Exception(s) to the Rule(s): Civilian Harm, Oversight, and Accountability in the Shadow Wars

Executive Summary

Nearly twenty years after the terrorist attacks of 9/11, and a decade after the death of Osama Bin Laden, the President of the United States continues to draw from a quiver of legal, policy, and technological instruments to use lethal force in secret, directly or through proxies, in countries around the world. Many of the authorities claimed as available to the President to use lethal force today were justified as necessary based on the perception of an urgent threat two decades ago. To enable flexibility and speed, several secret programs and activities were exempted from traditional legal controls, expectations of transparency, and congressional oversight. Meanwhile, covert lethal strikes by armed drones and paramilitary operations with surrogate forces continue to be associated with a lack of accountability for civilian casualties, human rights violations, and U.S. involvement in wars not specifically authorized by Congress.

Recognizing the risks involved with insufficiently unbounded authority to use force, some members of Congress and civil society have sought to curtail the President’s war powers in a “global war on terror” by focusing attention on repealing or constraining the 2001 Authorization for the Use of Military Force (AUMF). Of equal importance but less commonly examined or scrutinized are the expansive legal arguments, policies, and instruments by which successive administrations have used force with little to no oversight or accountability. Even if calls to end endless war are successful and the AUMF is repealed, these tools, and the power to wield them without oversight, will remain intact. Reestablishing responsible and accountable U.S. foreign policy — especially as the U.S. turns its focus towards great power competition — demands an urgent reevaluation of the sufficiency of legal and policy controls on the use of force and paramilitary operations.

This report, produced by Center for Civilians in Conflict (CIVIC) in partnership with the Stimson Center and Security Assistance Monitor, examines the tradeoffs and consequences involved with the continued use and availability of certain counterterrorism authorities and practices as the “endless war” enters its twentieth year. In examining these tradeoffs, it focuses on the proliferation and normalization of authorities and tools for employing lethal force, including modes of security cooperation where the use of lethal force and civilian harm are reasonably foreseeable outcomes. It focuses on three specific programs that are subject to fewer rules and much narrower forms of congressional oversight than other “conventional” military and intelligence programs, especially those forms of oversight that govern national decisions to go to war; the prevention and accountability for civilian casualties; and the protection of internationally recognized human rights.

The programs and activities covered by this report are 1) the covert use of lethal force by the Central Intelligence Agency (including CIA drone strikes conducted under the authority of U.S.C. Title 10); 2) the provision in secret (covert or clandestine) of support to irregular forces or government security forces by the CIA; and 3) the provision of support to regular and irregular partner forces by U.S. military special operations forces under a specific fiscal authority created after 9/11, namely U.S.C. Title 10, §127e. The report’s main assertion is that the continued availability and, in fact, increased use of a range of “parallel” authorities risks fatally undermining rules that govern and control the use of force.