indirectly affected foreign populations; and creating political 

difficulties with our allies and partners.3

Given the real potential of negative outcomes from the use of lethal 

force to undermine U.S. CT efforts, including future uses of lethal force, it 

would seem prudent for the American government to put in place an effective operations analysis framework and lessons-learned process to ensure 

that it adapts its CT operations for maximum success. Yet, at least publically, this appears to not be the case. As such, Part III will seek to address 

this deficiency by presenting an analytic framework and lessons-learned 

process that the U.S. government should use to continually improve the 

effectiveness of its lethal force operations and reduce the likelihood of civilian casualties in the future.

BACKGROUND

The Need for Lethal Action

On 11 September 2001, al-Qaeda struck down thousands of innocent civilians on American soil. The United States still faces an ongoing security 

threat from al-Qaeda and its associated forces, including attacks on U.S. 

forces and interests on foreign soil and continuing operational planning 

for further attacks. The government endeavors to address this threat in a 

number of ways, including working with partner nations to improve their 

security capacity for addressing al-Qaeda threats within their borders and 

addressing underlying governance and economic issues that can lead to 

radicalization and support to terrorist groups. However, sometimes other 

3

 Senator Elizabeth A. Warren summarized the strategic risks thus: “Do we talk seriously about 

the price our great nation, built on the foundation of life, liberty, and the pursuit of happiness, 

may pay if others come to believe that we are indifferent to the deaths of civilians? Do we fully 

take into account the effect on our interests if people around the world are inflamed by such 

casualties, or if they do not believe that our actions align with our values?” Senator Elizabeth Warren, “Collateral Damage, National Interests, and the Lessons of a Decade of Conflict” (lecture, 

Annual Whittington Lecture, Georgetown University, 26 February 2014).
Introduction | 107

nations are unwilling or unable to address these threats directly. In these 

cases, the United States can resort to direct action against terror threats.4

Direct action includes both capture operations and the use of lethal 

force (e.g., airstrikes, raids). The former is preferable when feasible; pursuing this option is consistent with both U.S. policy and international law, 

and is operationally advantageous because of potential intelligence gains.5

While there are examples of successful U.S. capture operations outside of 

declared theaters of conflict, several factors impact the feasibility of this 

option in some situations.6 As a result, U.S. direct action involving lethal 

force (subsequently referred to as lethal action) is an important component 

of the CT campaign outside areas of declared hostilities. For example, the 

government uses lethal force in CT operations in Yemen and Pakistan, as 

well as in Iraq against the Islamic State of Iraq and the Levant (ISIL).

Lethal Force Operations: Balancing Objectives

The use of lethal force can have both positive and negative impacts on U.S. 

objectives in the context of counterterrorism operations—positive impacts 

from successful missions that kill the intended target, and negative impacts 

4

 Direct action is defined as “short-duration strikes and other small-scale offensive actions conducted as a special operation in hostile, denied, or diplomatically sensitive environments and 

which employ specialized military capabilities to seize, destroy, capture, exploit, recover, or damage designated targets.” See Department of Defense Dictionary of Military and Associated Terms.

5

 Capture also sends a strategic message that terrorists are criminals operating outside of acceptable 

international norms compared to soldiers in a legitimate conflict. This distinction is consistent 

with national policy: “We must use the full influence of the United States to delegitimize terrorism and make clear that all acts of terrorism will be viewed in the same light as slavery, piracy, or 

genocide: behavior that no respectable government can condone or support and all must oppose.” 

National Strategy for Combatting Terrorism (Washington, DC: CIA, 2003), 23–24, https://www

.cia.gov/news-information/cia-the-war-on-terrorism/Counter_Terrorism_Strategy.pdf.

6

 For example, the 2013 capture of Abu Anas al-Libi in Libya for his role in the 1998 bombings of 

U.S. embassies in Kenya and Tanzania. The issues of legal custody, sovereignty, and force protection can all complicate or preclude capture operations.
from civilian casualties during these operations.7

 Successful missions and 

civilian casualties have short- and long-term impacts on the overall CT 

campaign (table 4). 

Successful Missions: Impacts

In the near term, effectively dealing with a threat through lethal action can 

neutralize or delay a specific threat to the United States.8 For example, in 

July and August 2013, a series of drone strikes sought to disrupt a terror 

plot in Yemen targeting Western assets.9 Besides disrupting specific threats, 

the strikes also affected the terror network. The impact of this action can 

vary; in some cases, resulting gaps in terror networks are filled quickly 

from below, while in other cases the proficiency and/or experience of the 

individual are not easily filled, resulting in a more significant near-term 

7

 Other outcomes also can negatively impact lethal action operations, including friendly fire, 

targeting of host-nation forces or assets, and harming hostages in rescue operations. However, as 

the most widely discussed negative outcome in national CT guidance is civilian casualties, the 

treatment of negative impacts here will focus on this issue.

8

 Lethal operations can also have a deterrent effect on host-nation domestic terrorist activity. See, 

for example, Patrick B. Johnston and Anoop K. Sarbahi, “The Impact of U.S. Drone Strikes on 

Terrorism in Pakistan and Afghanistan” (unpublished paper, Annual Meetings of the American 

Political Science Association, the Belfer Center for Science and International Affairs at Harvard 

University’s Kennedy School of Government, and the New America Foundation, 2011), http://

patrickjohnston.info/materials/drones.pdf.

9

 Greg Miller, Anne Gearan, and Sudarsan Raghavan, “Obama Administration Authorized Recent Drone Strikes in Yemen,” Washington Post, 7 August 2013, https://www.washingtonpost

.com/world/national-security/us-personnel-evacuated-from-yemen-after-al-qaeda-order-to

-attack-is-revealed/2013/08/06/2c984300-fe88-11e2-96a8-d3b921c0924a_story.html.

108 | Improving Lethal Action

Table 4. Short- and long-term effects of mission success and CIVCAS

Mission success CIVCAS

Short-term effects

Neutralize specific threat

Disrupt terror network

Buy time for other approaches

Increase popular support to terror 

networks (insurgent math)

Decrease host-nation government 

support

Long-term effects

Degrade operational capability of 

terror networks

Deny sanctuary

Discourage recruiting efforts

Decreased perceived legitimacy and 

freedom of action

Feed long-standing grievances that 

fuel instability and terror networks
impact. Conversely, ineffective strikes can complicate operations in the 

short term by alerting the individual or group being targeted.

In the long term, effective operations can damage the operational capabilities of terrorist networks by removing key individuals with highly 

valued skills that cannot easily be replaced. They can also deter terrorist 

activities in targeted areas, complicating recruitment and denying sanctuaries in areas where host nations could or would not act. Ineffective operations can, in the long term, betray intelligence techniques or sources and 

make follow-on operations more challenging. Also, in some scenarios, the 

number of opportunities is limited (and becoming even more so over time), 

so ineffective operations represent significant setbacks. Ineffective strikes 

also can include cases where the wrong person is inadvertently targeted, 

which can cause outrage and alienation within the local population.

Civilian Casualties: Impacts

At the same time, negative second-order effects from strikes, such as civilian casualties, can temper or completely blunt the benefits of CT efforts. 

In the short term, even an effective strike can galvanize the local community to support terrorist networks if the strike results in civilian casualties. The effect, called “insurgent math” by General Stanley McChrystal in 

Afghanistan, can result in net growth of the terrorist network rather than 

net attrition.10 The effect of insurgent math can be magnified in the case of 

civilian casualties.11 Overall, civilian casualties from these operations may 

create grievances that radicalize populations, increase support for terrorist 

elements, and degrade the political will of the United States and partner 

10 The concept of insurgent math is based on the idea that for every innocent person killed, 10 

new enemies are created. See Sean D. Naylor, “McChrystal: Civilian Deaths Endanger Mission,” 

Army Times, 30 May 2010.

11 This point was exemplified by Gen McChrystal: “When we fight, if we become focused on 

destroying the enemy but end up killing Afghan citizens, destroying Afghan property or acting 

in a way that is perceived as arrogant, we convince the Afghan people that we do not care about 

them. If we say, ‘We are here for you—we respect and want to protect you’ while destroying their 

home, killing their relatives or destroying their crops, it is difficult for them to connect those two 

concepts. It would be difficult for us to do the same.” Gen Stanley McChrystal, “Question and 

Answer” (remarks, International Institute for Strategic Studies, London, 1 October 2009).

Introduction | 109
nations for action. In addition, negative second-order effects can reduce 

freedom of action by decreasing host-nation support, as well as decreasing 

perceived legitimacy of the United States in the eyes of domestic and international audiences.

In addition to the negative impacts that stem from civilian casualties, 

negative impacts can also come from false allegations concerning civilian 

casualties. The allegations may arise from misunderstandings, particularly due to a lack of recognition among the local populace that the targeted 

individual(s) were in fact terrorists and combatants. However, they can 

also be deliberate efforts by terrorist groups or others to create a negative 

perception of the United States and sway certain audiences. Typically, allegations can provide the first impression of the operation, and this incorrect 

impression can be a lasting one. For example:

• In Afghanistan, after a Taliban improvised explosive device (IED) prematurely detonated in a city center in southern Afghanistan, Taliban 

elements blamed the explosion on an International Security Assistance 

Force (ISAF) airstrike. ISAF did not respond effectively to the allegation; as a result, even a year later, locals still believed the story to be 

true, creating resentment and lack of cooperation with international 

forces.12

• In Iraq, when a U.S. operation against foreign fighters in a safe house 

was falsely portrayed by terrorists as killing women and children in a 

wedding party, U.S. forces were slow to respond. To this day, the true 

nature of the target is widely misunderstood.13

Contesting allegations is complicated in covert and clandestine operations, 

but involvement of the host nation in consequence management—as was 

done in Afghanistan in later years—is one way to deal with this challenge. 

The ability to contest such allegations is one reason why it is important 

12 Sewall and Lewis, Joint Civilian Casualty Study.

13 Transition to Sovereignty: Joint Lessons Learned for Operation Iraqi Freedom (Suffolk, VA: JCOA, 

2007).

110 | Improving Lethal Action
to have a process for evaluating the presence of civilian casualties during 

operations.

MANAGING POSITIVE AND NEGATIVE IMPACTS:

 THE ROLE OF GUIDANCE

The authority to use force carries many responsibilities, such as the 

creation of guidance and policy to define and govern when force may be 

used, processes to gain approval for operations, and overall intent for the 

use of force. The guidance informs the operational approach, including the 

targeting process, intelligence allocation, requirements for pattern of life 

determinations, tactics, and training in support of operations.14

The United States has refined its guidance regarding lethal force in CT 

operations over time. The most recent guidance comes from the May 2013 

Presidential Policy Guidance (PPG), which focuses on the effective use of 

lethal force against the most significant security threats to the nation.15 The 

PPG aims to ensure that lethal force conforms to U.S. laws, is only used 

when no other option exists, and meets two primary criteria:

• Operations are effective against the threat; and

• Operations avoid negative second-order effects that can both limit 

freedom of action and undercut progress against terrorist organizations (e.g., civilian casualties).16

As a result of conflicting impacts from effective missions and civilian casualties discussed above, lethal force operations attempt to meet both of 

these objectives when possible. This is not just true for U.S. CT operations 

in Pakistan and Yemen. For example, airstrikes against ISIL have focused 

14 Pattern of life determinations are the characterization of normal trends of activity, including 

both suspected threats and civilians. 

15 The PPG is summarized in the unclassified announcement by the White House, Office of the 

Press Secretary, “Fact Sheet.”

16 Ibid. Other stated criteria in the PPG collectively amount to a requirement that no feasible 

alternatives exist to effectively address the imminent threat.

Introduction | 111
on targets away from heavily populated civilian areas to minimize the risk 

of civilian casualties, and counterinsurgency and counterterrorism operations in Afghanistan also sought to meet these objectives.

Yet guidance for the use of force—no matter how well intentioned—

does not always have its desired effect. Afghanistan is an instructive 

example. When combat operations caused a significant number of civilian 

casualties in 2007—harming progress in the campaign as well as the relationship with the host nation government—then-Commander, International Security Assistance Force (COMISAF) General Dan K. McNeill issued a 

tactical directive in June 2007 to reduce civilian casualties in ISAF operations, with goals and guidance similar to what would later be seen in the 

2013 PPG.17 Despite the guidance, however, the intent was not met, with 

significant civilian casualty incidents occurring throughout 2007 and 2008. 

Several subsequent tactical directives were released by General David D. 

McKiernan, but they had a similar—that is, negligible—effect on reducing 

the level of civilian casualties.18

It was not until a revised directive was issued in 2009 that some improvement could be seen in ISAF forces’ efforts to reduce civilian casualties. A further revision, issued in 2010, was even more effective. 

Similarly, Special Operations Forces (SOF) made changes to their operations in 2010–12 that both reduced civilian casualties and improved 

mission success. What made the difference? Guidance prior to 2009 provided intent but was uninformed with respect to the causal factors that 

contributed to civilian casualties, which limited the utility of the guid17 For more information, see Jennifer Keene, Civilian Harm Tracking: Analysis of ISAF Efforts in Afghanistan (Washington, DC: Center for Civilians in Conflict, 2014), 3, http://civiliansinconflict

.org/uploads/files/publications/ISAF_Civilian_Harm_Tracking.pdf.

18 Lewis, Reducing and Mitigating Civilian Casualties.

112 | Improving Lethal Action
ance.19 In contrast, two elements made the difference in the improvements 

for 2009 and 2010. In 2009, leadership emphasized existing guidance. The 

2009 tactical directive was not substantively different than previous guidance, but the commander and subordinate echelons heavily emphasized 

the content, improving consistent implementation and promoting creative 

problem solving at the tactical level.20 The biggest improvement occurred 

in 2010, when General Petraeus implemented a revised tactical directive, 

which included additional considerations that reflected lessons from early 

incidents, allowing forces to learn from past experiences rather than repeat 

mistakes. These results show the benefit of evaluating performance, understanding key drivers of success and failure, and then revising guidance to 

reflect an improved understanding.

19 In a similar example, U.S. forces struggled with limiting civilian casualties during escalationof-force incidents. Analysis showed that existing doctrine, and much equipment, was optimized 

for one root cause of civilian casualties based on experiences in Bosnia, however, the majority of 

incidents in Afghanistan did not share this root cause. Later guidance reflected this disconnect 

between guidance and operational reality, and civilian casualties decreased. See Lewis, Reducing 

and Mitigating Civilian Casualties.

20 Ibid.

Introduction | 113
CHAPTER 14

114

AN ANALYTICAL APPROACH TO IMPROVE 

LETHAL ACTION OPERATIONS

Given the historic limitations of guidance that achieves its stated intent, it 

is worthwhile to consider how U.S. counterterrorism operations have performed with respect to the goals of the PPG issued in 2013. This chapter 

presents an analytical approach (figure 5) that answers this question but 

also identifies and addresses shortfalls with three elements:

• Context: involves determining the scope of mission success, as well as 

negative effects, during operations. This element includes operational 

trends, detailed analysis on specific aspects of operations, and a diagnostic “report card” for senior leaders on progress made in the two 

PPG objectives discussed above.

• Cause: involves identifying specific factors (root causes) that lead to 

undesired effects to facilitate learning lessons from the past and inform 

adaptation.

• Conduct: marries cause with context to identify tailored changes to 

guidance and approach to improve the success of future missions 

while minimizing unintended consequences.

The first element provides context and directly addresses the desired 

balance in the PPG. It answers such questions as: 
An Analytical Approach to Improve Lethal Action Operations | 115

• How effective are operations overall? 

• How do operations by type and action arm vary in mission success? 

• How frequent are civilian casualties during operations? 

• When do they tend to occur? 

The second element answers the question of “why,” for example: 

• Why did the missions not successfully eliminate the intended target?

• When operations cause civilian casualties, what are the contributing 

factors that played a role? 

Context: scope of mission success and negative effects

Causes: factors leading to undesired effects

Conduct: changes to guidance and approach based on observed causes

Operations eliminated threat Negative second order effects

Sensor limitations

Enemy tactics

Holes in 

guidance or training

Miscommunication

Limited intelligence

Guidance (e.g., PPG)

Training

Target selection

Materiel solutions

Tactics

Figure 5. Analytical approach to improve lethal force operations
116 | Improving Lethal Action

Finally, by comparing the first two factors, we can arrive at an understanding of specific areas for improvement to inform subsequent guidance and 

operational approaches—and not repeat mistakes.

As will be shown, this approach offers a number of positive outcomes. 

It can ensure guidance is best suited to meet its intent and inform revisions 

to that guidance over time. It can also achieve the traditional outcome of 

operations research, which is to improve the operational effectiveness of 

U.S. lethal action missions. The following sections examine the components of the framework in more detail, and illustrate them with data. Since 

information on these operations is classified, the analysis here cannot use 

official operational data. Where open source data are available, however, 

they will be used to illustrate the analytical approach.

ELEMENT 1: CONTEXT

For the first element, operations are examined to quantify the scope of both 

mission success and negative impacts that occur during operations to understand current performance and identify potential areas where improvement is possible. This analysis includes: mission success; civilian casualties; 

and a diagnostic “report card” for senior leaders on progress made regarding the two PPG objectives.

Mission Success

The first step in establishing context is to examine mission success. For our 

purposes, that means characterizing lethal action operations and analyzing 

their operational effectiveness. There are three components to this characterization. The first is mission profiles, or the number and nature of operations. Mission profiles include a description of:

• operational tempo: the number of operations over time;

• types of targets: both physical (e.g., vehicles, buildings) and organizational (e.g., senior leaders, facilitators);
An Analytical Approach to Improve Lethal Action Operations | 117

• types of operations conducted: manned airstrike, drone strike, raid, 

etc.; and

• subsets of the above for operations conducted by specific forces, military or otherwise.

The second component is mission effectiveness, which can be viewed as 

progress toward the positive impacts of lethal action shown in table 4. For 

example, for the goal of killing a particular individual who has been identified as a threat, one appropriate measure could be the success rate for 

lethal action against targeted individuals.1

 Another measure is the number 

of combatants killed per strike. While attrition is not the primary goal of 

U.S. CT operations using lethal force, attrition can disrupt terrorist networks by removing trained militants from the battlefield and causing a deterrent effect to prospective recruits, so tracking this measure can be useful.

The final component to be assessed is the number of proposed targets 

for which an action (e.g., raid or airstrike) could not be completed. Two 

sets of targets are relevant here: actions that could not be taken because 

of insufficient intelligence for the strike, and those that could not be acted 

upon because of PPG restrictions, such as civilian casualties. This distinction between targets helps characterize the magnitude of the barrier to 

conducting operations due to intelligence requirements and other PPG restrictions. The analysis should also include a discussion of adversary approaches that complicate lethal action and targeting criteria. Determining 

these adversary countermeasures overall and for specific periods—either 

annually or (optimally) according to dates that delineate changes in policy 

and guidance—helps understand the interplay between these changes and 

overall mission success.

These measures should be evaluated for the total set of operations as 

well as for key subsets, including:

• specific target types ( e.g., building, vehicle, gathering);

1

 Estimates of progress on other short- and long-term goals will necessarily rely on intelligence to 

estimate the wider effects of lethal action.
• specific echelons of targets (e.g., leaders, mid-level commanders, specialists, etc.);

• nature of operations (e.g., drone strike, manned aircraft strike, unilateral raid, partnered raid, combination);

• preplanned versus fleeting targets; and

• comparing operations by different action arms.

This analysis will highlight areas of success, as well as point out potential 

areas for improvement. For example, examining the subsets listed above 

may provide additional information on factors that drive overall trends 

(e.g., specific types of targets that tend to impact mission success or potential differences between preplanned and fleeting target sets). This examination both informs the conduct of future operations and focuses root cause 

analysis (discussed later) to determine specific reasons for these differences. In addition, such analysis informs operational decision making for 

prospective operations so that historical factors are accurately taken into 

account.

These measures provide insight into near-term targeting performance, 

particularly in terms of the country’s ability to successfully take specific 

targets off the battlefield. There is also a need to assess the effect of these 

operations on the threats to the nation that predicated the lethal action, 

which requires a more intelligence-centric analytical effort that assesses 

threat streams and the likely effects of past U.S. operations. This effort 

should include examples of specific terrorism plots disrupted through 

lethal operations, as well as an assessment of the broader effect of lethal 

force on enemy networks.

Civilian Casualties

The other major objective of the PPG focuses on ensuring that noncombatant civilians are not killed or injured during U.S. lethal action operations. 

Assessing civilian casualties during lethal action operations begins with a 

118 | Improving Lethal Action
raw total number of civilian casualties, which can be compared across different periods (years, or possibly other dates that coincide with changes in 

guidance or operational approaches). While civilian casualties technically 

include both killed and wounded, typically it is more difficult to obtain 

totals of wounded than it is for those killed.2 So, in cases where wounded 

estimates are difficult to obtain reliably, the number of civilians killed 

usually acts as a surrogate metric for total civilian casualties.3

Although the total number of civilian casualties is useful for understanding the magnitude of the toll of lethal actions on civilians, it is insufficient for determining progress. For example, ISAF tracked the total number 

of civilian casualties from its operations per year and touted progress when 

the number decreased, but this data neglected significant factors—such as 

operational tempo and operating environment—that can also affect the toll 

on civilians. For example, if civilian casualties decreased by 10 percent over 

some period but the number of operations during that time dropped by 50 

percent, then the metric for total civilian casualties shows apparent progress. Yet in this case, an average operation would have been more likely to 

cause civilian casualties after the decrease in the total, putting into question 

the claim of improved care during operations. Normalizing the number of 

civilian casualties by the number of operations (or a rate of civilian casualties per operation) can put casualties in operational context and indicate 

whether operations are more or less likely on average to cause such casualties over time. Similarly, the rate of civilian casualty incidents per the total 

number of operations indicates the relative propensity of operations to 

cause civilian casualties.

Another measure focuses on the relative lethality of incidents, or how 

many casualties on average result from an operation where civilian casualties occur. For example, in Afghanistan, when civilian casualties resulted 

2

 Reasons include varying definitions of injuries that count as wounded, as well as the greater 

chance of injuries going unreported.

3

 For more on this topic, particularly ISAF’s role in measurement and the Civilian Casualty 

Tracking Cell, see Bob Dreyfuss and Nick Turse, “America’s Afghan Victims,” Nation, 18 September 2013, http://www.thenation.com/article/americas-afghan-victims/.

An Analytical Approach to Improve Lethal Action Operations | 119
during checkpoint operations, the average number of casualties remained 

relatively small (e.g., approximately one casualty for incidents involving 

individuals, and two casualties for incidents involving vehicles). In contrast, airstrikes tended to result in a higher number of casualties per incident. In addition to highlighting differences in civilian casualties based on 

the types of operations, this measure was also useful in showing greater effectiveness in guidance over time in Afghanistan, as the average number of 

casualties per civilian casualty incident—an operation where civilian casualties occurred—dropped significantly following the issuance of improved 

guidance.4 For context, another useful measure is the average number of 

civilian deaths per operation, which illustrates the average number of civilian deaths that could be expected to result from a typical operation.

These measures should also be broken out by type of operation and 

by action arm. Similar to the measures for mission success, this analysis 

will highlight areas of success as well as point out potential areas for improvement with respect to avoiding civilian harm during operations. This 

measure provides context to the subsequent stages of the analytic framework described later.

Report Card: Relationship between Mission Success and Civilian Casualties

The two objectives of improving mission success and reducing civilian 

casualties may be in conflict at times, and indeed it can be a considerable 

challenge to conduct operations effectively and simultaneously minimize 

such negative second-order effects as civilian casualties (figure 6). 

In this scenario, an effort to increase mission success from condition A 

to condition B would carry a commensurate cost of an increase in civilian 

casualties. This scenario also implies that the requirement to reduce civilian casualties would induce a decrease in mission success.

Yet while this assumption has been voiced by some military forces directly, and by news reporting indirectly, the relationship between mission 

success and civilian casualty rates is not necessarily always direct. In fact, 

4

 Lewis, Civilian Casualties: Enduring Lessons.

120 | Improving Lethal Action
An Analytical Approach to Improve Lethal Action Operations | 121

A

Civilian casualties

Mission success

B

Figure 6. Perceived tension between mission success and CIVCAS

Figure 7. Common relationship between mission success and CIVCAS in Afghanistan

A

Civilian casualties

Mission success

B

Better

Worse
122 | Improving Lethal Action

for CT operations in Afghanistan, the relationship appeared to be more in 

line with that depicted in figure 7.

As illustrated above, an effort to improve mission success would also 

decrease civilian casualties, which would subsequently increase mission 

success. The optimum outcome is represented by the upper left quadrant 

of the chart. Fortunately, these two objectives can in some ways be mutually reinforcing. For example, many of the measures taken to reduce civilian casualties—improved pattern-of-life analysis, improved intelligence 

requirements, better coordination, and situational awareness—also work to 

enhance mission success. However, realizing that such a relationship exists 

came as a result of careful attention to improving mission success, reducing 

civilian casualties, and optimizing guidance and operational approaches to 

this end. Such a mutually reinforcing relationship between these two goals, 

where they both improve simultaneously, is unlikely to result without an 

intentional and informed effort.

Given the twofold criteria of the PPG aiming for both mission success 

and avoiding civilian casualties, it is worthwhile to determine the relationship between these two factors. A hypothetical example using notional 

data can be seen in figure 8.5

In figure 8, operations from 2010 to 2011 and from 2013 to 2014 move 

toward the upper left quadrant of the chart as mission success and avoidance of civilian casualties improve simultaneously, consistent with the aims 

of the PPG. From 2012 to 2013, however, an improvement in reducing civilian casualties came at the same time that mission success decreased; and 

from 2011 to 2012, decreases are apparent in both PPG goals.

These results are summarized in table 5; this kind of table can be used 

as a report card for senior leaders regarding progress in meeting the two 

PPG objectives. In the table, each year is color-coded to show the extent to 

which operations achieved the aims of the PPG per changes in operations 

that year compared to the previous year. Green indicates both an increase 

5

 Note that, while the PPG is dated May 2013, the stated aims of the PPG—effectively dealing 

with the threat and avoiding civilian casualties—had been discussed for years prior to the release 

of this guidance.
An Analytical Approach to Improve Lethal Action Operations | 123

Percent operations resulting in civilian casualties

Percent operations sucessfully target leader

Better

Worse

2014

0

10

20

30

40

50

60

2013

2011

2012

2010

5 10 15 20 25

Figure 8. Relationship between mission success and CIVCAS

Table 5. Hypothetical report card for meeting PPG goals

Year Mission success improved? Civilian casualties less likely?

2011  

2012  

2013  

2014  
in mission success (or no significant change) and a reduction (or no significant change) in the rate of civilian casualties; red indicates that mission 

success decreased while the rate of civilian casualties increased; and yellow 

indicates that one of the two PPG aims was achieved but not the other. 

Based on data shown in the figure above, the table shows that operations 

in 2011 and 2014 were more successful in approaching the aims of the PPG, 

while there was room for progress in 2013. In contrast, operations in 2012 

met neither of the PPG aims.

Note that there may be good reasons for a period of operations coded 

yellow or even red. For example, a change in enemy tactics to hide within 

the population could both increase the rate of civilian casualties and increase the number of cases where civilians were misidentified as terrorists, resulting in less successful operations. Consequently, the context step 

should be accompanied by the next step—cause—described below. 

While this approach uses changes from year to year to assign colors, 

it is also possible to assign absolute requirements for operations and then 

grade operations relative to those requirements. For example, operations could be assigned threshold requirements of 70 percent for mission 

success and 1 percent for a civilian casualty rate. In this arrangement, the 

operational performance would be graded according to those stated requirements. This graded approach has the advantage of avoiding cases 

where excellent performance one year does not increase the likelihood of 

a marginal or failing grade the next year. However, such thresholds would 

require up front agreement. If this approach were followed, reasonable 

thresholds should be determined through a process referencing previous 

operational data. For example, civilian casualty rates were determined for 

several kinds of operations in Afghanistan, so such data already exists and 

should be consulted.

ELEMENT 2: CAUSE

This element of the analytic approach involves identifying specific 

factors—root causes—leading to undesired effects to facilitate learning 

lessons from the past and to inform adaptation. The previous stage—

124 | Improving Lethal Action
context—highlights areas of progress and areas where improvement is 

possible. However, further analysis is needed to identify the root causes 

of areas where operations fell short of goals, which can then be used to 

develop tailored improvements to guidance and operational approaches 

(i.e., the conduct element).

This process begins with data-centric reconstructions of individual incidents of interest: incidents where mission success was not achieved, civilian casualties were incurred, or both. Operational data should be a primary 

source, but data from other sources should also be factored in, including 

that from international organizations (e.g., the UN, ICRC), nongovernmental organizations, and media reports. After the reconstruction step, which 

results in identifying contributing causal factors, further analysis finds 

common trends in these causal factors to ascertain the main root causes of 

specific outcomes.

The process described here is distinctly different than that for a standard after action report (AAR) process, where any root cause analysis is 

done for a single incident in isolation, and lessons are typically not effectively shared across different units or operations. In contrast, by collectively considering causal factors for multiple incidents by different units 

and operations, as is done here, this process can reveal larger patterns to 

focus efforts for reducing civilian harm or improving mission success on 

the most productive areas. In Afghanistan, that collective analysis process 

revealed a number of factors leading to civilian casualties that had not 

been previously identified, such as certain target sets not being addressed 

in guidance, certain scenarios not being adequately covered in doctrine, 

and equipment/capabilities not supporting the targeting process for select 

situations.

ELEMENT 3: CONDUCT

This element looks at ways to change the conduct of future operations to 

promote both mission success and reduced civilian casualties through tailored modifications to guidance and operational approaches. It should be 

noted that this aim is partially achieved through regular adaptation that 

An Analytical Approach to Improve Lethal Action Operations | 125
occurs with a learning force. For example, in Sadr City, Baghdad, Iraq, in 

2008, U.S. forces combined new tactics, massed and fused intelligence, 

precision weapons, and other innovative procedures and command and 

control arrangements to mitigate civilian casualty concerns while also 

aiding the tracking of targets. This adaptation provided freedom of action 

to use force effectively against a fleeting enemy operating in an urban 

area.6

At the same time, many examples show where adaptation came 

slowly or inconsistently within the force. Thus, the analytic framework 

and lessons learned process described here may accelerate and optimize 

the normal learning process for operations. This analysis recommends tailored changes to guidance and approach based on actual observed causes, 

taking the root causes identified above and informing them with operational trends, pointing out specific areas of challenges and their relative frequency and importance. These changes represent concrete steps to address 

those challenges in future operations. One such challenge in guidance is incorporating specific scenarios that were not adequately addressed, putting 

in place tactics or procedures to improve the fidelity of intelligence, deciding on a specific action arm or weapon platform, improving training for a 

certain kind of operation, or elevating risk factors associated with specific 

target sets or environments.

Importantly, changing conduct to adapt to new lessons learned should 

not be a one-time process. As causes are successfully identified and addressed in operations, improvement should result. Yet new factors also 

may arise as tactics change or the enemy adapts. Hence, the process should 

be repeated periodically—say, every 6 or 12 months—where performance 

is reassessed, the need for additional changes is identified, and guidance 

and operational approaches are adapted accordingly.

6 Lewis, Civilian Casualties: Enduring Lessons.

126 | Improving Lethal Action
CHAPTER 15

127

ILLUSTRATING THE APPROACH

Previous chapters of Part III described the analytic framework in conceptual and theoretical terms. This chapter takes the theory and puts it 

into practice using available data to illustrate the framework and lessons 

learned approach and its potential benefits. Ideally, data for a single case 

study would be available to demonstrate the approach from start to finish. 

However, such is not the case (at least publically) for U.S. lethal-action CT 

operations. The specific examples we use to demonstrate the approach are 

as follows:

• Context: analysis of mission success and civilian casualties using opensource data on U.S. operations in Yemen and Pakistan, followed by a 

report card for those operations.

• Cause: a vignette of a high-profile civilian casualty incident, followed 

by root-cause analysis of civilian casualties from drone operations in 

Afghanistan.

• Conduct: a discussion of specific changes to guidance and operational 

approaches made in Afghanistan that were prompted by analysis.

These examples aim to show how this process can yield additional insight 

into operational performance and enable improved adaptation and learn-
128 | Improving Lethal Action

ing to promote mission success and reduced civilian casualties in future 

operations.

CONTEXT: YEMEN AND PAKISTAN

One salient aspect of assessing the context of operations is the mission 

profile. Figure 9 shows the number of U.S. counterterrorism operations 

per year in Pakistan and Yemen, using available data maintained by New 

America Foundation (NAF).1 These data provide information about operational tempo, which is useful for understanding the ability to conduct operations—depends on intelligence and freedom of action—as well as the 

overall context for more detailed analysis. Note that the figure shows data 

for the first half of 2014, so the significant drop in 2014 compared to 2013 is 

at least partially due to the shorter time period. In addition, no operations 

took place in Pakistan for the first six months of 2014.

From the figure, it is clear that the number of overall operations has 

decreased in the past few years. From 2010 to 2012, an average of 100 operations took place per year. During this time, the operations shifted from 

being almost entirely in Pakistan to being divided equally between Pakistan and Yemen. In 2013, however, the number of operations decreased by 

about half of previous levels; operations in 2014 were on pace for further 

reduction.

Not all data elements mentioned in the previous chapter—such as 

types of operations and the identity of units involved—are available in 

open-source data. However, target types are included in data extracted 

from media reporting, so analysis of that element will be used here as an 

example for the overall analytic process. Operations in Pakistan and Yemen 

featured a number of different target types: buildings (homes, businesses, 

and madrassas), vehicles (cars and motorcycles), a combination of vehicles 

and buildings, and gatherings of people. Figure 10 shows the distribution 

of target types for operations in Yemen and Pakistan, as characterized in 

1

 See Singh, “A Meta-Study of Drone Strike Casualties.”
Illustrating the Approach | 129

0

30

60

90

120

150

2002 2003 2004 2005 2006

Year of operation

Number of operations

Pakistan

Yemen

2007 2008 2009 2010 2011 2012 2013 2014*

Source: Data from New America Foundation as of 4 August 2014 on http://securitydata.newamerica.net/. 

0

10

20

30

40

50

60

70

80

Building Vehicle Combination

Target type

Percent of targets

Pakistan

Yemen

Unknown Gathering

Figure 10. Target type distribution for lethal action operations in Pakistan and Yemen, 2012–14

Source: Data from New America Foundation, http://securitydata.newamerica.net/.

Figure 9. Lethal action operations per year in Pakistan and Yemen
NAF’s database.2

 Some target types could not be determined, which are 

included in the figure as “unknown.”

Per figure 10, target sets for operations in Yemen and Pakistan are 

significantly different—most of the operations in Pakistan targeted buildings, while operations in Yemen targeted vehicles. In addition, about 1 in 

10 operations in Pakistan targeted a combination of buildings and vehicles 

simultaneously; no such events occurred in Yemen over the timeframe analyzed.3

 Similarly, several events in Yemen targeted gatherings of people, 

with at least one of them believed to be a terrorist training camp.

Another component of assessing the context of operations is mission 

success, which has a number of different aspects. This section focuses on 

the relationship between mission success and target types to illustrate the 

larger analysis process with available data. For example, figure 11 shows 

the success in killing senior leaders by target type (when known) for operations in Yemen and Pakistan.4

Overall, operations in Yemen were more likely to successfully target 

senior leaders. In addition, actions against different target sets were more 

successful in Yemen and Pakistan. For Yemen, an operation targeting vehicles was about three-and-a-half times more likely to result in the death of 

a senior leader than an operation targeting buildings. This statistic is quite 

different from Pakistan, where targeting success for senior leaders was 

about equal for both target types.

Another metric to consider is the total number of terrorists (legally, 

characterized as combatants) killed during an operation. Figure 12 shows 

the average level of attrition from operations in Yemen and Pakistan, both 

2

 These figures are based on operations in Pakistan and Yemen between 2012 and 2014 to highlight any country-specific differences, since there were considerable numbers of operations occurring in both countries during that timeframe. Data on individual operations came from NAF.

3

 Only one combination event took place during U.S. operations in Yemen, occurring on 14 

October 2011. This event led to the death of two senior leaders and also resulted in an estimated 

9–15 civilian casualties.

4

 This aggregates NAF data for individual airstrikes, indicating target type and whether senior 

leaders were killed during individual strikes. Determination of “senior leader” was made in the 

NAF database.

130 | Improving Lethal Action
Figure 11. Percent of lethal action operations that successfully targeted a senior leader, by target type

Source: Data from New America Foundation, http://securitydata.newamerica.net/.

Figure 12. Maximum/minimum combatant casualties from lethal action operations with different target types

Source: Data from New America Foundation, http://securitydata.newamerica.net/.

0

5

10

15

20

25

30

35

Total Vehicle Building Combination Gathering

Combatants killed per operation

Y P Y P Y P Y P Y P

Target type

Illustrating the Approach | 131

0

5

10

15

20

25

30

35

Total Building Vehicle

Target type

Percent of lethal action operations

Pakistan

Yemen

Combination Gathering
overall and for specific target types. The data source provides a minimum 

and maximum combatant casualty number for each operation based on 

differing media reports, so average minimum and maximum values are 

provided.

In figure 12, the average combatant numbers of those killed in action 

(KIA) are about the same for operations in Yemen and Pakistan. For different target types, the casualties from engagements at buildings tend to 

be larger than those for vehicles. Also, engagements at buildings in Yemen 

cause about twice as many casualties as those in Pakistan. This could reflect 

differing pattern-of-life factors—that combatants are more likely to congregate in buildings in Yemen vice Pakistan—or that weapons employment, 

either in terms of ordinance or tactics, is significantly different in the two 

operations. For example, if engagements in Yemen routinely employ 500-

pound bombs, while engagements in Pakistan use Hellfire missiles, then a 

larger attrition effect could be anticipated in Yemen operations due to the 

larger area of weapon effect (all other things being equal). Combination 

events, such as an operation that targeted both a building and a vehicle, 

occurred primarily in Pakistan, and had casualty numbers close to that for 

building targets. Operations targeting gatherings showed casualty levels 

several times higher than those for other target types.

The discussion here focuses on specific types of targets and one echelon 

of targets (senior leaders). With access to official data, additional analysis could address the different echelons of targets and the relative success 

of preplanned versus fleeting targets. In addition, analysis could be done 

with a focus on the nature of the operation (e.g., drone strike, manned aircraft strike, unilateral raid, partnered raid, combination, etc.) and the relative success of these approaches. In addition, operations by different action 

arms could be compared in terms of overall mission success—the average 

percentage of operations that successfully dealt with their intended 

target—as well as in terms of specific kinds of operations to show strengths 

and possible areas of improvement for each force. Examining these subsets 

could provide additional information on factors that may drive overall 

trends (e.g., specific types of targets that tend to be less successful, or po132 | Improving Lethal Action
tential differences between preplanned and fleeting target sets). This both 

informs the conduct of future operations and focuses root cause analysis 

(discussed later) to determine specific reasons for these differences.

As mentioned above, another important component to be assessed 

is the number of proposed targets that could not be attacked, including 

those that could not be developed sufficiently to provide supporting intelligence for the strike and those that could not be acted upon because of 

other PPG restrictions. This analysis helps characterize the magnitude of 

the barrier to conducting operations due to intelligence requirements and 

other PPG restrictions. It should also include a discussion of adversary approaches that complicate lethal action and targeting criteria. Unfortunately, 

we cannot present sample analysis here for these elements due to a lack of 

open-source data.

The previous discussion addressed mission success, one of the major 

objectives of the PPG. The other major objective is preventing civilian casualties during U.S. lethal action operations. While U.S. official data on civilian casualties during these operations has not been released, open-source 

data are available and will be used here to illustrate the proposed analytical process for evaluating civilian casualties from the use of lethal force. 

Several sources are available for the drone strikes subset of U.S. CT operations, including the Bureau of Investigative Journalism (BIJ) and the New 

America Foundation (NAF). These two sources support agreement overall, 

particularly after treating the NAF “unknown” status casualties as civilian, per international humanitarian law considerations.5

 BIJ data are used 

here because they include operation types other than drone strikes, giving 

a more comprehensive dataset for the present analysis.

For illustrative purposes, these measures are included in table 6 using 

BIJ data for Pakistan and Yemen. These numbers show the peril of relying 

on only the numbers of civilian casualties—or in this case, civilian deaths—

without other metrics to provide context. From the data below, civilian 

deaths in Pakistan from U.S. operations were more than twice those com5

 See Lewis, Drone Strikes in Pakistan, for more discussion of this point. The author confirmed 

the validity of this interpretation of IHL per a communication with ICRC, May 2014.

Illustrating the Approach | 133
pared to deaths from operations in Yemen. When considering the other 

measures, however, operations in Yemen were only somewhat lower in 

their likelihood of causing civilian deaths (15 percent versus 19 percent) 

and caused the same number of deaths per incident.

These metrics can also be considered over time. For example, the percentage of total operations resulting in civilian deaths (CIV K incidents/

operation from table 6) is shown in figure 13 for both Pakistan and Yemen. 

This metric is shown beginning in 2009 (the first year of CT operations in 

Yemen) through the first half of 2014. In this figure, the percentage of operations in Pakistan causing civilian deaths decreased over time, reaching 

zero in 2013 and 2014; the decline of civilian casualties is clearly within the 

intent of the PPG. In contrast, the likelihood of civilian casualties in Yemen 

operations varies over time, first dropping after 2009 from a maximum of 

34 percent, but then ranging between 10 percent and 24 percent in subsequent years, in contrast to the clear drop over time in Pakistan. In fact, the 

civilian casualty rate in Yemen rises from a minimum in 2012 to double 

that rate in 2014, conflicting with the intent of the 2013 PPG.

Figure 14 shows the lethality of incidents (i.e., the average number of 

civilians killed when civilian casualties occurred). This metric is shown beginning in 2009 (the first year of CT operations in Yemen) through August 

134 | Improving Lethal Action

Table 6. Overall civilian death statistics for Pakistan and Yemen through August 2014*

Pakistan Yemen

Overall lethal action operations 384 176

Civilians killed (CIV K) 416 152

Operations where CIV were killed (CIV K incidents) 73 27

Average CIV K/operation 1.1 0.9

CIV K incidents/operation (percent) 19 15

CIV K/CIV K incident 5.6 5.6

* BIJ includes a range of values for casualty numbers. This table uses the minimum values to provide a conservative 

measure of the civilian toll. 

Note: after 16 July 2014 through the end of August, there were seven drone strikes in Pakistan. For completeness, these 

operations were also included in the dataset analyzed here.

Source: Bureau of Investigative Journalism, current as of 16 July 2014 on https://www.thebureauinvestigates.com/category/

projects/drones/drones-graphs/.
0

5

10

15

20

25

30

35

2009 2010 2012

Year of operation

Percent of operations causing deaths

Pakistan

Yemen

2011 2013 2014

Figure 13. Percent of lethal action operations causing civilian deaths, by year

Source: Bureau of Investigative Journalism, https://www.thebureauinvestigates.com/category/projects/drones/

drones-graphs/.

Figure 14. Average civilian deaths per incident, by year

Source: Bureau of Investigative Journalism, https://www.thebureauinvestigates.com/category/projects/drones/

drones-graphs/.

0

1

2

3

4

5

6

7

8

9

10

2009 2010 2012

Year of operation

Average number civilian deaths per incident

Pakistan

Yemen

2011 2013 2014

Illustrating the Approach | 135
2014. In this figure, five civilians were killed on average for an incident in 

Pakistan between 2009 and 2011; after this, the lethality of operations decreased sharply to one civilian killed on average in 2012 and zero in 2013 

and 2014. For Yemen, the average in 2009 is very high due to a single incident with 44 civilian deaths. After this, the average lethality decreased 

to a range between three and six civilians killed per incident for the fouryear period from 2010 to 2013, and then dropped further to an average of 

one-and-a-half killed per incident for the first half of 2014. Overall, both 

Pakistan and Yemen operations showed a decreasing trend in lethality over 

time, consistent with the intent of the PPG. For Yemen, however, the decrease in lethality was countered by the increase in the rate of civilian casualty incidents for operations in Yemen in 2014.

Figure 15 illustrates the average number of civilian deaths that could 

be expected to result from a typical operation. For Pakistan operations, 

the average civilian toll decreases steadily from 2009 down to zero in 2013 

and 2014. For Yemen, after 2009 with its single high-casualty incident, this 

number ranges between 0.3 (in the first half of 2014) and 0.5 deaths per 

incident, with the exception of 2011, where it spiked to 1.5. This spike is 

due to a simultaneous increase in the civilian death rate and the lethality of 

incidents for that year. The lowest value for the first half of 2014 is driven 

Figure 15. Average civilian deaths per operation

Source: Bureau of Investigative Journalism, https://www.thebureauinvestigates.com/category/projects/drones/

drones-graphs/.

136 | Improving Lethal Action

0.0

0.5

1.0

1.5

2.0

2.5

3.0

3.5

4.0

4.5

5.0

2009 2010 2012

Year of operation

Average number civilian deaths per operation

Pakistan

Yemen

2011 2013 2014
by the low lethality rate of incidents, despite an increase in the percentage 

of operations causing civilian deaths.

Overall, an analysis of open-source data for civilian deaths in lethal 

action operations in Pakistan and Yemen shows some progress in meeting 

the stated U.S. intent to reduce civilian casualties during operations. In 

Pakistan, the likelihood of civilian casualties per airstrike decreased over 

time, and dropped to zero after the release of the 2013 PPG. In comparison, 

the use of lethal force in Yemen has not shown the same reduction in civilian casualties; while the lethality of incidents decreased in the first half of 

2014, the frequency of operations causing civilian casualties showed an increase in recent years, even after the issuance of the PPG.

The measures provided above should also be broken out by type of 

operation and by action arm. However, these statistics are generally not 

available in open-source data and cannot be illustrated here. But one area 

can be examined in more detail—characteristics of drone strikes versus 

other kinds of operations. BIJ is particularly interested in drone strikes; 

so for operations in Yemen, they have specifically researched CT operations to determine whether each operation represents a drone strike.6

 In 

some cases, they have reliable information that indicates an operation was 

in fact a drone strike. For other operations, BIJ cannot identify whether 

they are drone strikes, manned airstrikes, ground raids, or a combination thereof; for our purposes, these are referred to as “other operations.” 

While it would be preferable to know the specific type of engagement for 

all operations, the existence of two groups—drone strikes and other operations—allows a comparison of civilian casualty attributes for one group 

(confirmed drone strikes) compared with another (unknown—possibly 

manned aircraft strike, drone strike, or ground operation) (table 7). 

In Yemen, per this dataset, approximately 40 percent of operations fall 

under the category of “confirmed drone strikes.” However, this type of operation is responsible for the majority of civilian casualties—more than 80 

percent of the total number of civilian deaths. The table also provides some 

6

 In Pakistan, all operations are believed to be drone strikes.

Illustrating the Approach | 137
reasons for this statistic: the group of confirmed drone strikes has almost 

twice the civilian deaths per incident compared to the other group; and 

drone strikes are almost four times more likely to cause civilian casualties 

per operation. While this observation should be considered tentative until 

the comparison is repeated with operational data, a similar trend—with 

a higher civilian casualty rate for drone strikes compared to other types 

of operations—has been seen previously. This finding will be discussed 

further in the benefits section.

Report Card for Operations in Yemen and Pakistan

To build a report card regarding operations in Yemen and Pakistan and to 

demonstrate how well they met U.S. objectives outlined in the PPG, the 

relationship between mission success and avoiding civilian casualties must 

first be determined (figure 16).

In figure 16, mission success is represented by the percentage of operations successfully targeting senior leaders. For Pakistan from 2012 to 2013, 

operations move toward the upper left quadrant of the chart, with mission 

success and avoidance of civilian casualties improving simultaneously, 

consistent with the aims of the PPG.7 At other times, however, an improve7

 It could be considered unfair to find that, for example, operations in Pakistan in 2012 fell short 

of the full aims of the PPG, since the PPG did not exist then. However, it is useful in this context 

to consider historical performance and whether these aims were achieved during operations. At 

the same time, expectations should be higher for operations in 2013 and 2014, since these aims 

were more explicit in the guidance.

138 | Improving Lethal Action

Table 7. Comparing CIVCAS from drone strikes and other operations in Yemen

Yemen Confirmed drone strikes Other operations

Overall number of operations 69 107

Civilians killed (CIV K) 124 28

Operations where CIV were killed 

(CIV K incidents)

19 8

CIV K/CIV K incident 6.5 3.5

Rate of civilian deaths per operation 

(percent)

27.5 7.5

Source: Bureau of Investigative Journalism, https://www.thebureauinvestigates.com/category/projects/drones/

drones-graphs/.
ment in one of the two criteria came at the expense of the other. For Yemen, 

a decrease in the frequency of civilian casualties from 2011 to 2012 came 

at the cost of decreased mission success. And, contrary to the aims of the 

PPG, from 2012 to 2014, mission success dropped over time while the civilian casualty rate increased. Thus, in Yemen, operations became less likely 

to satisfy both PPG criteria during this time.

These results are summarized in table 8, which shows year-to-year 

changes that are color-coded to illustrate the extent to which operations 

achieved the aims of the PPG. Green indicates both an increase in mission 

success and a reduction in the rate of civilian casualties; red indicates that 

mission success decreased while the rate of civilian casualties increased; 

and yellow indicates that one of the two PPG aims was achieved but not 

the other. Based on the table, Pakistan operations have been more successful in approaching the aims of the PPG, though there is still room for improvement in 2014. In contrast, Yemen operations over the past two years 

appear to be meeting neither of the PPG aims. From this report card, the 

analytic process described here could reasonably start with a focused effort 

supporting Yemen operations.

Figure 16. Relationship between mission success and CIVCAS

Source: author analysis based on Bureau of Investigative Journalism data, https://www.thebureauinvestigates.com/category/

projects/drones/drones-graphs/.

Illustrating the Approach | 139

Percent operations resulting in civilian casualties

Percent operations sucessfully target leader

Better

Worse

2013

0

10

20

30

40

50

60

2014

2012

2012

2011

10 20 30

2011

2014

2013

Yemen

Pakistan
CAUSE: EXAMPLES FROM AFGHANISTAN

To illustrate the process of root cause analysis, a specific vignette from Afghanistan is featured below, followed by an example of aggregating root 

causes from multiple incidents.

Uruzgan: Reconstructing an Incident of Interest

The vignette used here, which occurred in Uruzgan Province, Afghanistan, was chosen because it is well documented with sources approved for 

public release.8 While the specific root causes identified below are not completely representative of CT operations in Yemen and Pakistan, the process 

for identifying such root causes is the same, so the process of reconstruc8

 Primary sources for the section on the Uruzgan incident come from the redacted CENTCOM 

report (AR 15-6 Investigation, 21 February 2010, CIVCAS incident in the vicinity of Shahidi 

Hassas, Uruzgan Province, Kabul, Afghanistan: 21 May 2010) and the unclassified ISAF executive summary (“Executive Summary” for AR 15-6 Investigation, 21 February 2010, CIVCAS Incident in Uruzgan Province, Kabul, Afghanistan: May 2010), hereafter AR 15-6 Investigation. For 

more information, see majGen Mchale, “Memorandum for Commander, United States ForcesAfghanistan/International Security Assistance Force, Afghanistan” (Kabul, Afghanistan: 2010), 

http://www.rs.nato.int/images/stories/File/April2010-Dari/May2010Revised/Uruzgan%20

investigation%20findings.pdf. 

140 | Improving Lethal Action

Table 8. Operations in Yemen and Pakistan achieve the aims of the PPG

Yemen Pakistan

Percent change in 

mission success*

Percent change in 

rate of CIVCAS

Percent change in 

mission success

Percent change in 

rate of CIVCAS

2012 -18 -14 +5 +4

2013 -9 +5 +21 -13

2014 -23 +5 -33 -7

*Measured here as the rate of success targeting senior leaders. With actual operational data, other metrics for mission success could also be used.

Source: author analysis based on Bureau of Investigative Journalism data, https://www.thebureauinvestigates.com/category/projects/drones/

drones-graphs/.
tion and identification of contributing factors is illustrative of what could 

be done for those operations.9

Early on 21 February 2010, a U.S. Special Forces team, accompanied 

by Afghan Army and Police personnel, conducted an air infiltration into 

western Uruzgan Province for a daytime cordon-and-search operation. 

The Special Forces team was supported by a General Atomics MQ-1 Predator UAV and a Lockheed AC-130 gunship. While waiting for daylight, the 

team received intelligence that enemy forces were going to attack. The 

Predator operator observed two SUVs driving south toward U.S. forces 

and assumed these were enemy combatants. The position of the U.S. team 

and the initial position of the convoy are shown in figure 17.

The Predator showed the SUVs as they drove around the area for about 

three-and-a-half hours, changing directions several times, stopping to 

allow the occupants of the vehicles to pray, and moving to a position about 

12 kilometers away from U.S. forces. The two SUVs were then joined by 

a third vehicle, a pickup truck. During this time, imagery analysts examined the full-motion video from the Predator and provided their feedback 

to the Predator crew. In turn, the Predator crew communicated with the 

U.S. team on the ground in Afghanistan.10 The movement of the convoy is 

shown in figure 18.

Over three-and-a-half hours, the imagery analysts communicated the 

presence of three possible weapons in the vehicles and two children, also 

described as “adolescents.” The descriptions provided by the imagery analysts—who were trained to interpret the Predator feed—were frequently different than the descriptions the Predator crew provided to the U.S. 

forces on the ground in Afghanistan. For example:

9

 While root causes are not identical for the two sets of operations, considerable overlap exists, so 

historical work supporting U.S. efforts in Afghanistan and products derived from it can be a useful starting point for the effort described here. For example, the checklist for AAR data elements 

in Civilian Casualty Mitigation, ATTP 3-37.31 (Washington, DC: Headquarters, Department of 

the Army, 2012), Appendix B, was derived from this Afghanistan work.

10 Note that the imagery analysts were at a different location than the Predator crew, and had 

no means of direct communication with forces on the ground. Thus, their feedback was filtered 

through the Predator crew.

Illustrating the Approach | 141
• Imagery analysts reported seeing several children, who were described 

as “adolescents.” The Predator crew described them as “teenagers” 

who could be providing support to combatants, and later described 

them as “military-aged males.”

• While the imagery analysts reported that the vehicles appeared to be 

leaving the area, the Predator crew stated that they might be flanking 

the U.S. position.

• At one point, the Predator crew communicated to the U.S. Special 

Forces team that the imagery analysts had reported seeing two 

weapons in a specific vehicle, when in fact no such report had been 

provided.

The imagery analyst descriptions were provided as text on computers via 

mIRC (Internet relay chat), which was not accessible to the Special Forces 

team, though it was available at their higher headquarters in Kandahar. The 

team then received additional intelligence indicating the enemy may be 

setting up an ambush. As a result, the Special Forces team believed the vehicles represented an imminent threat and called for an air strike (figure 19). 

Bell OH-58 Kiowa Warrior helicopters were called in to strike the 

targets based on information provided by the Predator crew, including 

the presence of weapons and military-age males, but no mention of children. The vehicles were engaged with Hellfire missiles, with follow-up engagement of individuals using rockets. The OH-58 pilots then saw people 

running from the vehicles dressed in brightly colored clothing, which is 

characteristic of women’s apparel in Afghanistan. So, they stopped the engagement and radioed back the possibility of civilian casualties. This communication was heard at the higher headquarters, but it did not include 

a report to ISAF with the possibility of civilian casualties as they were 

waiting to receive confirmation. This delayed the reporting of the incident 

for many hours, slowing the eventual ISAF consequence management response and causing that response to trail Taliban information operations 

142 | Improving Lethal Action
Figure 19. Strike on civilian convoy

Source: Map data from Google TerraMetrics; information on locations based on redacted CENTCOM AR 15-6 

Investigation.

Illustrating the Approach | 143

Figure 17. Initial locations of U.S. forces and civilian convoy

Figure 18. Movement of civilian convoy

Source: Map data from Google TerraMetrics; information on locations based on redacted CENTCOM AR 15-6 

Investigation.

Source: Map data from Google TerraMetrics; information on locations based on redacted CENTCOM AR 15-6 

Investigation.
and rumors rather than being proactive and establishing the facts quickly 

to avoid misunderstandings.

Lessons from the Uruzgan Incident

The “Swiss cheese model” of accident causation describes how problems (holes in the Swiss cheese) can arise relatively frequently with no 

impact; however, when the holes all line up, then an accident can occur. 

The Uruzgan incident, like other civilian casualty incidents, was the result 

of a number of factors that all contributed to the incident. These factors 

included:

• Intended target not located due to lack of capability. Specifically, 

the team on the ground received intelligence regarding the presence and intent of enemy forces but lacked the knowledge of where 

the enemy was located, which could have helped U.S. forces successfully deal with the threat and avoid misidentifying civilians as enemy 

combatants.

• Misunderstanding the situation by different military elements. The 

engagement was coordinated among the U.S. Special Forces team on 

the ground, its higher command element in Kandahar, the Predator 

crew at Creech Air Force Base in Indian Springs, Nevada, the Predator’s support elements (including its imagery analysts at Hurlburt 

Field, Florida), and the OH-58 helicopters. Key facts were not shared 

among these different actors; as a result, the factors were not adequately considered in the decision to engage.

• Predator crew overruled assessments by supporting imagery analysts. The U.S. official investigation stated that the Predator crew, 

lacking training in interpreting imagery, “made or changed key assessments . . . that influenced the decision to destroy the convoy.”11

While the Predator crew was supported by imagery analysts who did 

have such training, only the Predator crew was in communication 

11 AR 15-6 Investigation.

144 | Improving Lethal Action
with forces on the ground. Consequently, the descriptions they provided carried the weight of the entire processing, exploitation, and dissemination (PED) process that the Predator platform was supposed to 

provide.

• “Guilt by association.” There were no facts to support declaring the 

third vehicle joining the convoy as hostile. Rather, the Predator crew 

described its status as “guilt by association.” This assumption by the 

Predator crew, one that proved incorrect, was a violation of both the 

rules of engagement (ROE) and international humanitarian law (IHL).

• Civilian casualty numbers and target types. Until 2010, ISAF efforts 

to reduce civilian casualties from airstrikes emphasized particular 

target sets—namely, compounds—in its guidance and emphasis. The 

Uruzgan incident, along with others, such as the Kunduz tanker truck 

airstrike in September 2009, illustrates how significant numbers of civilian casualties could occur outside of compounds.12 Consequently, 

the possibility of high numbers of civilian casualties was extended to 

other target types.

• Lack of tactical patience. While U.S. personnel watched the vehicles 

for three-and-a-half hours prior to engaging, which appears to show 

patience, the Predator crew appeared eager to engage and used leading 

language to describe the vehicles in terms that appeared to satisfy the 

ROE:

• Responding to the imagery analyst description of seeing a child: “At 

least one child. . . . Really? Assisting the MAM [military-age male], 

that means he’s guilty.”

• Responding to a later description of seeing several children: “I really 

doubt that ‘children’ call, man, I really (expletive deleted) hate that.”

12 For more on the tanker truck incident, see Stephen Farrell and Richard A. Oppel Jr., “NATO 

Airstrike Magnifies Divide on Afghan War,” New York Times, 4 September 2009, http://www

.nytimes.com/2009/09/05/world/asia/05afghan.html?pagewanted=all&_r=0.

Illustrating the Approach | 145
• “That truck would make a beautiful target.”

• “I want this pickup truck of dudes. . . . I hope we get to shoot the 

truck with all the dudes in it.”13

• Self-defense engagement predicated on an imminent—but not immediate—threat. ROEs grant the authority to exercise self-defense in 

the face of a hostile act or hostile intent, which includes the threat of 

imminent use of force. This engagement was predicated on the interpretation of a single word: imminent. The definition of imminent in the 

U.S. military’s standing ROE is not the commonly understood dictionary definition: threatening to occur immediately; near at hand; impending. Indeed, the standing ROE definition specifies that imminent 

need not be instantaneous or immediate. This distinction allows U.S. 

forces to take a broader view of what constitutes hostile intent and selfdefense. In this incident, U.S. forces used this broad view to justify the 

use of force in self-defense, even though the vehicle convoy was miles 

and hours from Coalition forces. Hence, based on the guidance provided in the AR 15-6 Investigation, “there was no urgent need to engage 

the vehicles.”

Collectively, these contributing factors represent areas where the U.S. 

military can make improvements. For example, training and doctrine can 

emphasize the importance of including key details in air-to-ground coordination. At the same time, training for drone communications could be 

revised. For example, investigate the inclusion of imagery analysts in voice 

communications so that the Predator crew is not forced to be the middleman in relaying intelligence they are not trained to interpret. Of course, 

these are simply potential solutions from a single incident; it is best to 

consider a larger set of incidents and then develop solutions that best fit 

the collective contributing causes. These solutions may include changes in 

13 AR 15-6 Investigation.

146 | Improving Lethal Action
overall guidance (including the PPG), training, tactics, techniques, and procedures (TTP), and materiel solutions.

Aggregating Root Causes: Drone Strikes in Afghanistan

The other step in the root cause process aggregates individual incidents to 

identify common themes and primary contributing factors for operations 

that fail to meet their objectives. The previous analysis of drone strikes in 

Afghanistan operations offers a good example of this step.14 As mentioned 

earlier, this analysis found the relative rate of civilian casualties to be 10 

times higher for drone strikes compared to that for manned airstrikes (an 

example of the “context” stage of analysis). Then, all operations with civilian casualties were reconstructed in a way similar to the Uruzgan example 

given above. Finally, the contributing causes were aggregated to identify 

the main drivers of civilian casualties in drone strikes.

When multiple incidents were considered, several common root causes 

stood out that contributed to civilian casualties during drone strikes, including the following:

• Training deficiencies for drone operators and imagery analysts. A lack 

of sufficient training in patterns of life, positive identification, discriminating civilians from combatants, and tactical patience can increase the 

risk of civilian casualties.

• Complex coordination processes. The distributed PED architecture 

for drones commonly used to support decision making places higher 

demands on communications and coordination of engagements. Breakdowns in communication can lead to engagements that are not informed 

by the entire set of facts. Specifically, someone was aware of information 

that would have ended the engagement if it were commonly known.15

14 Lewis, Reducing and Mitigating Civilian Casualties.

15 This is also a common factor in friendly fire incidents, such as the shooting down of a U.S. 

Navy McDonnell Douglas F/A-18 Hornet jetfighter by a Patriot missile during Operation Iraqi 

Freedom in 2003. See Thomas E. Ricks, “Investigation Finds U.S. Missiles Downed Navy Jet,” 

Washington Post, 11 December 2004.

Illustrating the Approach | 147
• Lack of situational awareness (SA) in the area beyond the immediate target. Such a lack of SA was compounded by a well-intentioned 

tendency to use weapons that reduce collateral damage but did not 

always eliminate the target in the first engagement. A requirement 

for subsequent engagements increased the risk of civilian casualties 

because of unobserved civilians in the general area, often acting as first 

responders.16

This analysis informs subsequent efforts to tailor solutions to improve the 

conduct of operations, as described in the next section.

CONDUCT: EXAMPLES FROM AFGHANISTAN

These analytical steps were conducted for ISAF and U.S. troops in Afghanistan to help those forces reduce civilian casualties resulting from 

operations. For example, the Joint Civilian Casualty Study identified a 

shortcoming in the COMISAF tactical directives issued between 2007 and 

2009.17 The study findings were communicated to the new COMISAF, 

General David H. Petraeus, in mid-2010, and the revised tactical directive 

issued by his staff corrected the shortcoming, which had persisted through 

four previous versions of the guidance. As a result, the conduct of operations changed to reflect this key identified lesson.

By way of another example, in a 2011 study, analysis ascertained which 

kinds of operations contributed the most to civilian casualties, and what 

practical measures could be taken to reduce them.18 After analyzing several 

hundred separate incidents, the study team provided a list of primary 

causal factors for different types of operations—including airstrikes, check 

point operations, artillery fire, and vehicle movements—and specific recommendations for changes in guidance and tactics to address them. ISAF 

made a number of changes to the conduct of operations in early 2012 in 

response to these recommendations, and also promulgated these best prac16 Lewis and Holewinski, “Changing of the Guard.”

17 The specific shortcoming, like the tactical directive itself, remains classified.

18 Civilian Casualty Update Study, 2012. 

148 | Improving Lethal Action
tices to tactical forces in Afghanistan to aid their implementation. In addition, the recommendations were shared with training centers back in 

the United States to be included in predeployment training. Members of 

the study team then worked with the Center for Army Lessons Learned 

(CALL) and compiled the main body of a handbook for soldiers, addressing how to reduce civilian casualties during operations.19 This handbook 

was shared with forces in theater, as well as with those preparing for future 

deployments, and it contained tailored guidance and tactics based on specific lessons from actual civilian casualty incidents.

Note that these efforts were done periodically and sequentially, reexamining Afghanistan operations over time to observe how existing measures reduced civilian casualties, and whether there were new issues that 

also needed to be addressed. These efforts also benefitted from team continuity and expertise, and subsequent teams were able to observe the benefits of tailored guidance. For example, the revised tactical directive issued 

by General Petraeus in 2010 had a marked positive impact on civilian casualties from airstrikes, and guidance and tactics introduced as a response to 

root cause analysis often were effective in reducing those contributions to 

civilian tolls.20 Also, U.S. SOF observed increased mission success and decreased rates of civilian casualties as a result of identified root causes.21 At 

the same time that enemy tactics and the environment changed, it was also 

necessary to conduct follow-on studies to revisit guidance and tactics in 

light of subsequent incidents of interest and provide fine-tuning to address 

new factors as they emerged.

19 Afghanistan Civilian Casualty Prevention: Observations, Insights, and Lessons, Handbook No. 

12-16 (Fort Leavenworth, KS: U.S. Army, CALL, 2012), https://publicintelligence.net/call

-afghan-civcas/. Members of the study team—LtCol Randolf C. White (USA) and Larry Lewis—

coauthored the chapter on consequence management, “What to Do When Civilian Casualties 

Occur,” with Sarah Holewinski and Marla Keenan from the Center for Civilians in Conflict. The 

center is a nongovernmental organization that advised ISAF and U.S. forces on improving civilian harm mitigation during operations.

20 Lewis, Civilian Casualties: Enduring Lessons.

21 Lewis, Reducing and Mitigating Civilian Casualties.

Illustrating the Approach | 149
CHAPTER 16

150

IMPLEMENTING THE APPROACH

The process outlined and illustrated above quantifies how well operations 

meet stated U.S. goals of lethal action operations, as well as identifies specific areas of improvement. This review also identifies root causes, providing 

not only an explanation for why mission success was not achieved or civilian harm occurred, but also a basis for evidence-driven solutions to improve 

the performance of future operations.

In addition to following the methodology mentioned earlier, the process 

described here would also benefit from several other features. Particularly, the review process described here should be an independent one—that 

is, not conducted by a specific agency or Service. Also, the review process 

should provide feedback to the forces conducting operations to help them 

improve their own after action processes and promote learning. The review 

process should pursue ways to improve assessments of civilian casualties 

during operations as well, given past difficulty to accurately estimate civilian casualties in these kinds of operations, and there are several factors that 

can lead to official estimates being too low.1

1

 See Lewis, Drone Strikes in Pakistan, for a detailed discussion of this point.
Implementing the Approach | 151

REVIEW SHOULD BE INDEPENDENT

Many sources discuss the existence of at least two different groups for U.S. 

lethal force operations, one within the military and the other within an 

OGA. Given the important policy considerations regarding the use of lethal 

force, each organization is likely to be conducting an internal review of its 

operations. It would be constructive for these reviews to incorporate elements described here.

However, an independent review process would also be beneficial, especially given the critical nature of these operations and the significant fallout 

and reduction of freedom of action that can result from negative secondorder effects. An independent review, conducted by either an existing organization or a special team of experts assembled for this purpose, would 

have a number of benefits. First, all organizations have blind spots and can 

hold assumptions that may not be true. An independent review allows critical analysis of data and assumptions and should yield additional insight 

regarding these operations. This review can also consider the casualty classification policy, including decisions for individual operations identifying 

casualties as either combatants or civilians. For example, a similar process 

conducted for CT operations in Afghanistan yielded both additional understanding of actual root causes of civilian casualties and refinements to 

casualty classification processes.2

Another reason for an independent review is the fact that there are multiple action arms in the U.S. government involved in these operations, each 

with differing oversight processes. The National Security Council, Congress, 

the Intelligence Community, and the military all play key roles in shaping, 

executing, and validating U.S. counterterrorism policy.3 Yet details regarding operations and lessons often become lost in each group’s information 

silos. An independent review will more effectively identify key lessons 

2

 Civilian Casualties in Afghanistan, TF 3-10 (Suffolk, VA: JCOA, 2012).

3

 The U.S. Intelligence Community (IC) represents a federation of 17 different government 

agencies that work individually and collectively on intelligence activities to support national security. For more information on the individual agencies and the IC, see http://www.intelligence

.gov.
152 | Improving Lethal Action

across these organizations, promote consistency, and foster cross-pollination 

of best practices and lessons. Again, in Afghanistan, such sharing of best 

practices and lessons among different U.S. units and elements did not occur 

regularly, and independent reviews that examined operations by different 

organizations were the most effective way to leverage learning and avoid 

stovepipes.4

REFINE AND STANDARDIZE AARS

As part of its work, the independent review should also examine the sufficiency of AARs produced following each operation. The review should 

examine such questions as:

• Are the reports factually accurate?

• Are they well suited for operational learning?

• Do they adequately support consequence-management activities?

• What are potential areas of improvement to better support the overall 

process? 

In Afghanistan, U.S. forces and ISAF created a number of products that reported on civilian casualties; the most valuable reports were generally command-directed investigations. These investigations generally considered all 

available data and interviewed all U.S. government personnel involved in the 

incident. This process provided a rich dataset for analysis of causal factors, 

including those that had not surfaced previously or had not been seen as significant when considering a single incident but, when analyzed collectively, 

emerged as a common contributing factor for many incidents.

Although they were usually the best data source available, these 

command-directed investigations were not optimal. The purpose of the investigations was to determine culpability, and the focus on learning from the 

incident was often lost. At the same time, the disparity between the kinds of 

4

 Adaptive Learning for Afghanistan: Final Recommendations (Suffolk, VA: JCOA, 2011), https://

info.publicintelligence.net/JCOA-ALA-Afghanistan.pdf.
Implementing the Approach | 153

issues and the data considered became apparent, since investigations were 

often conducted by different units and individuals. This limited the consideration of some root causes in the analysis. Identifying key issues and information to be included in AARs would address these concerns; for example, a 

checklist based on the Joint Civilian Casualty Study and other related studies 

is included in the Army’s Civilian Casualty Mitigation report.5 The independent review should develop a tailored set of reporting requirements to ensure 

AARs best support the learning process for the specific type of operations.

INCREASE THE ROBUSTNESS 

OF CIVILIAN CASUALTY ASSESSMENTS

In addition to reporting requirements, standard processes should be put in 

place to improve the accuracy of civilian casualty assessments. The potential for civilian harm does not mean that the engagement is not permissible. 

Under U.S. and international humanitarian law (e.g., the Geneva Conventions), the use force is permissible against an enemy as long as the harm to 

civilians is not excessive relative to the gained advantage from the operation. However, civilian tolls should be properly acknowledged in follow-on 

reporting and assessments.

The United States faces considerable challenges in obtaining accurate assessments of civilian casualties in its use of lethal force in operations outside 

of declared areas of hostilities. Most of these operations include airstrikes in 

areas without U.S. boots on the ground and, as such, are often characterized 

by air-based target identification and battle damage assessment. These factors 

increase the likelihood that civilian casualties, including those misidentified 

as enemy combatants, are not discovered by the U.S. government. Thus, if civilian casualty assessment depends only on these measures, the government 

will likely never have a true picture of the actual scale of civilian harm from 

its drone strikes. Regarding operations in Pakistan and Yemen, the nation 

has frequently denied the extent of civilian casualties widely reported in the 

media. This situation resembles Afghanistan prior to mid-2009, where U.S. 

5

 Civilian Casualty Mitigation, ATTP 3-37.31 (Washington, DC: Department of the Army, 

2012), appendix B.
and international force military commanders were frequently confronted 

by reports of civilian casualties that differed from their own initial reports.6

This tendency to underestimate the levels of civilian casualties also undermines the forces’ ability to reduce civilian casualties. If the magnitude 

of civilian harm is underestimated, then the risks are not being prioritized 

appropriately and causes will not be understood; as a result, measures put in 

place to reduce civilian harm may not be effective. Therefore, the government 

can only truly minimize civilian harm with an accurate assessment process 

to quantify levels of civilian harm and with an analytic process in place to 

capture root causes showing why civilians are harmed in operations.

Part III provides such an analytic process, but it should be accompanied 

by an improved assessment process to quantify civilian harm. In addition to 

intelligence efforts (e.g., use of HUMINT and imagery) to improve assessments, this process could consider information from third-party organizations, either with a presence on the ground or with processes for gathering 

information that are complementary to that of official U.S. methods. While 

information gained here may appear to conflict with operational data, such 

a process can highlight cases where findings from operational data are not as 

incontrovertible as they seemed, leading to revised estimates of civilian tolls.

One overarching principle of IHL is that “In case of doubt whether a 

person is a civilian, that person shall be considered to be a civilian.”7 America 

is governed by this principle with respect to the use of force, but the same 

principle applies for assessments of civilian harm after the use of force. In 

cases where a doubt exists as to whether a casualty was a combatant or 

noncombatant, they should be assigned to noncombatant status per IHL.8

This was the practice of U.S. military forces in Afghanistan; doing otherwise 

is inconsistent with international law and is likely to lead to an incomplete 

picture of the civilian toll from these strikes.

6

 Barbara Starr, “U.S., Afghanistan Differ on Number of Civilian Casualties in Strikes,” CNN 

News, 9 May 2009.

7

 Protocol Additional to the Geneva Conventions of 12 August 1949.

8

 Author communication with ICRC, May 2014.

154 | Improving Lethal Action
CHAPTER 17

155

BENEFITS OF THE PROCESS

The analytic approach proposed in Part III seeks to improve the conduct of 

the U.S. CT campaign of lethal force by providing improved context for operations, revealing causes for negative outcomes, and creating tailored recommendations for improved conduct of future operations. This approach 

also yields several other benefits, including a basis for “defragmenting” the 

execution and oversight of lethal action across U.S. departments and agencies, separating fact from opinion regarding operations, making the case 

for broader changes to the U.S. military in light of identified lessons, and 

enhancing the perceived legitimacy of the U.S. lethal action campaign by 

better aligning policy and practice.

IMPETUS FOR REVISING GUIDANCE 

AND OPERATIONAL APPROACHES

U.S. counterterrorism lethal action operations are aimed at imminent 

threats where no other solution for addressing them—such as working 

with partner nations or attempting capture operations—is feasible. For this 

critical mission set, a missed opportunity—or killing the wrong people—

can have dire consequences. The analytic process described here may accelerate and optimize the normal learning process to maximize success and 

minimize the potential for these negative outcomes.

Specifically, the benefits of this analytical approach should include:
• refinements to policy and guidance (including a modified PPG if 

appropriate);

• alternative tactics and operational approaches to improve mission 

success and reduce civilian casualties, given observed root causes;

• best practices cross-pollinated across organizations;

• shortfalls highlighted in current capabilities;

• adaptations to adversary approaches that complicate lethal action and 

targeting criteria; and

• a basis for informed policy decisions regarding organizational responsibilities in the future use of lethal force.

In addition, there is continuing discussion in Congress and policy circles of 

ending the Authorization for the Use of Military Force (AUMF), which is 

the basis of approvals to conduct operations against al-Qaeda and associated groups.1

 An end to AUMF would require a new legal basis for the use 

of lethal force. Several commentators have suggested that this new legal 

basis could include adapting the PPG framework for the targeting process.2

Getting the guidance right has potential implications for a broader set of 

lethal action operations beyond the current campaign against al-Qaeda 

and affiliated groups. And, as stated earlier, creating the optimal guidance 

for one period of time does not guarantee it remains optimal for the long 

1

 “. . . the President is authorized to use all necessary and appropriate force against those nations, 

organizations, or persons he determines planned, authorized, committed, or aided the terrorist 

attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order 

to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.” Authorization for Use of Military Force, Public Law No. 107-40 (2001).

2

 See, for example, Harold Hongju Koh, “Authorization for Use of Military Force After Iraq and 

Afghanistan” (statement before the Senate Foreign Relations Committee, 21 May 2014), http://

www.foreign.senate.gov/imo/media/doc/Koh_Testimony.pdf; and Jack Goldsmith, “Agreeing 

with Harold Koh on the Need for and Contours of a New AUMF,” Lawfare (blog), 23 May 2014, 

http://www.lawfareblog.com/2014/05/agreeing-with-harold-koh-on-the-need-for-and-contours

-of-a-new-aumf.

156 | Improving Lethal Action
Benefits of the Process | 157

term, so putting a process in place to look for regular opportunities to learn 

lessons and incorporate them into guidance would improve the U.S. government’s ability to deal effectively with future threats.

SEPARATING FACT FROM OPINION

When working to optimize guidance and operational approaches, the 

effort to rely on facts and data instead of opinion and commonly held assumptions will be critical. These opinions can be incorrect, in effect steering efforts away from addressing root causes and undermining possible 

improvement.

Early efforts to mitigate civilian casualties in Afghanistan seemed 

based more on opinions and observations from past operations with no 

contextualization or systematic examination of the actual incidents in question. As a result, early mitigation tended to be less effective, and resulted 

in new equipment that created few benefits for addressing major issues. 

In some respects, this is understandable; in this instance, operating forces 

were under considerable pressure and lacked both the time and expertise 

to analyze these issues. These early failures highlight a key reason why 

General McChrystal welcomed an independent team to assist his efforts, 

as they could come into theater to collect data and then have time to think 

and analyze outside the situation.

Civilian casualties from drone strikes represent another example of the 

challenge of sorting between fact and opinion. For lethal action operations, 

the nature of drone strikes has been widely debated. For example, official 

U.S. statements and other public statements have stressed the “surgical” 

nature of drone strikes.3 This opinion is shared by others; for example, it 

was stressed in a recent Stimson Center report: “Lethal UAV [unmanned 

aerial vehicle, or drone] strikes frequently have been criticized for their 

3

 See, for example, Conor Friedersdorf, “Calling U.S. Drone Strikes ‘Surgical’ Is Orwellian Propaganda,” Atlantic, 27 September 2012, http://www.theatlantic.com/politics/archive/2012/09

/calling-us-drone-strikes-surgical-is-orwellian-propaganda/262920/.
158 | Improving Lethal Action

alleged tendency to cause excessive civilian casualties. This criticism has 

little basis in fact.”4

Other organizations claim that drones cause more civilian casualties 

than the U.S. government and others (e.g., academia, think tanks, advocacy 

groups, and elements of the UN) have claimed, including human rights 

groups such as the Center for Civilians in Conflict, Amnesty International, and Human Rights Watch, as well as some in academia. In addition, a 

UN special rapporteur made similar claims.5 Analysis of open-source data 

here tends to agree with these claims; for example, drone strike operations 

in Yemen were almost four times more likely to cause civilian casualties 

than other types of operations. These different opinions regarding civilian 

casualties from drone strikes have real impact; they create uncertainty regarding the level of effort the U.S. government should expend in pursuing 

improvements in this area.

Analysis of operational data can provide valuable insight when opinions differ. For example, contrary to the assertion of the Stimson report, 

analysis of operational data from Afghanistan showed that drone engagements were 10 times more likely to cause civilian casualties than those by 

manned aircraft.6 Thus “their [drones] alleged tendency to cause excessive civilian casualties” is in fact documented in analysis of official U.S. 

military data from operations in Afghanistan. Furthermore, the Stimson 

assertion that “this criticism has little basis in fact” is unfounded.7 This situation—that the Stimson task force made important assertions that were 

uninformed by and, in fact, contradictory to findings from official U.S. operational data—reinforces the importance of testing assumptions through 

an analytic process leveraging operational data.

This example also illustrates how incorrect opinions can be formed. 

The Stimson report justified their position that drones cause minimal civilian casualties by pointing to the precision of drone platforms and mu4

 Abizaid and Brooks, Recommendations and Report of the Task Force on U.S. Drone Policy, 24.

5

 Emmerson, Promotion and Protection of Human Rights.

6

 See Drone Strikes.

7

 Abizaid and Brooks, Recommendations and Report of the Task Force on U.S. Drone Policy.
Benefits of the Process | 159

nitions, and the advantages of the platform in providing persistence and 

high-quality intelligence.8 While the descriptions of platform advantages 

are true, they are also incomplete; the discussion in the Stimson Center 

report neglects the full set of factors that contribute to civilian casualties 

during operations. When drone strikes are considered in an operational 

context, including the distributed nature of drone operations, training contributions, and employed tactics, these factors collectively contribute to 

why drone strikes can have a greater propensity to cause civilian casualties 

than other types of engagements, such as strikes from manned aircraft.9

The analytic process described here may identify cases where common 

opinion differs from fact. This is also important when developing tailored 

solutions that address the actual drivers for challenges. For example, from 

analysis of root causes of civilian casualties during drone strikes in Afghanistan, the factors that contributed most significantly could be mitigated—

so, this propensity to cause civilian casualties is not an inherent limitation 

of drones, but rather a situation that can be improved through deliberate 

measures informed by root causes.

“DEFRAGMENTATION” OF U.S. COUNTERTERRORISM EFFORTS

With regard to the use of lethal force to deal with threats to the United 

States, many elements of the government have roles and responsibilities 

in executing and overseeing this program. For example, the National Security Council, Congress, the Intelligence Community, and the military all 

play key roles in shaping, executing, and validating U.S. CT policy. At the 

same time, details regarding operations and lessons are often trapped in 

organizational silos. This issue stems largely from the fact that two groups 

currently execute lethal action, and they execute on the basis of differing 

legislative authorities (Title 10 versus Title 50), answering to various congressional committees.

8

 Ibid.

9

 This point is discussed in detail in Lewis, Drone Strikes in Pakistan.
Having OGAs executing operations introduces barriers to sharing best 

practices and reduces collective learning. For example, culture, classification and access, doctrine, and equipment create differences in the conduct 

of operations and make it more difficult to share feedback and enable 

learning across organizations. This challenge also was seen in Afghanistan; 

individual units learned in isolation, and key lessons were often not shared 

from one unit or force to another. Likewise, having contradictory oversight 

organizations for the two action arms limits their ability to compare the 

conduct of operations and identify opportunities for improvement.

Given these barriers, an independent review will create an opportunity 

to more effectively identify key lessons across these stovepipes. By looking 

at operations across different organizations, key lessons can be identified 

more effectively and offer the chance to share best practices used by one 

agency but not the other. These lessons should also be shared across the organizations responsible for oversight to best understand current effectiveness in lethal operations, and what steps need to be taken to address key 

challenges.

IMPETUS FOR BROADER INSTITUTIONAL CHANGE

President Obama indicated that the use of lethal force in CT operations 

outside of declared areas of hostilities would shift to the military in the 

near future.10 Notably, current U.S. lethal action operations are similar to 

operations in Afghanistan in that existing guidance for protecting civilians exceeds the baseline legal requirement. Per U.S. and international law, 

harm to civilians is permissible during military operations if the engagement focuses on a valid military target, if it discriminates between combatants and civilians, and if the use of force is proportional to the threat. 

The standard for protecting civilians in the PPG—that operations will 

be conducted only if there is a relative certainty that civilians will not be 

harmed—goes above and beyond that required to comply with IHL; this 

10 Ken Dilanian, “CIA Winds Down Drone Strike Program in Pakistan,” Military.com (blog), 

30 May 2014, http://www.military.com/daily-news/2014/05/30/cia-winds-down-drone-strike

-program-in-pakistan.html.

160 | Improving Lethal Action
higher standard can be referred to as “supercompliance.” If this higher 

standard of supercompliance continues to be an expectation for the use 

of force—and recent operations in the past decade suggest this will be the 

case—then the U.S. military should consider institutional changes to reflect 

this standard.

Fortunately, the United States has already made some changes to 

reduce civilian casualties over the past decade. For example, while the 

government consistently met the IHL requirements in combat operations 

during this period, it also found that more could be done to avoid civilian 

casualties. U.S. forces in Iraq and Afghanistan found that their operations 

could be improved by protecting civilians—and was in fact required for 

the success of the campaign—over the course of those lengthy operations. 

However, in these cases, improvement was slow; delays in measures taken 

resulted in unnecessary harm to civilians, as well as harm to the overall 

campaigns through alienation of the local population, tarnishing of the 

U.S. reputation, and limited freedom of action.11

While progress in reducing civilian casualties and pursuing supercompliance in Iraq, Afghanistan, Libya, and elsewhere is good news, to date, 

the changes put into place remain largely focused on supporting operations there. Sharing lessons between operations—and institutionalization 

of those lessons—is less apparent. For example:

• Lessons from Iraq regarding escalation of force (e.g., checkpoint operations) did not appear to migrate to Afghanistan.

• Lessons regarding air-to-ground operations in Afghanistan did not 

reach NATO participants in Operation Unified Protector in Libya.12

11 Lewis, Reducing and Mitigating Civilian Casualties.

12 For more on NATO’s role in this operation, see NATO, “Fact Sheet: Operation Unified Protector: Final Mission Stats,” 2 November 2011, http://www.nato.int/nato_static_fl2014/assets/pdf

/pdf_2011_11/20111108_111107-factsheet_up_factsfigures_en.pdf.

Benefits of the Process | 161
• Lessons for escalation of force did not inform an incident in July 2012, 

in which a U.S. Navy ship engaged a small fishing boat in the Persian 

Gulf.13

These examples point to a need for a stronger institutionalized approach 

within the U.S. military to reduce civilian casualties when possible and 

conform to greater expectations for civilian protection. This approach 

would benefit from clear military leadership and policy in this key area. 

For example, a policy-level position in the Office of the Secretary of 

Defense (OSD) on civilian harm mitigation might focus policy development, encourage consideration of civilian harm in planning, and advocate institutional development of doctrine, tactics, and materiel solutions 

to reduce civilian harm in operations. In addition, the deliberate analysis 

of civilian harm in operations could improve the ability of forces to understand current levels of civilian harm in operations and identify ways 

to minimize it, guiding the actions of the OSD advocate. These changes 

would benefit CT operations outside of declared areas of hostilities, both 

under the current AUMF authority and under a new legal basis for action. 

At the same time, these measures would yield benefits in a range of other 

kinds of operations, including the recent airstrikes against ISIL in Iraq and 

Syria.

To the extent that OGAs will also be conducting operations using lethal 

force outside of declared areas of hostilities, those agencies would also 

benefit from similar measures to institutionalize best practices and policies 

to reduce civilian harm above and beyond that required by IHL.

ENHANCING U.S. LEGITIMACY AND 

PROMOTING THE RESPONSIBLE USE OF FORCE

Finally, this process can help build legitimacy for the U.S. lethal action 

campaign and can serve as a model for other nations that will inevitably 

13 Laura Rozen, “U.S. Navy Fires on ‘Rapidly Approaching’ Boat near Dubai,” Back Channel

(blog), Al-Monitor, 16 July 2012, http://backchannel.al-monitor.com/index.php/2012/07/1185

/us-navy-fires-on-motor-boat-off-dubai-uae/.

162 | Improving Lethal Action
use lethal actions to address their own national interests. The United States 

regularly advocates for the discriminate use of force and the protection of 

civilians in conflict in the international community. However, the CT lethal 

action campaign has resulted in criticism of U.S. policies and practices from 

an unlikely collection of sources, including elements of the UN, members 

of the British Parliament, China, academia, NGOs, and other human rights 

organizations. This broad criticism has arguably injured the moral authority of the nation and degraded its ability to exert global leadership.14

A U.S. commitment to this review sends a message that its actions are 

consonant with its words—that it is acting decisively to protect its citizens 

from imminent threats while also doing “everything possible” to protect 

civilians from harm. The Obama administration and Congress can use this 

review to improve transparency; the government could share broad trends 

from this review with the public, as well as communicate the benefits 

gained through the review—namely, specific improvements to promote 

mission success and progress in reducing civilian harm from CT operations. By conducting this review, the United States can point to this framework and process, giving the country greater credibility when advocating 

for other nations to follow similar standards in the responsible use of force.

14 For example, Gen James E. Cartwright (USMC), former vice chairman of the Joint Chiefs 

of Staff, testified to a Senate committee concerning drones: “I am worried that we have lost the 

moral high ground.” See David Lerman, “Democrat Seeks Transparency on Drones as White 

House Skip,” Bloomberg, 24 April 2013, http://www.bloomberg.com/news/articles/2013-04-23

/democrat-seeks-transparency-on-drones-as-white-house-skip; and Tom Curry, “Poll Finds Overwhelming Support for Drone Strikes,” NBC Politics (blog), NBC News, 5 June 2013, http://

nbcpolitics.nbcnews.com/_news/2013/06/05/18780381-poll-finds-overwhelming-support

-for-drone-strikes?lite.

Benefits of the Process | 163
CHAPTER 18

164

CONCLUSIONS AND RECOMMENDATIONS

The use of lethal force remains a key component of the U.S. CT approach 

given the ongoing security threats from al-Qaeda and associated forces. 

Recent guidance, including the PPG, seeks to balance mission success and 

the risk of civilian casualties. Having a robust analytical framework and 

lessons learned process, as outlined here, could quantify how well operations are meeting stated U.S. goals for lethal action operations, including 

a report card to summarize overall progress, as well as to identify specific areas where improvement is possible. This review would also identify 

root causes, providing an explanation for why mission success was not 

achieved or civilian harm occurred and providing a basis for evidencedriven solutions to improve performance of future operations. This process 

may improve mission success—a critical element of U.S. national security—while also reducing civilian casualties, consistent with U.S. principles 

and policies that value the protection of innocents. Thus, this approach 

ensures that U.S. practice and policy are aligned.

Such a process could also serve as an independent review. The review 

process should provide feedback to the action arms conducting operations 

to help them improve their own AAR process and promote learning. The 

review process should also pursue ways to improve assessments of civilian 

casualties during operations since official estimates tend to be too low.
As noted earlier, the United States has a history of adapting and learning lessons in one operation but not applying those hard-fought lessons to 

other, similar operations.1 For example, lessons from Afghanistan for civilian protection were not transferred to U.S. and Coalition forces operating in 

Operation Unified Protector in Libya, nor did they inform U.S. Navy operations in the Persian Gulf in the case of a shooting of an Indian fishing boat. 

While the process outlined here would improve the conduct of CT operations in Pakistan and Yemen, such a process would also benefit other operations, such as current U.S. military airstrikes in Iraq. For the longer term, 

creating an institutional focus area for civilian harm within the U.S. military, with a focus on avoiding civilian casualties while promoting mission 

success, would help preserve these lessons and keep forces from having to 

relearn them in future operations. Finally, this review could promote U.S. 

legitimacy and aid the nation’s efforts to advocate responsible use of force 

within the international community, a particularly important consideration 

with the proliferation of such technologies as armed drones.

RECOMMENDATIONS

The U.S. government should sponsor an independent analysis of U.S. lethal 

action operations in CT operations, using the analytic approach outlined in 

the previous chapters. This review should include:

• A team of independent experts who have full access to operational 

data to review mission success and potential civilian harm during U.S. 

counterterrorism operations in areas outside of declared theaters of 

conflict. This review should leverage the analytic process illustrated 

here, and also reference and draw upon insights from similar reviews 

conducted for operations in Afghanistan.2

1

Decade of War: Enduring Lessons from the Past Decade of Operations, vol. 1 (Suffolk, VA: JCOA, 

2012).

2

 This review could be a subset of a larger oversight effort as recommended in Abizaid and 

Brooks, Recommendations and Report of the Task Force on U.S. Drone Policy.

Conclusions and Recommendations | 165
166 | Improving Lethal Action

• Concrete recommendations for changes to guidance and operational 

approaches based on identified root causes. A key element to reducing civilian casualties in Afghanistan was analyzing individual incidents and determining causal factors. When these causal factors were 

considered collectively, they focused efforts for reducing civilian harm 

to areas that were most productive. This process could easily be replicated for operations outside of declared theaters of conflict, including a review process to determine the causal factors for the incident as 

outlined earlier. Periodic reviews would identify causal factors across 

multiple incidents and identify ways to systematically address them in 

guidance and operational approaches, including future versions of the 

PPG.

• “Defragmentation” of oversight and lessons-learned processes for U.S. 

counterterrorism operations. Different elements of the U.S. government 

have various roles in shaping, executing, and validating its CT policy. 

For various reasons, however, details concerning these operations tend 

to be siloed within each organization, limiting operational learning and 

effective oversight. The independent review should effectively identify 

key lessons within these stovepipes and share them across the different 

organizations responsible for execution and oversight of these operations. The government can improve transparency and set an example 

for the international community by highlighting this effort and sharing 

broad trends from this review with the public.

The DOD should improve its institutional capability to reduce civilian 

harm while maintaining mission effectiveness. The military has a history 

of openly debating the ethical use of force, and it considers compliance 

with IHL (codified in the Law of Armed Conflict) an integral part of the 

U.S. profession of arms.3

 That said, DOD could be better organized and resourced to systematically reduce civilian harm in its operations, especially 

3

 See Rod Powers, “Law of Armed Conflict (LOAC),” Rules of War (blog), http://usmilitary.about

.com/cs/wars/a/loac.htm.
Conclusions and Recommendations | 167

given the recent trend requiring supercompliance with regard to civilian 

protection. Key recommendations for DOD include:

• Create a policy-level position in the OSD that focuses on civilian harm 

mitigation in the conduct of military operations. Civilian harm mitigation is part of the ethical and professional obligation of being a member 

of the U.S. military, foundational to the profession of arms, yet there is 

a gap in military leadership and policy in this key area. A policy-level 

position in OSD should be created to focus on civilian harm mitigation 

and better enable supercompliance with regard to civilian protection 

where possible. Such a position could have a role both in current operations and in the institutionalization of lessons for future operations. 

The ICRC, such international organizations as the UN, and NGOs can 

interface with this office as the DOD institutional point of contact in 

addition to its coordination with operational forces.

• Conduct analysis and develop expertise. The deliberate analysis of operations, including the topic of civilian harm in operations, is a relatively new field, with no systematic program for such work and few 

established experts. However, this aspect of operations is becoming 

foundational to the ability to use force in a wide range of operations. 

DOD should develop expertise on the reduction and mitigation of civilian harm and pursuit of best practices with respect to IHL. This resourcing should include support to operational staffs, which typically 

lack this expertise and analytical capability.

Other agencies employing lethal force should also improve their institutional capability to reduce civilian harm. To the extent that other government agencies will also be conducting operations using lethal force, they 

would also benefit from measures to institutionalize best practices and policies to reduce civilian harm and pursue supercompliance, similar to those 

recommended here for DOD.

SECURITY AND LEGITIMACY

LEARNING FROM THE PAST 

DECADE OF OPERATIONS

BY LARRY LEWIS

PART IV

CHAPTER 19

171

INTRODUCTION

Conflict and insecurity spread like spilled ink.1 The United States has returned to Iraq for the third time in 25 years, most recently to confront the 

emerging threat of ISIL, also present in Syria, Libya, and elsewhere. The 

United States continues CT operations in Pakistan, Yemen, Afghanistan, 

and Somalia against al-Qaeda and associated groups, while also supporting Saudi Arabia in its offensive operations in Yemen.2

 Bold attacks from 

Boko Haram against civilians in Nigeria continue despite U.S. security 

assistance.3 In Mali, a government considered a shining example of democracy in Africa fell in a coup after its military was ineffective against 

yet another Tuareg uprising.4 Meanwhile, Russia continues to destabilize 

1

 This sentiment was echoed recently by Robert Kagan: “We’re sort of seeing the world order 

cracking around the edges.” See Michael Crowley, “World War O,” Politico, 23 April 2015, 

http://www.politico.com/story/2015/04/world-war-obama-117303.html#ixzz3YEDusiYD.

2

 Steve Almasy and Jason Hanna, “Saudi Arabia Launches Airstrikes in Yemen,” CNN News, 26 

March 2015, http://www.cnn.com/2015/03/25/middleeast/yemen-unrest/.

3

 Adam Nossiter, “Boko Haram’s Civilian Attacks in Nigeria Intensify,” New York Times, 6 July 2015, 

http://www.nytimes.com/2015/07/07/world/africa/boko-haram-intensifies-attacks-on-civilians

-in-nigeria.html?_r=0

4

 Andy Morgan, “What Do the Tuareg Want?,” Al Jazeera, 9 January 2014, http://www.aljazeera

.com/indepth/opinion/2014/01/what-do-tuareg-want-20141913923498438.html.
172 | Security and Legitimacy

Ukraine, a U.S. partner.5 Overall, the world is a turbulent place and the 

U.S. government faces a prodigious number of threats to its security and 

interests. 

The remaining four chapters of this work describe how security challenges over the past decade are often a symptom of a bigger issue: inadequate consideration of legitimacy within the overall U.S. calculus of national 

security. Legitimacy involves the right of a government to govern and exercise such functions as the use of force, which can span from the use of 

armed drones to tactical checkpoint operations. This right stems from both 

external and internal considerations, and can be broken into two parts: 

international and domestic legitimacy. International legitimacy has been 

defined as “. . . a measure of the acceptability and justifiability of a state’s 

actions in the eyes of other states and their citizens.”6

A key consideration for a government’s international legitimacy is 

adherence to international norms, including, as discussed here, norms for 

armed conflict. Likewise, an indicator of the domestic legitimacy of a government is the degree to which a nation’s population accepts its political 

authority, and “. . . is usually related to the achievement of social and distributive justice and thus revolves around the existence of a government for

the people.”7 Total legitimacy is not always required to rule or to use force 

in an armed conflict; however, legitimacy promotes the ability to govern 

or influence without resorting to authoritarian regimes or repressive force.8

Lack of legitimacy undermines efforts to govern and maintains a monopoly on the use of force. Likewise, factors that reduce legitimacy (e.g., heavy5

 “Stoltenberg: Russia Continues to Destabilize Situation in Ukraine,” Ukrinform, 17 April 2015, 

http://www.ukrinform.ua/eng/news/stoltenberg_russia_continues_to_destabilize_situation_in

_ukraine_330713.

6

 Suzanne Nossel, “Going Legit,” Democracy: A Journal of Ideas 3 (Winter 2007): 29–38, http://

www.democracyjournal.org/magazine/3/going-legit/.

7

 Jean D’Aspremont, “Legitimacy of Governments in the Age of Democracy,” Journal of International Law and Politics 38 (2007). Emphasis in original.

8

 See “. . . legitimacy is a functional prerequisite of efficient and liberal forms of government.” in 

Fritz W. Scharpf, Reflections on Multilevel Legitimacy, Working Paper 07/3 (Cologne, Germany: 

Max Planck Institute for the Study of Societies, 2007), 7.
Introduction | 173

handed approaches, corruption, etc.) also tend to serve as grievances for 

extremist or guerilla groups, undercutting security.

In recognition of its importance, U.S. military doctrine includes legitimacy in its list of “principles of Joint operations.”9

 This list constitutes a 

set of best practices that should be followed for any conflict. While it is 

commendable to find this in Joint Operations doctrine, it is less apparent in 

policy and practice for the United States. Over the past decade, there has 

been an apparent lack of consideration for legitimacy in both U.S. government activities related to armed conflict as well as larger policies and practices aimed at dealing with existing threats, which encompass both combat 

operations and security force assistance. As a result, the United States dealt 

with security concerns less effectively, employing incomplete solutions and 

conducting tactical actions that, at times, undermined larger strategic objectives. In the following chapters, we will discuss how this has contributed to conflict and insecurity. 

AN OPPORTUNITY TO LEARN 

“Failure is only the opportunity more intelligently to begin again.” 

~ Henry Ford10

A few years ago, General Dempsey, as chairman of the Joint Chiefs of Staff, 

called for the U.S. military to “learn the lessons from the past decade of 

operations.” A study conducted by the Joint Staff J7, with a product commonly referred to as the Decade of War report, was a key element of that 

process.11 Written in 2012, that report was optimistically called volume 

one in recognition that its scope was by no means exhaustive; more effort 

would be needed to address additional issues not touched on in the first 

volume. While a second volume has yet to be released, there are challenges 

where the U.S. government urgently needs to learn key lessons. 

9

 Joint Operations, Joint Publication 3-0 (Washington, DC: Joint Chiefs of Staff, 2011).

10 Henry Ford and Samuel Crowther, My Life and Work (New York: Doubleday, 1922), 19. 

11 Decade of War.
The 2012 report summarized key insights from a collective body of 

work regarding lessons from U.S. military operations. For the primary 

author of that report, it became evident that this same body of work, combined with other, more recent reports, offers lessons for the U.S. government on the topic of legitimacy and national security. These lessons are 

two-fold: a set that includes considering the legitimacy of other nations 

in solving national security concerns, and a set for the nation and its own 

conduct of operations relating to legitimacy. The second set of lessons is 

critical to the first, as the United States cannot effectively promote legitimacy within other nations if its own foundation is unsound. Key lessons 

for these two areas will be addressed in turn.

174 | Security and Legitimacy
CHAPTER 20

175

LESSON ONE: 

PROMOTING LEGITIMACY 

As stated above, nations have two dimensions that contribute to legitimacy: 

adherence to law and the equitable governance of its citizens. With respect 

to adherence to law in a security context, international humanitarian law 

(IHL) is particularly relevant. IHL is often referred to in the United States 

as the law of armed conflict (LOAC).1 IHL aims to “ensure a degree of humanity in the midst of war” by setting minimum standards for behavior 

in combat, as well as prescribing steps to minimize the extent of human 

suffering with regard to the use of force.2 Legitimacy of a government also 

includes governance that is fair, relatively effective, and transparent. 

The importance of these two factors can be seen in many examples from 

U.S. operations over the past decade. For example, sectarian tendencies, including selective governance to only parts of the population as well as such 

practices as the torture of Sunni Iraqis at the hands of Shiite militia and Iraqi 

security forces, undermined the legitimacy of the post-2004 Iraqi govern1

 The body of IHL primarily consists of the four Geneva Conventions of 1949 and the two Additional Protocols of 1977.

2

 Carlo von Flüe and Jean-Philippe Lavoyer, “How Can NGOs Help Promote International 

Humanitarian Law?,” Humanitarian Exchange, no. 9 (November 1997).
176 | Security and Legitimacy

ment.3 This lack of legitimacy led to unresolved grievances that contributed 

to ISIL’s ease in capturing western Iraq last year. In Mali, the Tuareg’s periodic uprisings were similarly triggered by long-standing grievances that 

include selective governance and heavy-handed government responses 

dating back to the 1960s.4 Similarly, the Nigerian government is marked by 

gross human rights violations and corruption, undermining its legitimacy 

against Boko Haram.5

In working with other nations, particularly to address threats to the 

United States and its interests, the consideration of human rights and legitimacy can take a back seat to the expediency of reestablishing security. 

With this emphasis on security, U.S. policy and practice can neglect the often 

causal tie of human rights and the related issue of host nation legitimacy to 

the emergence and strength of such threats. By putting less priority on promoting human rights and governance to encourage legitimacy with nations 

facing security threats early on, more effort and resources may be required 

later. By then, threats are more mature and capable, the population may be 

more likely to lend support to nonstate armed groups, and U.S. military responses—in terms of cost, represents the big ticket item for American policy 

options—can become necessary.

EXAMPLE OF SECURITY ASSISTANCE CHALLENGES

The connection between human rights, legitimacy, and security can be seen 

in an example where an armed group rose up to present an existential threat 

to a nation. In this case:

• the government had marginalized a minority population group in terms 

of participation and services for years;

3

 See After Liberation Came Destruction: Iraqi Militias and the Aftermath of Amerli (New York: 

Human Rights Watch, 2015), http://features.hrw.org/features/HRW_2015_reports/Iraq_Amerli

/index.html.

4

 Morgan, “What Do the Tuareg Want?”

5

 See, for example, Nossiter, “Boko Haram’s Civilian Attacks in Nigeria Intensify”; and Natalie 

Chwalisz, “Recent Hearing: The Continuing Threat of Boko Haram,” Security Assistance Monitor, 

20 November 2013, https://securityassistancemonitor.wordpress.com/2013/11/20/recent-hearing

-the-continuing-threat-of-boko-haram/.
Lesson One | 177

• the military employed indiscriminate use of force and denied justice to 

that group, undermining the force’s legitimacy and leading to grievances that fueled the conflict;

• a neighboring country offered sanctuary, allowing the group to better 

train and gain resources;

• the group benefitted from seasoned military leadership, despite being 

marginalized within the nation’s security forces;

• the group acquired modern equipment by capturing it from an unsound 

but U.S.-supported government force;

• the resultant uprising was a repeat occurrence; while a previous conflict was quelled, the underlying factors leading to conflict were not addressed; and

• the collective result of these factors was an armed group that, with only 

hundreds of personnel, was able to defeat a national security force of 

thousands, capturing territory and equipment.

These factors can easily describe ISIL’s dramatic capture of Mosul in June 

2014, which served as a wake-up call to many nations regarding the threat 

of ISIL.6

 However, the factors equally apply to the Tuareg capture of northern Mali in 2012, which precipitated a government coup. Mali illustrates 

several shortfalls of the overall U.S. approach to security threats through 

security assistance. America can expend considerable resources on security 

assistance for weak states, but these expenditures often focus on two areas: 

tactical training/education and providing military equipment. While these 

activities are often appreciated by the receiving state, they do not necessarily translate into improved capability or capacity. Furthermore, when these 

efforts are made without considering the soundness of the U.S. approach in 

relation to the state’s legitimacy, capacity, and ownership of the focus areas 

6

 Julia McQuaid et al., Adaptive and Innovative: An Analysis of ISIL’s Tactics in Iraq and Syria 

(Alexandria, VA: CNA, 2015).
of security assistance efforts, government support can prove futile, as was 

the case in Mali.

For more than a decade, Mali was viewed by U.S. and international 

observers as a “democratic success” in Africa.7 At the same time, Mali faced 

several key challenges, including scarce resources and abject poverty, with 

44 percent of the population falling below the poverty line.8 Also, northern 

Mali hosted a terrorist threat—al-Qaeda in the Islamic Maghreb (AQIM)—

which threatened regional stability and U.S. interests.9 Mali’s security challenges were compounded by a long-standing Tuareg insurgency in the 

north. Accordingly, Mali received sizable amounts of U.S. funding, both for 

development aid and security assistance to their military to enhance their 

CT capabilities. However, when a military coup in 2012 overthrew Mali’s 

democratically elected government—the coup was led by a Malian soldier 

who received U.S. training and attended a U.S. military school—the effectiveness of U.S. assistance and aid in promoting stability in Mali came into 

question.10 

There were underlying flaws in the U.S. approach to support in Mali 

that doomed the effort. These flaws included both host-nation considerations and features of the American government’s approach to building 

7

 Alexis Arieff, Crisis in Mali (Washington, DC: Congressional Research Service, 2013), https://

www.fas.org/sgp/crs/row/R42664.pdf.

8

 “Mali,” World Bank, accessed 18 November 2013, http://data.worldbank.org/country/mali. 

Also, Mali was rated 182 out of 187 countries in the 2012 UN Human Development Index. See 

Human Development Report 2013 (New York: United Nations Development Programme, 2013), 

http://hdr.undp.org/en/2013-report.

9

 For more information on this Salafi-jihadist militant group, see Zachary Laub and Jonathan 

Masters, “Al-Qaeda in the Islamic Maghreb,” Council on Foreign Relations Backgrounder, 27 

March 2015, http://www.cfr.org/terrorist-organizations-and-networks/al-qaeda-islamic-maghreb

-aqim/p12717.

10 Adam Nossiter, “Soldiers Overthrow Mali Government in Setback for Democracy in Africa,” 

New York Times, 22 March 2012, http://www.nytimes.com/2012/03/23/world/africa/mali-coup

-france-calls-for-elections.html?_r=0.

178 | Security and Legitimacy
partner capacity (BPC) in Mali. Host-nation considerations that were not 

adequately considered included:11

• Mali’s national ownership: Mali did not display ownership of its challenges, lacking the political will to devote its resources and efforts to 

address key challenges. Mali also did not use U.S. and international 

support as intended.

• Mali’s willingness and ability to confront the threat: the Malian government was not willing or able to confront threats in the northern part 

of the country. In addition to lack of ownership, this inability to confront the threat came as a result of Malian forces being untrained and 

the government being unable to sustain its forces so that Mali could 

govern its territory and secure its borders against emerging threats. As 

a result, Malian forces were not effective against a much smaller, but 

well-equipped, insurgent force.

• Long-standing grievances: while the uprising in the north and subsequent coup were symptomatic of long-standing grievances held by the 

population dating back to Malian independence or before, the government had not acted to resolve these issues. 

• The Malian government’s lack of perceived legitimacy: though the 

United States and other international observers saw Mali as a “democratic success,” the government’s legitimacy among the population suffered due to corruption and human rights concerns, which aggravated 

other grievances and contributed to the coup. 

In addition, there were features of the American BPC effort in Mali that hindered progress, including the following:12

11 These bullets were adapted from a classified report by Richard Moody and Larry Lewis, Learning from the Crisis in Mali: Lessons for Building Partner Capacity (Suffolk, VA: JCOA, 2014).

12 These bullets were adapted from Moody and Lewis, Learning from the Crisis in Mali.

Lesson One | 179
• a lack of unity of effort within the U.S. government, including disparate strategies, policies, and plans, as well as differences in organizational culture, roles, and missions;

• a mismatch in national interests, goals, and objectives between the 

United States and Mali;

• inadequate consideration of host nation ownership and legitimacy, 

including Mali’s political will, capacity, compliance with IHL, and accountability; and

• a tactical train and equip focus that neglected institution-building, including considerations of legitimacy. 

General Carter F. Ham, the U.S. Africa Command (AFRICOM) commander 

at the time of the coup, acknowledged this final point: “We were focusing 

our training almost exclusively on tactical or technical matters. We didn’t 

spend probably the requisite time focusing on values, ethics, and a military 

ethos.”13

While host-nation limitations are variables the U.S. government cannot 

control, the country does have considerable influence. Such influence is 

often fragmented in practice (as it was in Mali), with U.S. leaders emphasizing different interests. 

SUSTAINABLE SECURITY: TWO COUNTEREXAMPLES 

The past decade offers two examples where the pattern described above has 

been changed: the Philippines and Colombia. In both cases, the governments 

struggled with security concerns and a history of heavy-handed responses 

to threats with observed gross human rights violations on both sides. In addition, neither government appeared to be providing for its people, offering 

only limited government services and focusing development opportunities 

for select groups of the population. As a result, both countries struggled 

13 “Mali Crisis: U.S. Admits Mistakes in Training Local Troops,” BBC News, 25 January 2013, 

http://www.bbc.com/news/world-africa-21195371.

180 | Security and Legitimacy
with legitimacy within their own populations and internationally. However, 

both these nations adapted their approach to improve their legitimacy and 

effectively address serious security threats. 

In the Philippines, the United States took on an advise-and-assist 

mission for more than a decade using U.S. Army Special Forces, with the 

goal of helping the Philippines fight terrorists. Besides helping Philippine military forces become more tactically proficient, this long-term, onthe-ground partnership led to a number of larger adaptations, including a 

change of senior leader mindset and emphasis, improved targeting processes that mitigated collateral damage, and the establishment of a Civic Action 

Group that institutionalized the military’s role in protecting the population. 

The combined effect of these steps successfully broke the cycle of violence 

and resulted in a dramatic improvement in security.14

Similarly, in Colombia in the 1990s, the Colombian security forces, 

the FARC, and government-sponsored paramilitary forces all committed 

gross abuses of human rights.15 With Plan Colombia, Colombia instituted 

a number of reforms and initiatives to improve its security situation, supported by the U.S. government through extensive security assistance activities.16 Colombia’s early focus was on security and counternarcotics. This 

objective was aided by such initiatives as the Home Guards program, which 

improved ties to local communities and promoted more accurate operations to minimize collateral damage.17 The Colombian government made 

significant progress in human rights compliance and accountability, and also 

bolstered its legitimacy among the population through such programs as 

President Álvaro Uribe’s Plan Nacional de Consolidación (National Consoli14 Geoffrey Lambert, Larry Lewis, and Sarah Sewall, “Operation Enduring Freedom–Philippines: Civilian Harm and the Indirect Approach,” PRISM 3, no. 4 (September 2012): 117–35.

15 FARC is an acronym for Fuerzas Armadas Revolucionarias de Colombia (Revolutionary Armed 

Forces of Colombia—People’s Army), one of the oldest, largest, and wealthiest left-wing rebel 

groups in the country.

16 See “U.S. Policy in Colombia,” Amnesty International, http://www.amnestyusa.org/our-work

/countries/americas/colombia/us-policy-in-colombia.

17 Learning from Colombia: Principles for Internal Security and Building Partner Capacity (Suffolk, 

VA: JCOA, 2013).

Lesson One | 181
dation Plan, or more widely known as Plan Colombia).18 These collective 

efforts to improve legitimacy reduced popular support for the FARC and 

other armed groups. Combined with more effective and targeted offensive 

operations, Colombia now finds itself in a position of strength in ongoing 

peace talks to end decades of conflict.19

These two cases share a number of features. In both cases, the host 

nation government:

• adapted its security forces for more effective offensive operations;

• improved governance for all, not a select few; and

• focused on proportional use of force and human rights compliance.

These features contributed to the reestablishment of security. The first 

factor—the use of force to degrade the threat—is an important element and 

one in which the United States excels, both in its own operations and in advising its partners. The second and third elements—governance and human 

rights compliance—were also critical as they had both near-term and longterm benefits to security. In the short term, these elements reduced popular 

support for armed groups and led to improved intelligence for operations. 

They also were essential to longer-term sustainable security by collectively 

quelling long-standing grievances among the population and aiding reconciliation, strengthening the legitimacy of the host nation both domestically 

and internationally. 

The American experience with Colombia illustrates a model for effective 

security assistance, whereby the government provided tactical-level training 

but also supported Colombian efforts to build institutional capacity. The 

government, guided by a robust U.S. embassy and military advisors on the 

ground and embedded within headquarters, also assisted the Colombian 

military with establishing supportable, niche capabilities for improving operations. All three elements of this approach—tactical-level training, institu18 For more information, see “Plan Colombia,” Embassy of the United States, Bogotá, Colombia, 

http://bogota.usembassy.gov/plancolombia.html.

19 Described more fully in Learning from Colombia.

182 | Security and Legitimacy
tion building, and providing niche capabilities—included efforts designed to 

improve Colombian government legitimacy. These efforts included training 

on the discriminate use of force, improving accountability measures within 

the military justice system, revising the rules of engagement, and reforming 

their national judicial system. The United States also supported Colombian 

initiatives designed to address grievances related to governance and the 

provision of services in rural areas. 

The robust military group (MILGROUP) within the U.S. embassy 

in Bogotá complemented the efforts of the other U.S. interagency partners, highlighting the benefit of a model where the embassy becomes a 

command post for synchronizing government efforts. The longer-term, 

persistent presence of U.S. personnel had other benefits: building strong 

relationships with Colombian counterparts, and thereby increasing U.S. influence. Key elements of this full spectrum approach—tactical-level training, institution building, and providing niche capabilities—combined with 

an emphasis on promoting legitimacy and resourcing U.S. embassy-level 

efforts, would benefit other U.S. security assistance efforts. 

Improved unity of effort across the U.S. government is a best practice that is difficult to achieve in practice. The reality of this effort could 

be seen in the Philippines but was more episodic, depending on personalities at the U.S. embassy. A U.S. government speaking with a single voice 

to the partner nation is also valuable but equally difficult to achieve. For 

example, at a key moment in Iraq, during the surge in 2007, a key leader 

engagement plan was developed for senior Iraqi leaders and all engagements were treated as opportunities to further the objectives in that plan. 

So, instead of U.S. engagements pursuing different and sometimes conflicting agendas with little forward progress, such engagements aimed to move 

the host nation in productive directions agreed upon by all government 

parties. A similar concerted effort across involved elements of the U.S. government in other settings would promote more effective security assistance 

overall.

Lesson One | 183
These efforts need to be resourced and prioritized in light of their potential impact in promoting long-standing stability and improved national security. All too often, U.S. government budgets generously resource a 

potential military response but give short shrift to initiatives that could 

avoid or shorten conflict. In a financially austere environment, more effective security assistance could improve long-term stability and thus curb the 

need for larger-scale operations that tend to be much more expensive. For 

example, even the U.S. contribution to Plan Colombia, a significant investment of time and resources, is dwarfed by U.S. expenditures in Iraq and 

Afghanistan.20 Importantly, Colombia now exports security and training to 

its neighbors in the region, a further dividend of U.S. efforts. While this indirect approach may not always be feasible—and direct action in response 

to security concerns must sometimes be taken—in general, the maxim “an 

ounce of prevention is worth a pound of cure” appears to suggest a promising and fiscally responsible approach to promoting stability and countering 

threats.21

CIVILIAN CASUALTIES BY PARTNER NATIONS

Another factor impacting legitimacy is the issue of civilian casualties during 

conflict; for example, during the Israel-Palestine conflict, significant hostilities broke out periodically in the region. The most recent instance includes 

Israel’s conflict with Hamas in 2014. In this conflict, Israel faced a challenging threat in the form of rocket fire launched into its sovereign territory 

from Gaza, endangering its citizens. Israel used force against Hamas to 

reduce this threat.22

Hamas attacks against Israel are indiscriminate and aimed at civilian 

targets within Israel, and thus are a violation of international law. However, 

20 For example, the total U.S. contribution to Plan Colombia represents about 1 percent (or 

more than $5 billion since 2000) of the overall cost of U.S. operations in Afghanistan. See “U.S. 

Policy in Colombia”; and Learning from Colombia.

21 Benjamin Franklin, “On Protection of Towns from Fire,” Pennsylvania Gazette, 4 February 

1735, http://www.historycarper.com/1735/02/04/on-protection-of-towns-from-fire/.

22 “Gaza Militants Fire Barrage of Rockets into Southern Israel,” Haaretz, 12 March 2014, http://

www.haaretz.com/news/diplomacy-defense/1.579440.

184 | Security and Legitimacy
many observers also raised concerns about the high numbers of civilian 

casualties caused by Israel during the 2014 operations, including UN Secretary General Ban Ki-moon, when UN reports showed that about 7 out 

of every 10 casualties from Israeli operations were civilian noncombatants. 

While Israel has contested this number, they acknowledge that about half of 

the total casualties were civilians.23

The United States has a vested interest in civilian casualties caused by 

Israel given that it provides billions of dollars to Israel for security assistance annually, including weapons, and works diplomatically in the region 

to reduce conflict and promote long-term stability.24 While a number of 

countries and international organizations have voiced concerns about a 

lack of discrimination in Israeli operations, the U.S. government has been 

sending mixed messages regarding Israel and civilian casualties. The State 

Department expressed concerns similar to the UN, including spokeswoman 

Jen Psaki’s comment, “We once again stress that Israel must do more to 

meet its own standards and avoid civilian casualties.”25 However, General 

Dempsey, speaking from a DOD perspective, stated that “I actually do think 

that Israel went to extraordinary lengths to limit collateral damage and civilian casualties.”26 Dempsey also described how a U.S. military team went 

to Israel to observe Israeli forces and their operations, including lessons 

learned regarding civilian protection.27

23 This ratio is much higher than that observed in recent U.S. operations. See, for example, 

Lewis, Drone Strikes in Pakistan.

24 Bernadette Meehan, “5 Things You Need to Know About the U.S.-Israel Relationship Under President Obama,” White House (blog), 1 March 2015, https://www.whitehouse.gov/blog

/2015/03/01/5-things-you-need-know-about-us-israel-relationship-under-president-obama.

25 Nolan Feeney, “U.S. Condemns Gaza School Attack as Israel Says ‘Battle Is Ongoing’,” Time, 

3 August 2014, http://time.com/3076108/gaza-israel-un-ban-ki-moon-hamas/.

26 David Alexander, “Israel Tried to Limit Civilian Casualties in Gaza: U.S. Military Chief,” 

Reuters, 6 November 2014, http://www.reuters.com/article/2014/11/06/us-israel-usa-gaza-id

USKBN0IQ2LH20141106.

27 Notably, no record exists of civilian harm mitigation lessons from this effort in DOD’s Joint 

Lessons Learned Information System (JLLIS), so any such lessons are not being promulgated effectively within the system designated for this purpose. 

Lesson One | 185
Assessing Israeli efforts as “extraordinary” seems overstated, however, 

in light of the best practices developed by the U.S. government to mitigate 

civilian harm above and beyond IHL requirements over the past decade.28

These best practices came through difficult lessons; for example, in the early 

years of Operation Enduring Freedom in Afghanistan, leaders described the 

U.S. approach as doing “everything possible” to avoid civilian casualties, 

however, its operational approach did not always reflect this aspiration in 

practice. While the military generally observed IHL principles of proportionality and distinction, steps still could be taken to better protect civilians. 

But starting in 2009, the United States made a concerted effort to go above 

and beyond the requirements of IHL, moving from compliance to supercompliance in the form of comprehensive civilian harm mitigation efforts. 

Importantly, further analysis demonstrated the operational benefits of this 

move to supercompliance: targeting effectiveness and friendly force protection were not negatively impacted as civilian casualties were reduced. In 

fact, for some operations, mission effectiveness improved as civilian casualties decreased. This significant shift included a general consideration of strategic effects from tactical actions: forces not only asking whether they could

use force, but also whether they should, and if so, what tactical alternatives 

were available to achieve the desired effects while mitigating the impact on 

the civilian population. In addition, the United States developed its Presidential Policy Guidance concerning CT actions, including drone strikes. 

This represented the United States making a policy decision to protect civilians beyond the requirements of IHL. The United States also developed 

evidence-driven tactics for a variety of situations and warfare areas.29

28 Though this becomes less surprising when considering the composition of the lessons learned 

team. The team members from the joint lessons learned organization in J7 were not subject matter experts on the issue of civilian casualties. 

29 Many of these practices and lessons are included in Afghanistan Civilian Casualty Prevention: 

Observations, Insights, and Lessons, Handbook No. 12-16. More detailed lessons and tactics are 

contained in joint lessons learned reports produced for ISAF and U.S. counterterrorism forces, 

collectively referenced in Lewis, Reducing and Mitigating Civilian Casualties. Note that the team 

deployed to Israel did not contain any personnel associated with these efforts. 

186 | Security and Legitimacy
While Israel reports considerable efforts to comply with IHL, it does not 

seem to have gone through a similar process of pursuing supercompliance. 

The forces’ tactic of roof knocking, for example, where small weapons are 

used to alert residents that their building is about to be destroyed, appears 

analogous to the green laser dazzler U.S. forces used in checkpoint situations.30 They are both methods of warning, but they are both equally flawed 

in that they do not reliably and effectively protect civilians. The U.S. government observed this deficiency with the laser dazzler and changed its tactics 

and tools to reduce civilian deaths at checkpoints. Israel should similarly 

reexamine their tactic and explore other alternatives, as well as creatively 

improve their processes overall so that they better protect civilians while 

maintaining effectiveness. 

High civilian tolls detract from sustainable security; Israel’s tactics 

harm civilians and continue to fuel resentment among its neighbors. Israel’s periodic military operations, used to “mow the grass,” match Galula’s 

observation that “. . . conventional operations by themselves have at best 

no more effect than a fly swatter. Some guerrillas are bound to be caught, 

but new recruits will replace them as fast as they are lost.”31 America could 

do more to affect this. Currently, U.S. engagements and public remarks 

concerning Israel are inconsistent, reducing the government’s ability to influence Israel to learn relevant lessons from their own experiences while 

offering related lessons from the U.S. experience in Afghanistan and elsewhere. By unifying U.S. engagements and pushing for learning and improvement in Israel’s efforts to reduce civilian casualties and improve its 

30 See, for example, Adam Taylor, “‘Roof Knocking’: The Israeli Military’s Tactic of Phoning 

Palestinians It Is about to Bomb,” Washington Post, 9 July 2014, https://www.washingtonpost

.com/news/worldviews/wp/2014/07/09/roof-knocking-the-israeli-mjilitarys-tactic-of-phoning

-palestinians-it-is-about-to-bomb/; and Patrick Tucker, “What Will Happen to You When You 

Storm a U.S. Military Checkpoint?,” Defense One, 15 July 2015, http://www.defenseone.com

/technology/2015/07/what-will-happen-you-when-you-storm-us-military-checkpoint/117898/.

31 “Mowing the grass” refers to periodic combat operations to temporarily reduce threat levels, 

while doing little to keep the resurgence of the threat down in the future. See, for example, Daniel 

Byman, “Mowing the Grass and Taking Out the Trash,” Foreign Policy, 25 August 2014, http://

foreignpolicy.com/2014/08/25/mowing-the-grass-and-taking-out-the-trash/; and David Galula, 

Counterinsurgency Warfare: Theory and Practice (Westport, CT: Praeger, 1964), 51.

Lesson One | 187
legitimacy, the U.S. government might reduce grievances and break the 

pattern of long-standing security challenges in the region, promoting Israel’s security against continuing attacks, as well as U.S. strategic interests. 

Providing security assistance—and specifically the provision of 

weapons—to nations that then create high civilian tolls with their operations may make the American government appear complicit in the resulting humanitarian concerns. For example, providing bombs to Israel while 

the UN and other international observers raise concerns about Israel’s lack 

of discrimination and proportionality in airstrikes affects the perception of 

U.S. legitimacy. A similar situation arose with Saudi Arabia’s 2015 airstrike 

campaign in Yemen.32 With the United States providing weapons, operational support, and intelligence to Saudi Arabia, the civilian casualties from 

their airstrikes reflect back on the government. And, in cases where the 

United States is providing materiel or operational assistance, these actions 

carry an implicit responsibility for influencing the use of those resources. 

This represents not only a legal responsibility under IHL, but also a concern 

for promoting U.S. legitimacy and interests.33 The U.S. government can take 

a number of steps to promote civilian protection as part of ongoing security assistance programs, including specific tools for reducing civilian harm, 

training and mentoring in civilian harm mitigation, and tracking and analyzing civilian casualties. Overall, these actions should both promote legitimacy and reduce grievances, thus improving long-term security. 

32 Mohammed Tawfeeq and Dana Ford, “Saudi Arabia Launching Political Solution Campaign 

in Yemen,” CNN News, 21 April 2015, http://www.cnn.com/2015/04/21/middleeast/yemen

-crisis/.

33 The American government has two reasons for promoting IHL compliance by other nations 

under international law: (1) under common Article 3, the United States is considered a party to 

the conflict, representing cases where the government provides materiel support to operations; 

and (2) under common Article 1, with the general requirement for promoting IHL compliance 

by other nations. This general requirement is particularly relevant for partners where the U.S. 

government provides security assistance. 

188 | Security and Legitimacy
CHAPTER 21

189

LESSON TWO: 

PRACTICING LEGITIMACY

A key element of U.S. legitimacy in the context of national security is conformity of U.S. operations to international and domestic laws, particularly 

IHL, also known as LOAC.1 IHL governing the conduct of armed conflict 

falls into two categories: the conduct of hostilities (e.g., the means and 

methods of fighting, including protecting civilians) and detention (e.g., 

how captured personnel are treated). Over the past decade, domestic and 

international observers have voiced concerns over both aspects of U.S. activities. Concerns over the U.S. conduct of hostilities include prohibited 

treatment of medical facilities (e.g., making them military objectives or not 

observing their protected status); such practices as signature drone strikes 

in CT operations (where the U.S. government acknowledges that it does 

not have a good understanding of who was being targeted); and incidents 

that caused civilian casualties during U.S. counterterrorism operations in 

Pakistan and Yemen, as well as counterinsurgency operations in Iraq and 

Afghanistan. While not the focus of this discussion, U.S. treatment of detainees raises concerns about abuses in Guantánamo Bay Detention Center, 

Abu Ghraib prison and other facilities in Iraq, Bagram in Afghanistan, the 

CIA’s use of enhanced interrogation techniques—some of which are widely 

1

 The body of IHL primarily consists of the four Geneva Conventions of 1949 and the two Additional Protocols of 1977.
190 | Security and Legitimacy

regarded to constitute torture—holding detainees secretly in various U.S. 

facilities in Guantánamo and other locations around the world, and extraordinary rendition practices.2

 

CONDUCT OF HOSTILITIES

The United States has long been committed to upholding IHL with regard 

to the conduct of hostilities, including minimizing collateral damage that 

encompasses civilian casualties (both deaths and injuries) and unintended damage to civilian objects (e.g., facilities, equipment, or other property not considered a military objective). In support of these goals, the U.S. 

military developed capabilities for precision engagements and accurate 

identification of targets, including developing refined targeting processes 

and predictive tools to better estimate and minimize collateral damage. 

These capabilities enabled combat operations with fewer civilian casualties. Despite these efforts, and while maintaining compliance with IHL, 

the U.S. military found over the past decade that these measures were not 

always sufficient to meet the goal of minimizing civilian casualties. The resulting civilian casualties ran counter to American desires and strategic objectives, seemingly contradicting public statements that the United States 

did “everything possible” to avoid civilian casualties, and therefore caused 

negative second-order effects that impacted U.S. national, strategic, and 

operational interests.3 The rest of this chapter will discuss civilian protection in initial combat operations in Afghanistan and Iraq, counterinsurgency operations in those countries, and CT operations outside of declared 

theaters of conflict.

2

 Extraordinary rendition is the transfer of a detainee to a foreign country for the purposes of 

detention and interrogation without following legal due process. 

3

 International Security Assistance Force (ISAF), “Operational Update 06 February 2012” 

(press release, Kabul, Afghanistan, 6 February 2012), http://www.rs.nato.int/images/stories

/File/06%20Feb%2012%20ISAF%20spokesperson%20Press%20Statement.pdf.
Lesson Two | 191

AFGHANISTAN, 2001–2

The United States reaffirmed its commitment to minimizing harm to civilian populations when it commenced major combat operations in Afghanistan and Iraq in 2001 and 2003, respectively. On 7 October 2001, U.S. forces 

began combat operations to capture al-Qaeda leadership and eliminate Afghanistan as a launching point for terrorism. Within days of the start of 

operations, international media reported incidents of civilian casualties. 

Many of these incidents involved villages where suspected enemy fighters were located, highlighting the challenge posed by fighting an enemy 

that eschews its obligations under IHL (e.g., not wearing a uniform and 

hiding among the civilian population). As a result, obtaining positive identification was more problematic, and U.S. engagements relied more on selfdefense considerations based on perceived hostile acts or intent. Probably 

the two highest profile incidents during this time were the 21 December 

2001 U.S. air attack on a convoy the Afghan government claimed to comprise tribal leaders; and a 1 July 2002 U.S. airstrike on a group that was 

revealed to be a wedding party in Deh Rawud, in central Afghanistan. In 

both attacks, U.S. aircraft had observed ground fire and engaged because 

of self-defense considerations. 

MAJOR COMBAT OPERATIONS IN IRAQ, 2003

In major combat operations in Iraq, the ability to distinguish the enemy 

from the civilian population was simplified by the fact that the enemy 

was the Iraqi military. Iraqi forces were generally located apart from civilian areas; their military equipment and uniforms reduced the ambiguity 

of engagement decisions relative to those faced by U.S. forces in Afghanistan. However, the Iraqi military purposely violated IHL rules designed 

to protect the peaceful civilian population by employing human shields, 

misusing protected symbols for humanitarian organizations (e.g., the Red 

Crescent), and placing equipment in protected sites. In addition, Saddam Fedayeen (or Men of Sacrifice) forces did not wear uniforms and fought using 

irregular tactics, contributing to challenges obtaining positive identification 

for strikes. In contrast, the United States and its allies went to great lengths 
to minimize collateral damage; for example, in Iraq, similar to Afghanistan, 

most air engagements used precision-guided munitions. While DOD assessments of civilian casualties during major combat operations in Iraq do 

not appear to have been performed, an independent assessment judged 

U.S. preplanned attacks to be relatively effective in minimizing civilian casualties. The main concerns over civilian casualties centered on Coalition 

forces conducting time-sensitive targeting of leadership in urban areas.4 

COUNTERINSURGENCIES IN IRAQ AND AFGHANISTAN5

As insurgencies developed in Iraq and Afghanistan, the United States 

was forced to adopt a counterinsurgency (COIN) approach in these countries for which it was largely unprepared. With civilian protection being a 

central feature of COIN, the reduction and mitigation of CIVCAS (civilian 

casualties) became a key issue in these operations. 

COIN in Iraq

In Iraq, civilian casualties were primarily caused by escalation of force 

(EOF) incidents, both at checkpoints and during convoy operations. This 

resulted in significant outcry from nongovernmental organizations (NGOs) 

and the media; the attack on a vehicle containing Italian journalist Giuliana 

Sgrena and her rescuers during an EOF incident further increased visibility of this issue.6

 In mid-2005, U.S. forces in Iraq adapted and heightened 

efforts, which were widely seen as successful, to prevent and mitigate the 

effects of CIVCAS.7 Still, this issue was not completely resolved; later in 

4

 Off Target: The Conduct of the War and Civilian Casualties in Iraq (New York: Human Rights 

Watch, December 2003).

5

 This section was adapted from Lewis, Reducing and Mitigating Civilian Casualties.

6

 Associated Press, “U.S. Orders Probe of Fatal Shooting of Italian Officer,” NBC News, 8 March 

2005, http://www.nbcnews.com/id/7089948/ns/world_news-mideast_n_africa/t/us-orders

-probe-fatal-shooting-italian-officer/#.VfgBGrT9pi0.

7

 Though MNF-I did not establish a dedicated tracking cell for civilian casualties as did ISAF, 

MNF-I Headquarters tracked these casualties for certain periods as visibility of the issue increased. For example, more than 500 civilian casualties resulted from EOF incidents in the first 

half of 2005. 

192 | Security and Legitimacy
the conflict, Multinational Force–Iraq (MNF-I) pointed to the strategic importance of EOF and cited the lack of available nonlethal capabilities and 

inadequate training in their use as key deficiencies.

COIN in Afghanistan

In Afghanistan, President Hamid Karzai made his first public statements 

regarding CIVCAS in 2005, asking the Coalition to take measures to reduce 

such casualties. Early initiatives to minimize CIVCAS in Afghanistan, such 

as the “Karzai 12” rules for approving operations in 2005 and the initial 

Commander, International Security Assistance Force (COMISAF) tactical 

directive in 2007, were not successful in reducing high profile incidents.8

Additional efforts, including redrafting the COMISAF tactical directive in 

2008, were made in response to several high-profile, high-CIVCAS incidents; however, another incident in May 2009 in Bala Baluk, Farah Province, where dozens of civilians were killed in U.S. airstrikes, highlighted 

the lack of progress in effectively addressing civilian casualties.9

The Bala Baluk incident served as an impetus for significant efforts to 

reduce CIVCAS by both ISAF and the United States. Since mid-2009, ISAF 

leadership clearly and consistently emphasized the importance of reducing CIVCAS, and ISAF modified its policies and procedures to this end. 

Similarly, concerted efforts on the part of the United States—spearheaded 

by the U.S. Joint Staff CIVCAS Working Group, led by a three-star general 

officer—aided efforts to improve predeployment training to better prepare 

U.S. forces for CIVCAS reduction and mitigation in Afghanistan. This included efforts to provide additional nonlethal and low collateral damage 

tools, as well as address deficiencies in predeployment training regarding 

the use of nonlethal tools already available. Collectively, these dedicated 

efforts bore fruit; because of improved guidance and training, ISAF forces 

8

 “Karzai 12” refers to a dozen new ROE sent down by Gen McChrystal to reduce CIVCAS. For 

more on the COMISAF tactical directive, see Civilian Harm Tracking.

9

 See “Tactical Directive” (memorandum, ISAF Headquarters, Kabul, Afghanistan, 30 December 

2008), http://www.nato.int/isaf/docu/official_texts/Tactical_Directive_090114.pdf; and Carlotta Gall and Taimoor Shah, “Civilian Deaths Imperil Support for Afghan War,” New York Times, 6 

May 2009, http://www.nytimes.com/2009/05/07/world/asia/07afghan.html?_r=0.

Lesson Two | 193
adapted how they conducted operations in light of CIVCAS concerns, and 

ISAF-caused CIVCAS decreased over time. Importantly, analysis of available data suggested these CIVCAS mitigation efforts represented a winwin, with no apparent cost to mission effectiveness or increase in friendly 

force casualties.

In a review of U.S. operations, cases where the government failed to 

comply with IHL were rare, and were usually associated with U.S. forces 

being in close proximity to the population to better protect it from enemy 

attacks.10 While IHL cautions military forces to keep a distance from civilians and protected functions, such as medical facilities, tension exists 

between compliance with IHL in this regard and civilian protection strategies that put U.S. forces between the civilian population and an indiscriminate enemy that often targeted civilians for the purpose of intimidation. 

COUNTERTERRORISM OPERATIONS

The United States conducts CT operations to target members of al-Qaeda, 

the Taliban, ISIL, and affiliated groups. These operations have been conducted both in major theaters of operation (e.g., Iraq and Afghanistan) and 

in CT campaigns outside declared theaters of operation (e.g., Pakistan and 

Yemen). The government justifies its CT campaign, in part, based on an imminent threat to U.S. interests and the minimal cost of this approach to civilian lives. 

As discussed earlier, U.S. officials have regularly stated that reducing 

the risk of CIVCAS in its CT operations is a national priority, and that the 

United States does everything possible to that end. The U.S. government’s 

commitment to minimize civilian harm is laudable. However, its descriptions of civilian casualties for operations in Pakistan and Yemen were 

significantly lower than every other estimate available, including several 

open source estimates and a recent UN report.11 These civilian casualties 

include those arising from drone strikes, where U.S. officials and some aca10 This review was documented in a classified report by Larry Lewis, IHL Lessons from the Past 

Decade: Operations in Afghanistan (Alexandria, VA: CNA, 2015).

11 Emmerson, Promotion and Protection of Human Rights.

194 | Security and Legitimacy
demics have described the precision and low collateral damage nature of 

these strikes with adjectives such as “surgical” and “humane.”12 For CT 

operations, the striking disparity between the two sets of civilian casualty 

estimates—and especially unrealistic comments from the U.S. government 

about zero civilian casualties—injured U.S. credibility and legitimacy in the 

international community. 

The recent case of a U.S. drone strike killing an American hostage in 

Pakistan in January 2015 illustrates the twin challenges of estimating collateral damage before a strike and characterizing the actual levels of civilian 

casualties after a strike.13 In Afghanistan, CIVCAS from airstrikes had the 

same challenges: only the presence of ground forces, host nation security 

forces, and communication with the population and international organizations allowed refinements of incomplete BDAs based on air platform observations.14 As a result, the government’s initial estimates, which tended 

to be too low, could be revised in light of additional evidence. 

Improvements have been made over time for U.S. CT operations, according to open source estimates. For example, in Pakistan, available information points to the average number of civilian deaths per drone strike 

decreasing over time, with the likelihood of CIVCAS (as measured by the 

rate of operations causing civilian casualties) also decreasing; less than 20 

percent of airstrikes caused civilian casualties in 2010, with this rate falling 

to less than 10 percent for 2013 and dropping to zero for 2014. Overall, U.S. 

CT operations have become less likely to cause civilian deaths over time.15

However, it appears that there is still room for improvement, especially in Yemen. The percentage of U.S. operations in Yemen that caused 

CIVCAS was significantly higher than those seen for CT operations in 

12 Such descriptions from academia include Daniel Byman, “Why Drones Work: The Case for 

Washington’s Weapon of Choice,” Foreign Affairs, July/August 2013; and Lewis, “Drones.”

13 Adam Entous, Damian Paletta, and Felicia Schwartz, “American, Italian Hostages Killed in 

CIA Drone Strike in January,” Wall Street Journal, 23 April 2015, http://www.wsj.com/articles

/american-italian-hostages-killed-in-cia-drone-strike-in-january-1429795801.

14 Sewall and Lewis, Civilian Harm Tracking.

15 Lewis, Improving Lethal Action.

Lesson Two | 195
Afghanistan conducted by U.S. and international forces. While CIVCAS 

rates for the two countries are not necessarily directly comparable, operations in Afghanistan illustrate that lower rates can be achieved during CT 

operations in general. This point is echoed by reduced CIVCAS rates for 

more recent operations in Pakistan. Also, with regard to CT operations in 

Afghanistan, ground operations were observed to have a much smaller 

rate of civilian casualties than airstrikes, illustrating that the type of operation has an effect on the ability to protect civilians from harm during these 

operations.16

16 Ibid.

196 | Security and Legitimacy
CHAPTER 22

197

CONCLUSIONS AND RECOMMENDATIONS 

A FINAL WORD

U.S. national security would benefit from an increased consideration of legitimacy within the overall calculus of U.S. national security policy. Lack 

of security progress in places like Iraq (against ISIL), Nigeria (against Boko 

Haram), and Mali can be tied to lack of legitimacy. Conversely, the issues 

in Colombia and the Philippines show that improving legitimacy as part of 

a full-spectrum security assistance effort can reduce grievances and undermine the factors that fuel conflict. These considerations promote sustainable security, enabling more effective response to threats and possibly even 

avoiding costly do-overs, such as the current U.S. involvement in Iraq with 

ISIL. 

Likewise, the U.S. government has improved the humanitarian conduct 

of its operations during the past decade. Because of early lapses in behavior and a few continuing concerns about the use of force and transparency, 

however, the international reputation and legitimacy of the nation has been 

tarnished. Taking steps to learn lessons from these events would enhance 

the international legitimacy of U.S. actions and demonstrate that our values 

consistently govern our conduct. These steps would also promote effective 

security assistance and serve as a model for other countries regarding the 

responsible use of force, thereby advancing U.S. objectives of promoting the 

rule of law and accountability within the international community. More 
198 | Security and Legitimacy

important, this also improves the government’s ability to further develop 

partner legitimacy, with expected benefits to security described above. In 

the spirit of lessons learned, this work lays out specific steps to take for improved legitimacy and national security.

RECOMMENDATIONS

This section concludes with two sets of recommendations. The first set 

highlights the need for the government to change its approach to working 

with partner nations, which will improve security assistance and other 

efforts to promote long-term stability and legitimacy in the future:

A-1. Revisit U.S. security assistance

A-2. Prioritize involvement of U.S. ground forces in security assistance

A-3. Improve promotion of IHL with U.S. partners 

In addition, as discussed earlier, the United States showed marked improvement in its own operations with regard to IHL mandates for civilian 

protection, moving from mixed to more consistent compliance, and even 

supercompliance in some instances. These practices have been replicated in 

several theaters and by other nations, for example:

• Civilian harm mitigation tactics developed and employed in Afghanistan are used regularly in current U.S. operations in Syria and Iraq to 

better protect civilians during airstrikes; and

• U.S. civilian harm mitigation doctrine and handbooks have informed 

partner nation training in Africa, South America, and Asia.

While commendable, overall progress occurred in the shadow of specific 

concerns and abuses, such as concerns over civilian casualties in Pakistan 

and elsewhere. For example, after hostages were killed during a drone 

strike operation, President Obama remarked: “These aren’t abstractions, 

and we’re not cavalier about what we do, and we understand the solemn 
Conclusions and Recommendations | 199

responsibilities that are given to us.”1 In fact, these instances of civilian 

harm can serve as a rallying cry for violent terrorist organizations and as 

a grievance fueling violence; at the same time, they undermined the country’s legitimacy and the ability of the U.S. government to influence other 

nations and actors toward constructive and desirable behavior.2

To improve U.S. legitimacy in the future and better enable national security efforts, four recommendations are provided for improving the legitimacy of U.S operations in transparent ways:

B-1. Ensure U.S. institutions are accountable to IHL 

B-2. Create organizational focus on IHL compliance and supercompliance

B-3. Perform independent reviews of current operations

B-4. Codify recent U.S. best practices into international norms for the 

conduct of hostilities

RECOMMENDATION A-1: REVISIT U.S. SECURITY ASSISTANCE

Security assistance was described earlier as having a tactical train-andequip focus that often neglected the essential tasks of institution-building, 

as well as changing the mindset and strategy to promote legitimacy and 

effectiveness. Recently, the U.S. military has increased its focus on building institutions, which represents a move in the right direction. At the 

same time, more can be done, and this focus should emphasize factors that 

promote legitimacy as well as effectiveness. 

Especially for security assistance where partner nations are facing security threats requiring the use of force, where a full spectrum approach

—tactical-level training, institution-building, and providing niche capabilities—with an emphasis on promoting legitimacy would encourage long1

 Peter Baker and Julie Hirschfeld Davis, “Amid Errors, Obama Publicly Wrestles with Drones’ Limits,” New York Times, 24 April 2015, http://www.nytimes.com/2015/04/25/us/politics/hostage

-deaths-show-risk-of-drone-strikes.html?_r=0.

2

 Hassan Abbas, “How Drones Create More Terrorists,” Atlantic, 23 August 2013, http://www

.theatlantic.com/international/archive/2013/08/how-drones-create-more-terrorists/278743/.
term stability and improved national security. These efforts should be 

resourced adequately, based on a cost-benefit analysis showing that initiatives to avoid or shorten conflict are much less expensive than a potential 

military response. In the case of the Philippines and Colombia, the model 

where the embassy served as a command post demonstrated several benefits, including synchronizing U.S. government efforts and building strong 

relationships and U.S. influence with counterparts. This situation could 

help the government avoid different and sometimes conflicting agendas 

that limit forward progress. 

RECOMMENDATION A-2: PRIORITIZE U.S. GROUND FORCES’ 

INVOLVEMENT IN SECURITY ASSISTANCE

Recent U.S. policy has resisted the use of troops on the ground, in a sharp 

contrast to the hundreds of thousands of forces who deployed to Iraq and 

Afghanistan during the past decade. While the latter level of deployment 

may not be sustainable or desirable, a policy of zero or minimal U.S. forces 

on the ground offers strategic costs. The United States should consider 

dedicating forces on the ground for advise-and-assist roles in security assistance cases where the host nation is actively involved in armed conflict. 

Without ground forces, the government abdicates its ability to influence 

and shape the operational approach, which includes making military 

efforts effective to reduce prolonged conflict and helping the host nation 

improve its legitimacy. This also includes using American influence to 

reduce abuses of power and encourage approaches that resolve grievances 

fundamental to the conflict. 

Most notably, this kind of interaction does not require U.S. forces to 

take direct combat roles. In both the Philippines and Colombia, U.S. policy 

prevented military forces from assuming combat roles, yet they had a 

significant positive effect on host nation forces through tactical advising, 

reinforcing a will to fight, and imparting a population-centric ethos. By 

foregoing this potential role for U.S. forces, the government loses a chance 

to positively influence other nations and promote their legitimacy. Lack of 

U.S. involvement also provides opportunities for other nations that do not 

200 | Security and Legitimacy
share these same values to influence the host nation population and possibly to perpetuate the conflict. An immediate application of this recommendation would be to expand the number of U.S. advisors on the ground 

in Iraq, using them similarly to how Special Forces were employed in the 

Philippines, to advise and assist Iraqi Security Forces and Kurdish Peshmerga forces at the tactical level as they strive to counter ISIL.3

 Partnering 

U.S. forces with those on the ground would involve changes to organization, equipment, and training/education to match the requirements for this 

role. 

RECOMMENDATION A-3: IMPROVE PROMOTION 

OF IHL WITH U.S. PARTNERS

The United States exerts considerable effort to provide security assistance to build security force capacity and proficiency in partner nations. 

Under current U.S. law, humanitarian considerations remain paramount 

in national decisions to conduct security assistance; patterns of IHL violations can halt such assistance to units and even entire nations due to the 

Leahy Law.4 While IHL compliance affects decisions regarding whether to 

provide assistance, however, the U.S. approach to promoting IHL compliance remains incomplete. The current U.S. approach—chiefly providing 

education and training on IHL—is based on the tenet that IHL violations 

stem from ignorance of the requirements of international law. In fact, this 

3

 “ISIL and Peshmerga Forces Battle for Ground Near Kirkuk,” Al Jazeera, 6 July 2015, http://www

.aljazeera.com/news/2015/07/isil-peshmerga-forces-battle-ground-kirkuk-150706042712437

.html.

4

 Written in 1996 to control U.S. military aid to Colombia and named for Senator Patrick J. 

Leahy, the Leahy amendment (22 U.S. Code § 2304 - Human rights and security assistance) 

seeks to promote host nation accountability and to motivate nations to address patterns of gross 

violations. However, some argue that the Leahy Law should not be applied in cases where nations 

face exigent threats. Eric Schmitt, “Military Says Law Barring U.S. Aid to Rights Violators Hurts 

Training Mission,” New York Times, 20 June 2013, http://www.nytimes.com/2013/06/21/us

/politics/military-says-law-barring-us-aid-to-rights-violators-hurts-training-mission.html.

Conclusions and Recommendations | 201
is often not the case.5

 For example, IHL violations are often committed by 

forces who are well aware of international laws but decide it is more operationally expedient to break the rules. However, case studies of events 

in Colombia and the Philippines show operational benefits from reducing 

IHL violations and more effectively protecting the population.6 To more effectively promote compliance in partner nations, the U.S. and international 

community needs to move beyond their current approach by making the 

case to partner nations that operational expediency is not a sufficient justification for violating IHL and can, in fact, be counterproductive in the long 

term.7 The recommendations for U.S. actions below are important to the 

success of this effort; if compliance is the behavior that the U.S. government wants to promote in others, it must consistently model legitimacy in 

its own actions. 

There are also cases where partners seem to follow IHL, but their operations still result in high civilian tolls or other negative humanitarian 

impacts. This situation hurts the partner nation, creating grievances and 

exacerbating security challenges, and injures U.S. legitimacy. In those cases, 

the United States should work to help partner nations consider creative 

ways to reduce civilian casualties from their operations. The government 

could also consider instituting proactive training and education to enhance 

partner capabilities for reducing civilian casualties. These initiatives could 

be tied to other elements of security assistance, such as the DOD’s Foreign 

Military Sales (FMS) program.8

5

 Daniel Muñoz-Rojas and Jean-Jacques Frésard, The Roots of Behaviour in War: Understanding 

and Preventing IHL Violations (New York: International Committee of the Red Cross, 2004), 

https://www.icrc.org/eng/assets/files/other/irrc_853_fd_fresard_eng.pdf. 

6

 MajGen Geoffrey Lambert, USA (Ret), Dr. Larry Lewis, and Dr. Sarah Sewall, The Salience of 

Civilian Casualties and the Indirect Approach: Operation Enduring Freedom-Philippines (Washington, DC: Joint Forces Command, 2012); and Learning from Colombia.

7

 This can serve as motivation for nations to better operationalize IHL by incorporating it into 

policy, doctrine, senior leader education, and accountability processes. 

8

 For more information, see Defense Security Cooperation Agency, FMS program at http://www

.dsca.mil/programs/foreign-military-sales-fms.

202 | Security and Legitimacy
RECOMMENDATION B-1. ENSURE U.S. INSTITUTIONS 

ARE ACCOUNTABLE TO IHL

One safeguard for the future is to make sure institutions involved in armed 

conflict activities (e.g., the use of force) are held accountable to IHL. For 

example, the U.S. military is legally obligated to comply with IHL; it is 

built into the U.S. Uniform Code of Military Justice (UCMJ), and forces can 

be criminally charged for IHL violations when necessary.9 While such accountability measures do not always prevent abuse, they avoid institutional impunity and serve as a deterrent to make it less likely that others will 

follow the same example.

Of course, taking steps to ensure IHL compliance is not simply a legal 

consideration. For the U.S. military, ethics are a fundamental part of the 

profession of armed service. For example, Chairman of the Joint Chiefs of 

Staff General Dempsey provided the following guidance to all members of 

the military:

Our oath demands each of us display moral courage and always 

do what is right, regardless of the cost. . . . Commitment to the rule 

of law is integral to our values which provide the moral and ethical 

fabric of our profession.10

In addition, the U.S. military as an institution incorporates measures meant 

to ensure compliance with IHL. For example, IHL principles are built into 

the military’s policy, doctrine, training, and accountability processes. When 

civilian casualties were suspected in Afghanistan and in recent operations 

in Iraq and Syria, command-directed investigations were conducted routinely. These investigations were used as tools for learning, but they also 

looked for possible violations of ROE or any other IHL considerations. 

9

 The UCMJ (64 Stat. 109, 10 U. S. C. Chapter 47) serves as the foundation of U.S. military law. 

UCMJ applies to all members of the uniformed Services: the Air Force, Army, Coast Guard, Marine Corps, Navy, National Oceanic and Atmospheric Administration Commissioned Corps, 

and Public Health Service Commissioned Corps. For more information, see http://www.ucmj.us.

10 Martin E. Dempsey, America’s Military: A Profession of Arms (white paper, Joint Chiefs of Staff, 

Washington, DC, 2012), 3.

Conclusions and Recommendations | 203
While such violations were rare, this practice promoted a culture of military accountability to IHL. These additional measures—doctrine, training, 

policy, and a culture of accountability—should also be developed in other 

U.S. organizations that conduct armed conflict activities (e.g., the use of 

lethal force) in the future.

 

RECOMMENDATION B-2. CREATE AN ORGANIZATIONAL 

FOCUS ON IHL

During the past decade of operations, one best practice stands out when 

resolving humanitarian concerns: when the U.S. military established an organizational focus on that issue. For example, when CIVCAS became a strategic issue for operations in Afghanistan, two organizations were created to 

reduce CIVCAS and improve civilian harm mitigation: the Civilian Casualty Mitigation Team within ISAF headquarters in Kabul and the Joint Staff 

Civilian Casualties Working Group in the Pentagon. Both organizations 

yielded tangible improvements. 

Note, however, that these two efforts represent ad hoc measures intended to respond quickly to immediate problems within specific operations. In 

contrast, currently no institutional office or position exists, such as a deputy 

assistant secretary of defense, to address the conduct of hostilities. Thus, 

while the ad hoc measures were successful in the short term for improving 

operations, their ad hoc nature leaves an institutional gap in DOD for policies and practices regarding the conduct of operations with respect to IHL. 

The lack of an institutional focus for the conduct of operations, within 

DOD or elsewhere, complicates the process of transferring key lessons from 

one operation to another.11 This means institutional organizations cannot 

inform current operations in Iraq and Syria. There is also no such institutional focus for CT operations in Yemen and Pakistan, which include activities beyond those by the U.S. military. When faced with this lack of focus 

and commensurate expertise, the U.S. government may turn to nonexperts 

11 “One of the enduring challenges of military operations [is] the difficulty of taking hard-fought 

lessons from one theater and applying them to others.” Alexander Powell et al., Summary Report: 

U.S.–UK Integration in Helmand (Arlington, VA: CNA, February 2016). 

204 | Security and Legitimacy
for its policy and practice, which can have disastrous results, as evidenced 

by the inappropriate use of the Joint Personnel Recovery Agency (JPRA) as 

advisors for detainee interrogations after 9/11.12

RECOMMENDATION B-3. PERFORM INDEPENDENT REVIEWS 

OF CURRENT OPERATIONS

For military CT actions, operational assessments were often done by the 

organization conducting the operation, without the benefit of independent 

reviews. Thus, congressional oversight of those operations generally relied 

on the organizations to grade their own papers. 

Independent reviews bring value to an organization for several reasons. 

Besides being helpful when the group faces a potential conflict of interest, 

an objective external review may identify blind spots and misconceptions. 

Illustrating the value of independent reviews, the U.S. military and international forces operating in Afghanistan benefitted from multiple independent reviews to improve their ability to reduce civilian harm and increase 

their legitimacy.13 These examples illustrate in-stride reviews that informed 

current as well as future operations and led to improved guidance, tactics, 

and training. They also reveal areas of misunderstanding regarding how 

CIVCAS occurred; in these cases, existing guidance and tactics were ineffective because they failed to address actual root causes. Independent reviews 

featuring an evidence-based approach enabled tailored solutions that were 

seen as win-win opportunities—mission success improved while civilian 

casualties decreased. Such a review process should be standard practice in 

U.S. operations, starting with examining the issue of civilian harm in CT 

operations in Yemen, Pakistan, Syria, and Iraq. 

Note that international expectations for transparency and accountability 

can collide with the inherent nature of covert operations. However, “need to 

know” can at times be used as a cloak to avoid accountability. Importantly, 

objective and independent reviews can still be conducted at classified levels. 

12 In fact, it has already done so with regard to lessons from Israel on the conduct of operations, 

as discussed later in this work.

13 A complete list of these reviews is included in Lewis, Reducing and Mitigating Civilian Casualties. 

Conclusions and Recommendations | 205
In fact, the U.S. military has a history of such reviews, requesting them both 

for civilian harm mitigation in Afghanistan (as described above) and for 

overall lessons regarding IHL compliance from Afghanistan operations.14

Establishing such independent reviews as a standard practice for future 

operations, covert or not, could identify and mitigate patterns of IHL violations earlier; for example, the reviews could mitigate the need for congressional after action reports, which provide transparency only after the fact, 

with no ability to shape ongoing operations or shape public perceptions of 

U.S. legitimacy. 

RECOMMENDATION B-4. CODIFY RECENT U.S. BEST PRACTICES 

IN INTERNATIONAL NORMS FOR THE CONDUCT OF HOSTILITIES

As described above, the United States has made distinct progress in compliance—and indeed supercompliance—with IHL over the past decade, 

though with a few exceptions. Codifying these best practices would help 

the government be more consistent in sustaining this progress in future 

operations. 

A similar opportunity exists for recent U.S. progress in the conduct of 

hostilities. A Copenhagen-like effort focused on best practices and principles would be beneficial for addressing the complexities of modern warfare, 

including drones use, targeting individuals, and effectively dealing with 

modern insurgent tactics that endanger noncombatant civilians.15 Such an 

effort should include the recent progress made in Afghanistan, Iraq, and 

Syria regarding protection of civilians, as well as similar progress made by 

the situations in the Philippines and Colombia. 

14 Larry Lewis, IHL Lessons from the Past Decade: Operations in Afghanistan (Arlington, VA: CNA, 

2015).

15 Refers to the Copenhagen Process, which was launched by the Danish Government in 2007 

to address a range of practical and legal challenges to nations and organizations involved in international military operations. For our purposes, the report published by the group also applies 

to IHL, armed conflict, and peace operations. See The Copenhagen Process: Principles and Guidelines (Copenhagen, Denmark: Ministry of Foreign Affairs, 2007), http://um.dk/en/politics-anddiplomacy/copenhagen-process-on-the-handling-of-detainees-in-international-military-operations/~/media/368C4DCA08F94873BF1989BFF1A69158.pdf.

206 | Security and Legitimacy
This effort would complement current U.S. initiatives regarding technology proliferation. For example, the government recently revised its 

export policy regarding drones for military use.16 This policy includes an 

assessment of the receiving country’s intent for use of these platforms and 

an evaluation that this use conforms to IHL.17 However, the past decade 

has shown that tragic events can happen even when a force is complying 

with IHL, which drove the United States to develop best practices above 

and beyond IHL to improve civilian protection within its legal use of force. 

Developing the conduct-of-hostilities equivalent to the Copenhagen Process 

would ideally advance international practice as well as advance U.S. interests, such as the concerns evident in the recent U.S. drone export policy. 

CLOSING

The United States has been generally effective in attaining the short-term 

stability of host nation governments after dedicating adequate resources; 

however, the equally critical goal of reaching longer-term stability and legitimacy has been more elusive. U.S. forces are back in Iraq yet again, this time 

to deal with ISIL; likewise, security assistance in Africa has not stopped repeated uprisings from the Tuareg in Mali or continuing problems from Boko 

Haram in Nigeria.18 As seen in these examples, failure to promote long-term 

stability creates opportunities for potential threats to fester; for example, 

armed groups fill a security and governance void and become stronger until 

they jeopardize the host-nation government and pose a real threat to U.S. 

interests. By improving the legitimacy of the United States and its partners, 

the recommendations above provide a path for improving long-term national security and international stability. 

16 Andrea Shalal and Emily Stephenson, “U.S. Establishes Policy for Exports of Armed Drones,” 

Reuters, 18 February 2015, http://www.reuters.com/article/2015/02/18/us-usa-drones-exports

-idUSKBN0LL21720150218.

17 “U.S. Export Policy for Military Unmanned Aerial Systems” (fact sheet, U.S. Department of 

State, 17 February 2015), http://www.state.gov/r/pa/prs/ps/2015/02/237541.htm.

18 For more on these issues, see Anthony N. Celso and Robert Nalbandov, ed., The Crisis of the 

African State: Globalization, Tribalism, and Jihadism in the Twenty-First Century (Quantico, VA: 

Marine Corps University Press, 2016).

Conclusions and Recommendations | 207

APPENDIX A

209

TITLE 10, TITLE 50, AND OVERSIGHT

As is the case with international law, U.S. domestic law regulates when 

and how the United States may use force.1 Both Congress and the executive branch play important roles in these processes, and this appendix concentrates on aspects of those roles that are embodied in Titles 10 and 50 of 

the U.S. Code, with a focus on oversight. This appendix aims to clarify the 

interplay of the two titles in drone strike (and other CT) operations and 

to provide background on the military preference policy. In doing this, it 

begins a discussion of covert actions that is continued in the next appendix.

Titles 10 and 50 are often misconstrued in the debate over drone strikes, 

where “Title 10” is used as shorthand for the military and its actions, and 

“Title 50” for the intelligence agencies and their actions.2 In fact, the dis1

 Several circumstances exist in which the use of force is permitted. The president has an implicit 

duty under Article II of the U.S. Constitution as commander in chief to defend the nation. In 

addition, Congress may declare war or otherwise authorize the use of force through legislation. 

Finally, the War Powers Resolution allows the president to authorize the use of force based on 

immediate need and without congressional approval for 60 days; after which time, if Congress 

has not acted, the president has another 30 days to withdraw U.S. forces. 

2

 For example, Andru E. Wall, “Demystifying the Title 10-Title 50 Debate: Distinguishing Military Operations, Intelligence Activities, and Covert Action,” Harvard Law School National Security Journal 3, no. 1 (December 2011), http://harvardnsj.org/2011/12/demystifying-the-title

-10-title-50-debate-distinguishing-military-operations-intelligence-activities-covert-action/; and 

Josh Kuyers, “CIA or DOD: Clarifying the Legal Framework Applicable to the Drone Authority 

Debate,” American University Washington College of Law National Security Law Brief, 4 April 

2013.
210 | Appendix A

tinction is not so clear-cut—the military can act under Title 50, as is detailed 

below—but oversight mechanisms constitute an important difference.

Title 10 provides for the structure and general powers of the armed 

forces, as well as the oversight mechanisms for most military activities. In 

particular, actions such as traditional military activities (TMA) fall under 

Title 10, and as such are overseen by the Senate and House Armed Services 

Committees. TMA is not defined in the law, although Congress has provided some nonstatutory guidance (see Appendix B).

Title 50 governs—among other things—intelligence collection, covert 

actions (as defined in the title), and the oversight of these activities. It also 

governs the structure and some functions of the CIA and aspects of the intelligence community more broadly.

Title 50 defines a covert action as “. . . an activity or activities of the 

United States Government to influence political, economic, or military 

conditions abroad, where it is intended that the role of the United States 

Government will not be apparent or acknowledged publicly . . .” while exempting TMA, traditional diplomatic activity, intelligence collection, and 

several other types of activities.3 Title 50 specifies that the president may 

authorize covert actions by means of written findings. Although the CIA 

is considered the traditional agency for carrying out covert actions, Title 50 

makes reference to the possibility of other departments or agencies carrying out the actions so, in particular, DOD may carry out covert actions (as 

defined in Title 50) such as covert drone strikes, and thus act under Title 

50.4 Whether DOD carries out “Title 50 covert” actions in practice is a separate issue not addressed here, although this would have implications for 

the military preference policy.

Title 50 stipulates congressional oversight for covert actions, requiring “the Director of National Intelligence and the heads of all departments, 

agencies, and entities of the United States Government involved in a covert 

3

 Title 50, U.S. Code, § 3093 (e). This definition differs from DOD’s doctrinal definition of a 

covert action, which is discussed further in Appendix B.

4

 See United States Intelligence Activities, Executive Order No. 12333, 46 Federal Register 59941, 

3 Code of Federal Regulations (1981), Part 1, 1.8(e). 
Title 10, Title 50, and Oversight | 211

action . . . [to] keep the congressional intelligence committees fully and 

currently informed of all covert action,” although in exceptional circumstances, activities can be temporarily revealed only to the so-called “Gang 

of Eight” (i.e., the majority and minority leaders of the Senate, the Speaker 

and minority leader of the House, and the chairmen and ranking minority 

members of the House and Senate Intelligence Committees).5 Senate Intelligence Committee Chairwoman Feinstein has put forth that her committee 

“receive[s] notification with key details shortly after every [drone] strike, 

and . . . [holds] monthly in-depth oversight meetings” that look rigorously 

at the drone program.6 Issues surrounding covert actions are discussed at 

greater length in Appendix B.

One significant issue of interest here is that the oversight and accountability mechanisms in Title 50 are triggered by reasonably subjective criteria for the DOD. Indeed, as noted above, TMA is not defined in U.S. law, 

yet any activity classified as TMA is exempt from the requirements for 

covert activities of a presidential finding and oversight by the House Intelligence Committee or the Senate Select Committee on Intelligence. Similarly, there can be overlap between intelligence collection (which falls under 

Title 50 and is overseen by the intelligence committees) and TMA, such 

as operational preparation of the environment (OPE), which can include, 

for example, significant intelligence collection from a site in advance of 

an attack but falls under Title 10. DOD’s interpretations of TMA and OPE 

have been described as “broad.”7

As it stands, this ambiguity leaves the DOD open to the perception that 

it is (or has the potential of) circumventing Title 50 oversight mechanisms 

by classifying its activities as TMA.8 Indeed, broad interpretations of these 

5

 Title 50, U.S. Code, § 3093 (b). 

6

 Senator Dianne Feinstein, “Letters: Senator Feinstein on Drone Strikes,” Los Angeles Times, 

17 May 2012, http://articles.latimes.com/2012/may/17/opinion/la-le-0517-thursday-feinstein

-drones-20120517.

7

 Eric Schmitt, “Clash Foreseen Between CIA and Pentagon,” New York Times, 10 May 2006, 

http://www.nytimes.com/2006/05/10/washington/10cambone.html?pagewanted=all.

8

 See, for example, Erwin, Covert Action.
missions would circumvent the significant requirement of a presidential 

finding, but this perception also may presuppose that Title 10 oversight by 

the House and Senate Armed Services Committees is somehow preferable 

to DOD in certain cases over Title 50 oversight by the intelligence committees. In fact, pundits have made various further claims that the oversight 

of the intelligence committees or armed services committees is qualitatively superior to that of the other. The basis for either assertion has not 

been satisfactorily clarified in any writings to date. Indeed, the congressional oversight process with respect to such issues as drone strikes is poorly 

understood by the American public for, although public hearings can get 

substantial media coverage, the reporting requirements and other means of 

oversight employed by Congress and its committees are not well explained 

by Congress. Comparing the oversight of these committees would be a 

worthwhile venture, but would be best served as part of a more thorough 

public explanation of the oversight process. In particular, such a comparison would have important ramifications for the military preference policy.

In any case, if the government were to describe how it defines TMA 

and OPE and how it distinguishes them from Title 50 activities, that would 

increase the transparency (and perhaps the consistency) of the oversight 

process, although this might cost DOD some of the flexibility provided by 

the existing ambiguity.

One relevant practice that ties into all of these issues is that of one 

government agency acting in a supporting role for an operation led by 

another agency. Thus, in addition to DOD acting under Title 10 or Title 50 

and OGAs acting under Title 50, DOD may provide forces in support of an 

operation under the direction and authority of an OGA, and similarly an 

OGA may act in support of a DOD operation. These practices may be practical and aid tactical and operational effectiveness, however, as with the 

lack of a definition for TMA, they hinder transparency and could leave the 

perception that the agencies involved are skirting some oversight mechanisms. This topic is discussed further in the chapter on legitimacy issues.

212 | Appendix A
APPENDIX B

213

COVERT ACTIONS

This appendix provides a more in-depth discussion of covert actions 

within U.S. domestic law. It aims to articulate and clarify some of the issues 

related to covert actions, and presents further considerations with regard to 

the military preference policy, particularly when that policy includes a preference for strikes to be carried out under Title 10. If unqualified, “covert” 

will be taken to mean an action by a government that, at the time the action 

is carried out, is not intended to be acknowledged by the government.

Covert actions have a long history of being carried out by nations for 

military, national security, and diplomatic ends. Espionage serves as a 

primary example, and is considered legal under international law as a form 

of self-defense. Espionage, as a general practice, is not particularly controversial, perhaps because there is a tacit understanding that “everyone does 

it” and it is not understood to be particularly violent. Covert military (or 

paramilitary) actions do not share these comforts, although they are legally 

justified as being derived from customary international law.

It has been widely reported that the United States has carried out 

covert drone strikes in Pakistan, with the conventional wisdom that they 

were performed with secrecy so as to allow the Pakistani government 

the ability to plausibly deny that the strikes are taking place (although 

the Pakistani government has in recent years acknowledged them via 
214 | Appendix B

condemnations).1 Furthermore, various media outlets have asserted that 

the CIA must perform these operations, with the implication that DOD 

does not carry out covert drone strikes, although Appendix A discusses 

how DOD is not legally barred from conducting such activities.2

Noncommittal and conflicting statements have come out of high levels 

of the U.S. government on the subject of the U.S. military carrying out 

covert actions. In his 2007 confirmation hearing, Undersecretary of Defense 

for Intelligence and current Director of National Intelligence Lieutenant 

General James R. Clapper Jr. testified that Title 50 covert activities “are 

normally not conducted . . . by uniformed military forces,” tacitly acknowledging that DOD forces conduct covert actions.3

 However, in his written 

testimony for the same hearing, Clapper said it was his understanding that 

“military forces are not conducting ‘covert action’,” but are limiting themselves to clandestine action.4

 He went on to explain that he had been referring to the passive/active distinction given below.

The notion that only the CIA may perform covert actions or that DOD 

is barred from performing them is indeed pervasive, not only within the 

media but also within the defense community and the government.5 As 

noted above, DOD not only appears to be permitted to carry out covert 

action under U.S. law, but its own doctrine makes reference to conducting such actions. This provides evidence that U.S. policy with respect to 

covert actions is unclear, both for the general public and for those within 

the defense community.

1

 For more on the Pakistani government’s stance, see Agence France-Presse, “High Cost of Technology: Pakistan Condemns North Waziristan Drone Strike,” Express Tribune, 26 December 

2013, http://tribune.com.pk/story/650880/pakistan-condemns-north-waziristan-drone-strike/.

2

 This assertion can be seen in, for example, Micah Zenko, Transferring CIA Drone Strikes to the 

Pentagon, Policy Innovation Memorandum No. 31 (New York: Council on Foreign Relations, 

April 2013), http://www.cfr.org/drones/transferring-cia-drone-strikes-pentagon/p30434.

3

 Erwin, Covert Action. Emphasis added.

4

 Ibid.

5

 See, for example, Senator Clarence W. Nelson’s more recent questioning of Gen Clapper. Clarence W. Nelson, “Testimony on Current and Future Worldwide Threats to the National Security 

of the United States” (testimony, U.S. Senate, Committee on Armed Services, 11 February 2014), 

5–8, http://www.armed-services.senate.gov/imo/media/doc/14-07%20-%202-11-14.pdf.
Covert Actions | 215

Contributing to the confusion is the lack of consensus on the meaning 

of the word covert. Covert action is defined in Title 50; a covert operation is 

defined in military doctrine (the definitions are similar but not identical); and the term covert is used in even different ways colloquially and 

in General Clapper’s Senate testimony, where he ascribes to the word an 

active/passive meaning. These usages are given in Appendix table 1, as is 

the doctrinal definition of clandestine.

The table shows that the “passive/active” alternate DOD characterization by General Clapper is notably different from the other usages (and 

perhaps would be more straightforward for operators and lawyers to work 

with).

Appendix table 1. Definitions of covert

Usage Definition References

U.S. law (Title 50)

. . . [T]he term covert action means an activity or activities of the United States Government to influence political, economic, or military conditions abroad, where it is 

intended that the role of the United States Government 

will not be apparent or acknowledged publicly, but does 

not include

1. Activities the primary purpose of which is to 

acquire intelligence, traditional counterintelligence 

activities, traditional activities to improve or 

maintain the operational security of United States 

Government programs, or administrative activities;

2. Traditional diplomatic or military activities or 

routine support to such activities;

3. Traditional law enforcement activities conducted 

by United States Government law enforcement 

agencies or routine support to such activities; or 

activities to provide routine support to the overt 

activities (other than activities described in paragraph (1), (2), or (3)) of other United States Government agencies abroad. [Emphasis added.]

Title 50, U.S. Code, 

Section 3093
s6

a7d8

The colloquial usage of the word “covert” lacks the subtleties of how 

the term is used in law and doctrine. In particular, note that the DOD and 

Title 50 definitions allow for the disclosure of a covert action after the 

fact, as long as there is the intent for nonattribution at the time the action 

is done.9 This allowed, for example, then-CIA Director Leon Panetta to 

6

 Department of Defense Dictionary of Military; and Joint Special Operations.

7

 Erwin, Covert Action.

8

 For example, Merriam-Webster, http://www.merriam-webster.com/dictionary/covert.

9

 Journalists and scholars sometimes indicate that a covert action may not be acknowledged by the 

government after the fact. See, for example, Erwin, Covert Action; and Safire, “Covert Operation, 

or Clandestine?.” This does not appear to be supported by either Title 50 or doctrine. Moreover, 

material is often classified for a specified window of time, such as several decades.

216 | Appendix B

DOD doctrine

Definition of covert operation: an operation that is so 

planned and executed as to conceal the identity of or 

permit plausible denial by the sponsor.

Note also the definition of a clandestine operation: an 

operation sponsored or conducted by governmental departments or agencies in such a way as to assure secrecy 

or concealment. A clandestine operation differs from a 

covert operation in that emphasis is placed on concealment of the operation rather than on concealment of the 

identity of the sponsor. In special operations, an activity 

may be both covert and clandestine and may focus 

equally on operational considerations and intelligencerelated activities.

DOD Joint 

Publications6

Alternate DOD 

characterization

Although testifying that the term clandestine activities

is not defined by statute, [General Clapper] characterized such activity as consisting of those actions that are 

conducted in secret, but which constitute “passive” 

intelligence information gathering. By contrast, covert 

action, he suggested, is “active,” in that its aim is to elicit 

change in the political, economic, military, or diplomatic 

behavior of a target. [Emphasis added.]

Clapper testimony7

Colloquial usage Any secret action Standard dictionaries8
describe the raid that killed Osama bin Laden as a “covert operation”10

when he and President Obama presented it to the American public after 

the attack.11 Conversely, an activity would not be considered covert if it is 

intended to be acknowledged—even though there are no statutory limits 

on when such acknowledgement must take place. This means that, at least 

in theory, an operation could go unacknowledged by the U.S. government 

for years after it took place, and it could still be considered noncovert and 

need not fall under Title 50. Thus, if one hypothetically wanted to “game 

the system,” one would find a weak line dividing the covert from the 

noncovert.

In the remainder of this appendix, “Title 50 covert” refers to being 

covert under Title 50, and “doctrinal covert” refers to being covert under 

DOD doctrine. Recall that covert, if unqualified, refers here to a government action that is intended to be unacknowledged.

The “Title 50 covert” and “doctrinal covert” definitions are subtly distinct. Indeed, “doctrinal covert” actions are DOD actions, whereas the “Title 

10 “CIA Chief Panetta.”

11 Ibid.; and Helene Cooper, “Obama Announces Killing of Osama bin Laden,” The Lede 

(blog), New York Times, 1 May 2011.

Covert Actions | 217

Covert action

(U.S. law)

Covert operation

(DOD doctrine)

Under 

Title 50

Under 

Title 10

Under 

Title 50

OGA actions the government 

does not intend to acknowledge

(e.g., economic, diplomatic, etc.)

TMA the government 

does not intend to acknowledge

Appendix figure 1. Relationship between legal and doctrinal definitions of covert
50 covert” actions can be broader, potentially including political, economic, 

diplomatic, and other activities as well. In addition, the definition of “doctrinal covert” has none of the exemptions contained in the definition of “Title 

50 covert,” such as the exemption for TMA. This means that an operation 

could theoretically be considered TMA under U.S. law—and therefore not 

“Title 50 covert”—but simultaneously be “doctrinal covert” (see Appendix 

figure 1). Thus the military can carry out covert—i.e., unacknowledged—

actions under Title 50 and under Title 10, based on whether the legal or 

doctrinal definition of covert is used.

As noted above, the definition of a “Title 50 covert” action exempts 

TMA, but does not define TMA. A former acting CIA general council noted 

that coming up with a statutory definition of TMA has been “exceedingly 

difficult.”12 Nonetheless, in the early 1990s, the House of Representatives 

expressed the following intent for the term’s meaning:

It is the intent . . . that “traditional military activities” include activities by military personnel under the direction and control of a 

United States military commander (whether or not the U.S. sponsorship of such activities is apparent or later to be acknowledged) 

preceding and related to hostilities which are either anticipated 

(meaning approval has been given by the National Command 

Authorities for the activities and for operational planning for hostilities) to involve U.S. military forces, or where such hostilities involving United States military forces are ongoing, and, where the 

fact of the U.S. role in the overall operation is apparent or to be acknowledged publicly. [This is intended] . . . to draw a line between 

activities that are and are not under the direction and control of 

the military commander. Activities that are not under the direction 

12 Matthew C. Dahl, “Event Summary: The bin Laden Operation–The Legal Framework” 

(American Bar Association, Committee on Law National Security, 2013), http://www.ameri

canbar.org/content/dam/aba/administrative/litigation/materials/sac_2012/50-7_nat_sec_bin

_laden_operation.authcheckdam.pdf.

218 | Appendix B
and control of a military commander should not be considered as 

“traditional military activities.”13

Covert actions can be controversial. While there is nothing intrinsically 

illegal about them—from both the domestic and international legal perspectives—the body of international law governing them is quite thin. 

Moreover, such a level of secrecy might indicate the potential for violating 

legal principles, such as state sovereignty and IHRL, and the public is often 

uncomfortable with nations executing such secret actions.

Nonetheless, covert action can be a highly useful tool for nations in 

that, if it is successful, it might allow a nation to achieve a mission without 

negative diplomatic or political consequences. Moreover, the denial of a 

covert action can be a useful diplomatic tool even if the action is known to 

the other country. One legal scholar pointed out that

It is less provocative and less disruptive to diplomatic relations 

not to acknowledge an operation even if the country adversely affected by it is well aware of one’s involvement. The target country, 

either in the interests of good relations or because it cannot effectively prevent it, may ignore the covert action; it is much harder for 

it to do so if the government conducting it publicly acknowledges 

what it is doing.14

If revealed, however, a covert action has the potential to inflame tensions 

between the nation executing the action and the nation against which the 

action took place (or potentially the international community as a whole); 

this was seen between the United States and Pakistan in the aftermath of 

the Osama bin Laden raid.

A component of the military preference might be that drone strike operations be carried out under Title 10—in other words, that the strikes not 

13 David K. McCurdy, Conference Report on H. R. 1455 (Washington, DC: U.S. House of Representatives, 25 July 1991), H5905, http://www.fas.org/irp/congress/1991_cr/h910725-ia.htm.

14 Goldsmith, “Fire When Ready.” 

Covert Actions | 219
be carried out covertly as defined by Title 50. The alternatives for the military carrying out a “Title 50 covert” drone strike are to:

• not act;

• carry out the strike and acknowledge it;

• achieve the same ends through some other course of action;

• carry out the strike in a clandestine manner; or

• carry out the strike as a doctrinal-covert TMA.

The first option—not acting—carries with it the risk of not achieving the 

mission, or in this situation, leaving an individual deemed a threat to U.S. 

security untouched. The second option—carrying out a strike and acknowledging it—risks heightening international tensions and perhaps invoking military conflict, even taking for granted that the United States is 

implementing a sound framework to justify the strikes it carries out. Note 

that the risk of tensions or conflict would be more severe if even a single 

acknowledged strike were considered improper or in violation of international law.

The third option—achieving the same ends through another course of 

action—might carry a high monetary cost or risk to U.S. forces, if such an 

option would even be possible. For example, alternatives to a covert drone 

strike could include inserting a SOF team into a hostile area to capture or 

kill the targeted individual, or launching a full-scale assault into the area 

to capture or kill multiple targeted individuals. However, such an operation might not be any more palatable than a drone strike. Note also that, if 

any targets are captured, the U.S. government must then hold and try them 

either domestically or abroad—a task that can be difficult, as seen during 

the recent conflicts in Iraq and Afghanistan.

The fourth option raises an important question: to what extent does 

a covert drone strike differ from a clandestine one? Furthermore, to what 

extent can a drone strike be covert or clandestine at all? Starting with the 

220 | Appendix B
second question, clearly evidence from a drone strike—which has reportedly even included weapon debris with U.S. military markings—cannot 

be hidden from the locals in the area of the attack.15 Thus the government 

may not be able to carry out truly clandestine drone strikes. Furthermore, 

while the United States can always refuse to acknowledge a strike—if even 

just for some amount of diplomatic cover, as described in the quotation 

above—given that few other countries are known to operate armed drones, 

the United States may not be able to carry out drone strikes with much true 

plausible deniability.

However, a strike can potentially be unknown to the international 

community or the broader public in the country where the strike took place 

(i.e., clandestine on a “large scale”) if it is done in a very remote location, 

or if it is not publicized by the government of that country, the media, or 

social media. Given the current state of global drone operations noted 

above, a strike could probably only remain unacknowledged to a broader 

community if it was unknown to that community. Note that this clandestine prerequisite for covert action will only hold as long as other countries 

largely refrain from using armed drones.

Returning to the first question, it is not clear that any practical differences exist between military drone strikes that are clandestine and military strikes that are covert (as well as clandestine), aside from internal 

U.S. government processes, such as the differing oversight and approval 

requirements for “Title 50 covert” actions; military and OGA operators 

and policymakers would be better positioned to speak to this topic. Again, 

however, this situation will remain only until other countries begin or increase armed drone operations.

This discussion highlights the fact that the full implications of the military preference, if it were to include a Title 10 preference, may not be realized for a number of years, if and when the use of armed drones becomes 

15 For more on debris with U.S. markings, see Greg Miller, “Obama’s New Drone Policy Leaves 

Room for CIA Role,” Washington Post, 25 May 2013, https://www.washingtonpost.com/world

/national-security/obamas-new-drone-policy-has-cause-for-concern/2013/05/25/0daad8be-c480

-11e2-914f-a7aba60512a7_story.html.

Covert Actions | 221
more prevalent throughout the world. At that point, nonclandestine covert 

drone strikes would be more viable, so the military preference policy with 

a Title 10 preference would be significantly more restrictive than the policy 

would be without a Title 10 preference.

The final option is to accomplish the mission that would have involved 

a “Title 50 covert” drone strike with a “doctrinal covert” strike that is classified as TMA, if possible. Military operators and lawyers could speak to 

what extent this would represent a tactical or operational restriction, based 

on their guidelines for what constitutes TMA and what types of situations 

in which drone strikes are carried out could not be classified as such.

In the current state of the world (as opposed to when nonclandestine 

covert strikes may be possible), if indeed a restriction to TMA or clandestine operations instead of “Title 50 covert” ones makes little operational 

difference, then there is less distinction between the military preference 

policy with and without a Title 10 preference. Otherwise, if the military 

preference were implemented with a Title 10 preference, the United States 

would have to navigate the alternatives to “Title 50 covert” drone strikes, 

and potentially incur the risk of a significant number of the negative consequences outlined.

222 | Appendix B
INDEX

223

Abu Ghraib, Iraq, 189

Afghanistan, 3–4, 9, 11–13, 15–18, 

21–23, 27–28, 31–33, 38, 41, 75, 84, 

105, 109–10, 112, 119–20, 121, 122, 

124–25, 127, 140–49, 151–54, 157–61, 

166, 171, 184, 186–87, 189–96, 198, 

200, 203–6, 220

after action report (AAR), 21, 22, 125, 

141, 164, 206

aircraft, xi, 1, 191

Bell OH-58 Kiowa Warrior helicopter, 142, 144

Lockheed AC-130 gunship, 141

McDonnell Douglas F/A-18 Hornet 

jetfighter, 147

al-Awlaki, Anwar, 53, 56

al-Qaeda in the Arabian Peninsula 

(AQAP), 53fn15, 54

al-Qaeda in the Islamic Maghreb

(AQIM), 178

air-to-surface missile (ASM), 21fn2

Amnesty International, 158, 181fn16

analysis framework, 37–101, 106, 116, 

120, 126–27, 164, 220

armed conflict, xii, 2, 6fn1, 67–68, 72–73, 

77–78, 80, 97, 99, 172–73, 189, 200, 

203–4, 206fn15

conduct of hostilities, 189–90, 199, 

204–7

detention, 38, 189, 190fn2

See Law of Armed Conflict (LOAC)

Armed Services Committees, House 

and Senate, 55, 61, 80, 96, 210, 212

assessment, 13, 15–19, 22, 23, 27–31, 59, 

118, 153–54, 192, 207

See battle damage assessment

Bold indicates page with illustration.
Authorization for the Use of Military 

Force (AUMF), 39, 67fn4, 156

Bala Baluk, Farah Province, Afghanistan, 193

battle damage assessment (BDA), 13, 

18, 21, 22, 58–60, 153

bin Laden, Osama, 48, 81–82, 217, 

218fn12, 219

Blair, Dennis C. (Adm, USN), 63,

 64fn11

Boko Haram, 171, 176, 197, 207

See Nigeria

Brennan, John O., 4, 11, 60fn4, 70–71, 86

See Central Intelligence Agency

building partner capacity (BPC), 

178–79, 181fn17

Bureau of Investigative Journalism 

(BIJ), 7, 8–10, 11, 24–25, 26–27, 

133–35, 136, 137 139

Bush, George W., 87

casualty estimates, 5–19, 83, 195

Center for Army Lessons Learned 

(CALL), 149

Center for Civilians in Conflict,

 149fn19, 158

Central Intelligence Agency (CIA),

 1fn1, 48

Chiarelli, Peter W. (LtGen, USA), 22

civilian casualties (CIVCAS), 1–34, 108, 

121, 123, 138–39, 140fn8, 192–96, 

204–5

civilian casualty lifecycle, 21–22

Civilian Casualty Mitigation Report, U.S. 

Army, 153

Civilian Casualty Mitigation Team, 204

civilian casualties (CIVCAS), 1–34, 108, 

121, 123, 138–39, 140fn8, 192–96, 

204–5

civilians killed (CIV K), 25, 134, 138

civilian protection, xi–xii, 162, 165, 167, 

188, 190, 192, 194, 198, 207

Clapper, James R., Jr. (LtGen, USAF), 

214–16

Colombia, South America, 180–84, 197, 

200, 201fn4, 202, 206

See Plan Colombia

Commander, International Security Assistance Force (COMISAF), 22–23, 

112, 148, 193

consequence management, 28–29, 110, 

142, 149fn19, 152

Conflict Victims Support Project, 

28–29

legal culpability, 28, 152

restitution, 28–29

Conway, James T. (Gen, USMC), 15

Copenhagen Process, 206–7

See conduct of hostilities

counterinsurgency (COIN), 112, 189–94

counterterrorism (CT), xi–xii, 2–4, 6fn1, 

13, 18fn15, 27, 29fn6, 32fn2, 39, 

40–42, 44, 46, 55, 65–68, 71–72, 78, 

83, 87, 89, 91–92, 105–68, 171, 178, 

186, 189–90, 194–96, 204–5, 209

224 | Index
Creech Air Force Base, Indian Springs, 

NV, 144

defragmentation, 159–60, 166

Deh Bala District, Nangarhar Province, 

Afghanistan, 13–14, 17

Department of Defense (DOD), 46–48, 

59–63, 69–70, 75–77, 80–82, 96, 

166–67, 185, 192, 202, 204, 210–12, 

214–17

See Foreign Military Sales program, 

Title 10, and Title 50

Department of Justice (DOJ), 52–53, 60, 

72–73

directly participate in hostilities (DPH), 

6fn2, 68

Director of National Intelligence (DNI), 

63, 210, 214

doctrine, 21, 32, 47, 48fn5, 59, 95, 

113fn19, 125, 146, 160, 162, 173, 193, 

202fn7, 203–4, 214–17

double tapping, 2

drone campaign, U.S., 6fn1, 7–8, 13, 

17–18, 24–30, 32–33, 101

clandestine, 48, 87, 110, 214–16, 

220–22

collateral damage, 2, 4, 20, 38, 52, 

58, 60–62, 68fn9, 71, 82–85, 90, 93, 

97, 148, 181, 185, 190, 192–93, 195. 

See legitimacy

covert, 47–49, 56, 61–62, 75, 79, 81, 

87, 96fn1, 110, 205, 209–11, 213–22. 

See Title 10, Title 50

signature strikes, 2, 40, 55, 59, 

76–79, 189

targeting practices, 52, 54, 63, 68. 

See international humanitarian law, 

international human rights law

drone court, 46, 49–52, 56

FISA-like drone court, 50, 52, 56, 60, 

62, 64, 81, 85, 88, 96–98

Israeli-style drone court, 51, 56, 60, 

62, 64, 80–85, 88, 98–100

drones

AGM-114 Hellfire air-to-surface

 missile (ASM), 21fn2, 132, 142

General Atomics MQ-1 Predator, xi, 

16, 141–42, 144–46

General Atomics MQ-9 Reaper 

missile, xi

Patriot missile, 147fn15

Tomahawk land attack missile 

(TLAM), 42

enhanced interrogation techniques, 

189–90

escalation of force (EOF), 22, 113fn19, 

161–62, 192–93

ethical considerations, 2, 84–85, 88, 101

Federal Bureau of Investigation (FBI), 

50, 81

Federally Administered Tribal Areas 

(FATA), 9, 11

See Pakistan

Feinstein, Dianne, 11, 50, 211

Index | 225
Foreign Intelligence Surveillance Act 

(FISA), 50

See drone courts

Foreign Military Sales (FMS) program, 

202

framework, 37–103, 106, 116, 120, 

126–27, 156, 163–64, 220

Fuerzas Armadas Revolutionarias de Colombia (FARC), 181fn15, 182

Gang of Eight, 211

See Feinstein, Diane

Gates, Robert M., 51

Geneva Conventions, xi, 2, 6fn2, 17, 

66fn1, 153, 175fn1, 189fn1

See international humanitarian law, 

international human rights law

Grassley, Charles E., 50

Guantanamo Bay Naval Base, Cuba, 38, 

189–90

guilt by association, 16, 145

Hamas, 184–85

Ham, Carter F. (Gen, USA), 180

Heinrich, Martin T., 53

Home Guards Program, 181

See Colombia

host nations, 109

human intelligence (HUMINT), 18, 154

human rights, 71–72, 158, 163, 176, 

179–82

See legitimacy

Human Rights Watch, 158

Hurlburt Field, FL, 144

improvised explosive device (IED), 16, 

110

insurgent math, 108–9

See McChrystal, Stanley A.

Intelligence Authorization Act, 2014, 53

intelligence collection, 1, 47, 54–56, 62, 

91, 210–11

See Title 50

Intelligence Committees, House and 

Senate, 11, 61, 80, 96, 211–12

See oversight

Intelligence Community (IC), 151, 159, 

210

International Armed Conflict (IAC), 67, 

74

International Committee of the Red 

Cross (ICRC), 67, 125, 167

international humanitarian law (IHL), 2, 

6, 17fn12, 68, 73–76, 79, 84, 95, 133, 

145, 153–54, 160–62, 166–67, 175, 

180, 186–91, 194, 198–99, 201–7

See legitimacy

international human rights law (IHRL), 

68–69, 72–73, 219

See targeting standards

International Security Assistance Force 

(ISAF), 7fn3, 15, 22–23, 110, 112, 

142, 145, 148, 152, 193–94, 204

imminent, 3, 31, 55–56, 69, 72–73, 76, 

78–79, 97, 105, 142, 146, 155, 163, 

194

226 | Index
Iraq, 33, 107, 110, 161–62, 165, 171, 

175–76, 183–84, 189–94, 197–207

See Islamic State of Iraq and the 

Levant

irregular enemy, 12–13, 15

Islamic State of Iraq and the Levant 

(ISIL), 107, 111, 162, 171, 176–77, 

194, 197, 201, 207

Israel-Palestine conflict, 184

J7 Joint Force Development, 32–33, 173, 

186fn28

Johnson, Jeh C., 69

Joint Civilian Casualty Study (JCCS), 21, 

148, 153

Joint Lessons Learned Information 

System (JLLIS), 185fn27

Joint Staff Civilian Casualties Working 

Group, 33, 193, 204

joint targeting cycle, 59–60

Karzai 12 rules, 193

Karzai, Hamid, 193

Ki-moon, Ban, 185

King, Angus S., 50

Koh, Harold, 69

law of armed conflict (LOAC), 71–72, 

74, 166, 175, 189

Leahy, Patrick J., 50, 201fn4

legal considerations or issues, 2, 41, 

71–77, 203

legitimacy, 65–88, 171–207

accountability, 39, 45, 49, 51, 62–63, 

77, 82–84, 96, 98–99, 101, 180–81, 

202fn7, 203–5, 211. See drone courts, 

international humanitarian law

domestic, 172, 182

ethical standing, 2, 65, 77, 84–85, 

87–88, 90, 101, 166–67, 180, 203

international, 172, 197

supercompliance, 161, 167, 186–87, 

198–99, 206

transparency, 7–8, 32, 39–40, 42, 45, 

49, 52–53, 63–65, 76–83, 86–87, 90, 

95–101, 163, 166, 197, 205–6, 212. 

See drone courts, oversight

lethal force, xi, 69–70, 87fn58, 105–11, 

115, 117–18, 133, 137, 151, 153, 

155–56, 159–60, 162, 164, 167, 204

See counterterrorism operations

Libya, Africa, 23, 107fn6, 161, 165, 171

See Operation Unified Protector

Mali, Africa, 171, 176–80, 197, 207

See Tuareg

McChrystal, Stanley A. (Gen, USA), 109, 

157, 193fn8

McKiernan, David D. (Gen, USA), 15, 

112

McNeill, Dan K. (Gen, USA), 112

military preference policy, 46–49, 56, 

60–63, 75–76, 79–82, 85, 87–88, 

95–96, 101, 209–10, 212–13, 219, 

221–22

See Title 10, Title 50

Index | 227
military principles

distinction, 68, 107fn5, 117, 146, 

186, 222

necessity, 56, 68, 73

proportionality, 68, 84, 186, 188

misidentification, 12–13, 15–19

See civilian casualties

mission effectiveness or success, 32, 

105–13, 114–49, 156, 163–66, 186, 

194, 205

Mosul, Iraq, 177

Multinational Force-Iraq (MNF-I), 

192fn7, 193

national policy decisions, xi, 156, 186

National Security Agency (NSA), 50

National Security Council, 151, 159

national security practices, xi

nation containing the target (NCT), 

92–94

net effectiveness, 40–41, 45, 57, 89–95

New America Foundation (NAF), 

7–10, 11, 24–25, 26–27, 128, 129–31, 

133

Nigeria, Africa, 171, 176, 197, 207

See Boko Haram

nongovernmental organization

(NGO), 5, 29, 125, 149fn19, 163, 

167, 192

Noninternational Armed Conflict 

(NIAC), 67–68, 74

North Atlantic Treaty Organization 

(NATO), 23, 161

Obama, Barack H., 4, 7, 38, 40–41, 46, 

48–49, 51–52, 55, 60, 63, 68–70, 89, 

95, 99fn8, 160, 163, 198–99, 217

See Presidential Policy Guidance

Office of the Secretary of Defense 

(OSD), 162, 167

operational military effectiveness 

(OME), 44–45, 57, 62, 89fn3, 94

See framework, policy options

operational preparation of the environment (OPE), 211–12

Operation Enduring Freedom (OEF), 

7fn3, 31–32, 38, 186

Operation Iraqi Freedom (OIF), 147fn15

Operation Unified Protector, 161, 165

See Libya

operational tempo, 116, 119, 128

operations

advise-and-assist, 181, 200

capture, 55–56, 69–70, 75, 85, 91, 

107, 155, 189, 191, 220

clandestine, 48, 87, 110, 214–16, 

220–22. See Title 10, Title 50

counterinsurgency, 112, 189–90, 

192–94

counternarcotics, 181. See Colombia

covert, 205, 213–22

counterterrorism, xi–xii, 2–4, 6fn1, 

13, 18fn15, 27, 32fn2, 39–42, 44, 46, 

55, 65–66, 68, 71–72, 78, 83, 87, 89, 

91–92, 171, 178, 186, 189–90, 194–96, 

204–5, 209. See Presidential Policy 

Guidance, Title 10, Title 50

228 | Index
doctrinal covert, 217–18, 220, 222

espionage, 213

lethal force, 106–11, 151

other government agency (OGA), 31, 

46–48, 61–62, 74–77, 79–82, 96, 101, 

151, 160, 162, 167, 212, 217, 221

See military preference, Title 50

oversight, 28, 32, 42, 46, 49–52, 56, 58, 

61–62, 80–82, 96–98, 151, 155, 160, 

165fn2, 166, 205, 209–12, 221

See drone courts, Title 10, Title 50

Pakistan, 1–36, 38, 72, 105, 107, 111–12, 

127–40, 153, 165, 171, 189, 194–96, 

198, 204–5, 213, 219

See counterterrorism operations

Panetta, Leon E., 81–82, 216–17

pattern of life, 1, 21, 62, 111, 122, 132

Philippines, 180–83, 197, 200–2, 206

Plan Colombia, 181–82, 184

platform precision, 20–23

policy options, 37–103, 176

positive identification (PID), 12, 147, 

191

Predator crew, 16, 141–42, 144–46

Presidential Policy Guidance (PPG), 

32fn2, 111–12, 114–15, 116–18, 

122–23, 124, 133–34, 136–40, 147, 

156, 160, 164, 166, 186

prisoner of war (POW), 75

processing, exploitation, and dissemination (PED), 145, 147

See Predator drone

protections, 75, 79, 95. See international 

humanitarian law

combatant privilege, 75

prisoner of war (POW), 75

quick reaction force (QRF), 14

recommendations, 30–35, 95–103,

 164–69, 197–207

rules of engagement (ROE), 21, 145–46, 

183, 193fn8, 203–4

Russia, 171–72

Saudi Arabia, 171, 188

See counterterrorism operations

security, xi–xii, 33, 41, 52, 54, 74, 86, 91, 

93–94, 106, 111, 164, 171–207, 213, 

215, 220

Sgrena, Giuliana, 192

See Iraq

Shewan, Farah Province, Afghanistan, 

14–15

signature strikes, 2, 40, 55, 59, 76–77, 79

Somalia, Africa, 38, 105, 171

See al-Qaeda, lethal force

Special Operations Forces (SOF), 16, 42, 

47, 81, 112, 149, 220

strategic military effectiveness (SME), 

44–45, 57, 62, 89fn3, 94

Tactical Directive, COMISAF,

21, 23, 112–13, 148–49, 

193

Index | 229
tactical military effectiveness (TME), 40, 

44–45, 57–62, 64, 84, 89–98

tactics, techniques, and procedures 

(TTP), 75, 147

Taliban, 3, 14–16, 110, 142–43, 194

targeting standards, 54, 72–74

target, types, 116–18, 128–29, 130–31, 

132, 145

Title 10, U.S. Code, 47–49, 55–56, 61, 75, 

79–81, 88, 96, 159, 209–13, 217–22

Title 50, U.S. Code, 47–48, 55–56, 61, 75, 

81, 96fn1, 159, 209–17, 218, 220

See covert operations

Title 50 covert, 217–18, 220–22

traditional military activity (TMA), 

47–48, 55, 75, 96fn1, 210–12, 217–20, 

222

Tuareg, 171, 176–78, 207

See Mali

Udall, Mark E., 53

Uniform Code of Military Justice 

(UCMJ), 203

United Nations (UN), 5, 7–10, 17, 23, 39, 

53, 66fn3, 66–67, 71–72, 77, 80, 83, 

98, 125, 158, 163, 167, 185, 188, 194

United Nations Security Council Resolution (UNSCR), 66fn3, 67fn4

unmanned aerial system (UAS), 72

unmanned aerial vehicles (UAV), xi, 1, 

33, 37–38, 141, 157–58

Uribe, Álvaro, 181–82

See Plan Colombia

Uruzgan Province, Afghanistan, 16, 

140–47

U.S. Africa Command (AFRICOM), 180

U.S. Agency for International Development (USAID), 28

U.S. Central Command (CENTCOM), 

15

U.S. military group (MILGROUP), 183

Warren, Elisabeth A., 106fn3

See counterterrorism operations

War Powers Resolution, 39, 209fn1

See Authorization for the Use of 

Military Force

Wyden, Ronald L., 53

Yemen, 3, 11, 18, 27, 29, 32fn2, 38, 54, 61, 

105, 107–8, 111–12, 127–40, 153, 158, 

165, 171, 188–89, 194–96, 204–5

See civilian casualties, counterterrorism operations

230 | Index