Who Watches the Drones? The Case for Independent Oversight
September 28, 2012
Concerns abound about the secretive nature of U.S. drone programs. Even among those who support the use of unmanned aerial vehicles in counterterrorism efforts, there are frequent calls for more transparency, greater accountability, and better oversight. Seldom, though, have commentators distinguished between these seemingly interchangeable words or described what any of them would look like in practice. In fact, increasing transparency is not the only path to accountability. The United States should instead aim for better oversight, modeling a review process on the United Kingdom’s Independent Reviewer of Terrorism Legislation. Doing so would be consistent with democratic ideals as well as with U.S. foreign policy objectives.
First, imagine that the government opted for full transparency in its drone programs. That would certainly make the government more accountable, with no special oversight system needed. Officials would release all the necessary information for citizens to assess the ethics of the programs themselves. This would include answers to such questions as: What crimes have targeted individuals allegedly committed? What threats do they pose? Who else might be harmed in a drone attack? How feasible are non-lethal options such as capture? In practice, though, full transparency is neither morally nor strategically ideal. For one, the government has a duty to protect its civilian informants, so there is risk in revealing the government’s sources of information. And potential targets could adjust their behaviors were capture proposals to be debated openly. That would make it all the more difficult for the government to use non-lethal options to round up suspects.
So how much transparency is enough? How can citizens know that the state is not overselling the sensitivity of details that it chooses to withhold? This central dilemma has not been resolved. Well-intentioned legal efforts undertaken by the ACLU and others to force openness about the drone program have only led the government to dig in its heels. It refuses to formally declassify even widely known facets of its operations, let alone release new details. The refusal is absurd on the surface, but it fits into an understandable strategy. Washington does not believe that limited declassifications would appease drone skeptics. As Jack Goldsmith, the Harvard law professor, has explained, Washington fears a slippery slope toward full transparency in the courts that might render one of its most potent counterterrorism weapons unusable.
Presumably to overcome the transparency tug of war, Congress was granted an oversight role in the drone program roughly two years ago. A number of elected representatives with access to sensitive information have thus been making judgments on behalf of the public regarding drones’ morality and effectiveness. But that does not seem to have satisfied anyone. Members of Congress are not ideal guardians: the public might (rightly) believe that representatives would hesitate to speak out about irresponsible drone use because they fear being accused of weakness on terrorism or because they have other political reasons for silence. A collective lack of expertise and busy schedules might also hinder members of Congress in making judgments.
At least one other country faced with a similar dilemma, though, has arrived at a different solution. The United Kingdom struggled with terrorism well before 9/11. Over the years, its government has had to develop a way to demonstrate to citizens that it is not abusing counterterrorism powers. The answer is simply an appointed individual who has both legal expertise and a reputation for principled behavior and political impartiality. The independent reviewer of terrorism legislation, or “wise old man,” as Benjamin Wittes and Paul Rosenzweig atLawfare have dubbed the figure, is paid at a daily rate and is not financially dependent on the state. In preparing reports for Parliament and the public about his opinions – sometimes critical– the reviewer is allowed access to any classified information he desires. But he is expected to keep the information secret. If the government impedes the reviewer’s access to information, he can raise a red flag. And if the government appoints a shill to the position, the credibility of the whole system evaporates. At election time, citizens can reward or punish their political leaders based on the reviewer’s pattern of assessments.
The independent reviewer model is palatable to governments because it enables accountability without necessarily increasing transparency (although greater transparency seems to have been a positive side effect in Britain). And the model has been successful enough that Australia has implemented it as well.
The United States can feasibly adopt the British model for its targeted killing programs. Drone warfare lends itself especially well to thorough monitoring, a fact that has been largely overlooked. The defining characteristic of unmanned aerial vehicles is that pilots execute their missions from a distance. Intermediaries, also out of harm’s way, can thus safely be allowed to witness strikes occasionally to ensure that actual operations and decision-making procedures match what they see in the official record. At the very least, intermediaries might review video evidence, as the UN special rapporteur on counterterrorism and human rights recently urged.
