October 16, 2020 Public Contract Law Journal

Preventing Civilian Casualties: Accountability & Oversight for Drone Contractors

by Sarah Kerrigan

Sarah Kerrigan is a May 2020 graduate of The George Washington University Law School and served as Senior Articles Editor of the Public Contract Law Journal during the 2019 – 2020 academic year.

Abstract

As the use of drones in war has become more common and the number of drone strikes increases, the demand for and procurement of contractors in drone strikes has also increased. The increase in the use of contractors in drone strikes raises oversight and accountability concerns. As the ratio between the number of contractors to government personnel increases, supervision decreases and undue reliance on contractors intensifies. This lack of oversight makes it possible for contractors to sway the military decision-making process and contractors’ assessments to preempt official decisions by the military. Then, if a mistake occurs, there is a gap in the U.S. legal system’s ability to hold U.S. civilians and foreign nationals residing in the United States accountable for war crimes committed abroad. Concerns brought from more civilians closer to the battlefield can be remedied through contractual changes that outline a chain of command and a review process for drone strikes, and congressional action that increases accountability in courts.

I. Introduction

On February 4, 2002, a U.S. Predator drone relayed images of a tall man thought to be the leader of Al Qaeda, Osama bin Laden, on the basis that he was tall and being treated with respect.1 As the man and two others emerged from a wooded area, a missile was launched from the drone, killing the individuals.2 This was the first time that a Predator drone was used in a targeted killing;3 however, there were doubts about whether the man targeted was in fact Osama bin Laden. A few days after the strike, Secretary of Defense Donald Rumsfeld was asked whether any evidence suggested that Osama bin Laden might have been killed and he responded, “We just simply have no idea.”4 One week after the strike, Department of Defense (DoD) spokeswoman Victoria Clark, stated, “We don’t know yet exactly who it was.”5 It was later reported that the tall man was not Osama bin Laden.6 The tall man, Daraz Khan, was five feet and eleven inches tall, shorter than Osama bin Laden by six inches.7 The individuals killed were simply poor locals scavenging in the woods for scrap metal.8 Afghan villagers questioned the attack and explained that the three men knew nothing of Islamic politics.9 Since the killing of Daraz Khan, it is estimated that between 8,858 and 16,901 people have been killed by U.S. drone strikes as of May 2020 in Afghanistan, Pakistan, Somalia, and Yemen alone.10

As the use of drones in war becomes more common, and the number of drone strikes continues to increase, the demand for and procurement of contractors in drone strikes also increases.11 This increase in the use of contractors in drone strikes raises oversight and accountability concerns. As the ratio of contractors to government personnel increases, supervision decreases, and undue reliance on contractors intensifies.12 This lack of oversight makes it possible for contractors to sway the military decision-making process and for contractors’ assessments to preempt official decisions by the military.13 Then, if a mistake occurs, such as the targeting mistake that killed Daraz Khan and two other men, there is a gap in the U.S. legal system’s ability to hold U.S. civilians and foreign nationals residing in the United States accountable for war crimes committed abroad. Because the Trump administration has increased drone strikes by about 432%14 and considered privatizing the war in Afghanistan,15 as the number of private contractors increases these oversightand accountability concerns will only be exacerbated. This can be remedied through contractual changes that outline a review process for decisions to deploy target strikes — in which lives will be taken — and congressional action that increases accountability, which together, will alleviate concerns brought from having more civilian contractors closer to the battlefield.

This Note will first give a general background of the use of drone strikes in Part II. Then, it will discuss the legality of the use of drones for lethal attacks under both international and domestic law. In addition, this Note will demonstrate how the lack of oversight over contractors will result in mistakes in the battlefield and, when a mistake occurs, how contractors are not held accountable. Next, Part III of this Note will propose two solutions, the first being contractual changes that outline a chain of command and review process for drone strikes, and the second being congressional action that extends courts’ jurisdiction over the military to civilian contractors. These measures will increase oversight over contractors and will hold them accountable for mistakes resulting in unjustified casualties.

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