To ensure accountability for use of lethal force, advocates look to Congress

So far, the Trump Administration has shown a willingness to accelerate the use of military force overseas, while continuing and sometimes expanding on the excessive secrecy of its predecessors.  As the number of civilian casualties from U.S. strikes grows at a shocking pace, government transparency and Congressional oversight may be the surest way to advance accountability in U.S. use of military force. During a town hall event hosted by OpenTheGovernment, experts agreed on the potential for improving oversight in the current climate, as Congress has begun to show a renewed interest in exercising its authority over military activity.

Alex Moorehead led the discussion with the findings of the recent report, Out of the Shadows, co-authored by the Columbia Law School’s Human Rights Clinic and the Sana’a Center for Strategic Studies. The report presents a new framework for transparency, which is used to evaluate U.S. practice between 2002-17 and can also be applied to other countries, and explains the different reasons why transparency is important. The report recommends several steps the U.S. government can take to increase transparency around the use of lethal force overseas, including by releasing more information to the public on the legal and policy frameworks guiding use of force, by naming civilians killed and releasing more information about specific strikes, improving oversight and accountability mechanisms, and disclosing more information on post-strike investigations.

Moorehead touched on the secret law that the executive branch uses to justify drone strikes and other national security-related operations, emphasizing the need for the Justice Department’s Office of Legal Counsel (OLC) to disclose specific legal opinions to the public. The OTG coalition has long pushed for greater disclosure of OLC opinions, a large body of secret law that has serious implications for the American public, but which they are not allowed to read.  

Steven Aftergood, of the Federation of American Scientists, underscored the U.S. military’s transparency compared to other militaries around the world, but pointed out that there remain islands of secrecy that are difficult for the public – or Congressional overseers – to penetrate. He listed special operations, cyber operations, and classified procurement as examples of areas of particular opacity, and noted that the White House opposed a provision in the House version of the FY2018 National Defense Authorization Act (NDAA) that would have required the Secretary of Defense to notify Congress of cyber operations and capabilities.

Given this pro-secrecy position at the White House, Aftergood and the Open Society Policy Center’s Wendy Patten proposed turning to Congress for help in advancing transparency and accountability.  Robust congressional oversight is needed, and Congress can also consider reporting requirements that provide more information to Congress and the public.  While the Department of Defense has pushed every year to include a new Freedom of Information Act (FOIA) exemption in the NDAA, OTG and our partners have so far been successful in keeping the harmful secrecy provision from becoming law.

Patten also stressed that in addition to the need for greater Congressional oversight of military activities, Congress should also disclose more information to the public about its oversight activities, so that the public can be informed about important issues regarding use of force.

One area where Congressional secrecy has become a particular problem is in its reluctance to exercise its authority over whether and where the U.S. is at war. Speaker Paul Ryan quietly stripped an amendment to the NDAA from Rep. Barbara Lee (D-CA) that would have repealed the 2001 Authorization for the Use of Military Force (AUMF). The amendment, which would have forced Congress to consider the various theaters where the U.S. is currently at war and decide whether or not to authorize them moving forward, had been adopted with a surprising level of bipartisan support.  This week, the Senate held a closed hearing on the administration’s view of a new AUMF, rather than allowing the public to engage in the debate over the country’s wars.

Participants discussed a number of other areas where the open government community can engage in promoting oversight and accountability for military use of force. Better protections are needed for military whistleblowers, classification reform can help to shift the culture of national security secrecy, and the State Department must reassert itself rather than shrinking from the public view. As the public awaits the administration’s plans for military engagement around the world, including Afghanistan and the still-secret plan to defeat ISIS, it will be increasingly important to maximize transparency and ensure robust oversight of military activity.


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