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Congress keeps quiet on U.S. drone policy — and that’s a big problem

- August 24, 2017

A day after President Trump’s prime-time speech on Aug. 21 announcing a troop increase in Afghanistan, the Trump administration seems ready to deploy drones against extremist groups hiding out in Pakistan.

U.S. counterterrorism drone strikes have become normalized and are now a near-daily occurrence. Our research — gathered by analyzing the Congressional Record — shows that despite the recent spike in strikes, Congress has become almost entirely silent. It has thereby abdicated an essential feature of legislative oversight, which is to “refine and enlarge the public view” of how, why and when the government carries out policy.

Drone strikes are on the rise

In 2002, the U.S. carried out its first counterterrorism drone strike, using a Predator in Yemen to target the member of al-Qaeda suspected of planning the 2000 bombing of the USS Cole, which killed 17 American sailors. The initial uptick in drone strikes was gradual, followed by rapid acceleration during the Obama administration.

In his first year in office, President Barack Obama conducted more strikes than President George W. Bush had ordered during his entire administration. By 2013, foreign policy analysts had declared “peak drone,” declaring that drone investment and reliance was on the decline and prophesying that “the Pentagon’s drone program may be tapering off.”

The data suggest otherwise. Although the use of drones subsided toward the end of Obama’s presidency, the Trump administration has increased the frequency of strikes and is on track to surpass Obama-era levels of drone activity.

Figure 1 illustrates this trend, using Bureau of Investigative Journalism data on possible and confirmed counterterrorism strikes in Pakistan, Somalia and Yemen. The figure includes all strikes except those listed as a “U.S. airstrike” or an “airstrike.” Because of the difficulty in confirming whether a strike was conducted by a drone or manned aircraft, it is possible that the totals shown here include some airstrikes.

Figure 1: Possible and confirmed counterterrorism strikes (except confirmed airstrikes) in Somalia, Yemen and Pakistan. The red bar for “Projected” strikes assumes the Trump administration will continue the current rate of drone strikes through the end of 2017. Source: Figure produced by authors based on data from the Bureau of Investigative Journalism, https://www.thebureauinvestigates.com/projects/drone-war.

Congress has stayed (almost) silent on drones

Here’s the problem: Congressional constraints act as meaningful checks on the use of force. In an interview toward the end of his administration, Obama warned that “without Congress showing much interest in restraining actions with authorizations that were written really broadly, you end up with a president who can carry on perpetual wars all over the world, and a lot of them covert, without any accountability or democratic debate.” Obama called for a more restrictive Authorization for the Use of Military Force (AUMF). But some members of Congress rejected the measure as “unconstitutional” on the grounds that it would tie the president’s hands.

To measure the extent of the legislative debate on drones, we created a series of scripts to search through the digitized Congressional Record — a daily log of everything said in either house of Congress — for mentions of drones or unmanned aerial vehicles. We accessed the Congressional Record from the U.S. Government Publishing Office using a modified version of the Sunlight Foundation’s tool, “congressional-record.”

We split the record into statements and removed those that were irrelevant — like anything referring to “FAA,” for instance, which would indicate the discussion related to domestic drone policy. Then we read through each drone-related statement and classified it as either pro-drone, anti-drone (restricting) or neutral.

What is Congress saying on drones, exactly?

We looked at open-door hearings because one of the major roles of Congress is to “educate the public” through debate, testimony and hearings. Closed-door meetings cannot serve that function. Our research suggests that public debate on drones does take place, indicating that this is not an issue inoculated from public discussion.

These findings also suggest, however, that legislative activity remains starkly disconnected from the uptick in drone activity. Figure 2 tracks legislators’ statements intended to restrict the use of armed drones. We found Congress made no more than 70 restrictive statements on the record in any year except 2013 — when Rand Paul’s 13-hour drone filibuster took place.

Figure 2: Public discussion in Congress aimed at curtailing the use of armed drones for counterterrorism. Source: Figure produced by authors using data compiled from the Congressional Record, https://www.gpo.gov/fdsys/browse/collection.action?collectionCode=CREC.

Despite the recent resurgence of strikes, legislative engagement on U.S. drone policy has remained stuck back at pre-peak lows. As our analysis shows, Congress lagged on its initial engagement, then became vocal in its opposition, and has once again muted any concerns, even in the wake of numerous drone-related scandals.

One such scandal took place in 2015, when Obama publicly revealed that a U.S. drone strike in Pakistan had killed two hostages —  aid workers from the United States and Italy. This revelation acknowledged that the United States is often unaware of who it is killing, but did not move the needle of legislative engagement on drones. Indeed, we identified only nine restrictive drone statements in the Congressional Record in 2015.

 Why congressional silence on drones matters

In 2017, drone activity has skyrocketed, with little indication of an increase in legislative attention to drones. U.S. drone strikes raise serious questions about domestic and international law, and rely either on stretching the 2001 AUMF or the president’s executive power.

Drone strikes raise important legal questions in the broader international context. Counterterrorism strikes outside the context of armed conflict are illegal, as they violate the norms of territorial integrity — which are intended to prevent countries from treating the entire world as their battlefield. There’s also a risk of setting a precedent that might encourage other countries to further violate the fundamental principles of international sovereignty.

In a May 2013 speech, Obama said that drones had become a “cure-all” for counterterrorism. After that point, he appeared to rely less on their use. Four years later, however, with a new president and an absence of any meaningful public congressional engagement on the topic of drones, there has been a steady increase in drone strikes — and renewed concerns that the drone war on terrorism may become a war without end.

Sarah Kreps is an associate professor of government and adjunct professor of law at Cornell University and an adjunct scholar at the Modern War Institute (West Point). She is the author, most recently, of “Drones: What Everyone Needs to Know” (Oxford University Press, 2016).

 Miles McCain is a student at Phillips Academy Andover. He is an advocate for privacy and government transparency, the founder of Politiwatch and the author of WorthHiding.com.