Accidental deaths of American and Italian hostages overshadows president’s talk to intelligence chiefs as former adviser calls on officials to release further details

Barack Obama has insisted the US was not “cavalier” in its assessment of the risks to civilians as the accidental deaths of two hostages in a drone strike against al-Qaida overshadowed a planned pep talk for intelligence chiefs.



“Today, like all Americans, our thoughts and prayers continue to be with the families of Dr Warren Weinstein and Giovanni Lo Porto,” the president told a group of intelligence officers gathered to celebrate the 10th anniversary of the office of the director of national intelligence.

“We are going to review what happened,” he added. “We are going to identify the lessons that can be learned and any improvement and changes that can be made and I know those of you who are hear continue to share our determination to continue to do everything we can to prevent the loss of innocent lives.”

But the president appeared keen to reassure those who may blame themselves for the incident that he felt their pain too.

“I was asked by somebody: ‘How do you absorb news like we received the other day?’ and I told the truth: it’s hard.

“We all grieve when we lose an American life; we all grieve when any innocent life is taken. We don’t take this work lightly and I know that each and everyone of you understand the magnitude of we do and the stakes that are involved. These aren’t abstractions; we are not cavalier. And we understand the solemn responsibilities that are given to us.”

Meanwhile one of the architects of Obama’s legal rationale for drone strikes called on the administration to release the full details behind the CIA’s decision to attack two sites in Pakistan resulting in the accidental deaths of the two hostages.



“I left the administration in January 2013 and know nothing about how this recent case unfolded,” Harold Koh, a former legal adviser to the State Department, told the Guardian in an email, “but yes, plainly, the Obama administration should release the factual record regarding the January 2015 strikes that killed two hostages.”

A controversial figure for his role in devising the US justification for the targeted killing of an American member of al-Qaida, Koh is now a law professor at New York University.

Pakistan uses hostage killings to underline risk of US drone strikes Read more

As Obama grapples with his role in the deaths revealed on Thursday of Weinstein and Lo Porto, both killed by drones in Pakistan this January, his administration faces renewed questions about “signature strikes” and what could be fundamental flaws in its legal justification for them.

The “factual record” Koh refers to could be the difference between legal strikes and violations of the administration’s rules or worse, said Christopher Swift, a professor of national security studies at Georgetown University.

Swift and many others agree the strikes appear legal. “This looks like it’s in the realm of a horrible mistake rather than the violations of the Geneva Conventions,” he said. “It’s not the platform; it’s whether it was unlawful killing.

“If it’s completely accidental, as it appears, then it’s a horrible tragedy; it’s not necessarily an unconstitutional undertaking. There’s no clear law that’s going to tell you right or wrong here.”



But he noted that it was exceedingly difficult to judge the legality of such strikes because of the secrecy surrounding operations. Obama has ordered the episode declassified, but Swift noted that “all the facts are subject to the CIA’s black highlighter”.

“We have hundreds of hours of surveillance prior to the strike and we have continuous surveillance in the days afterward,” he said. “It doesn’t look like the administration knew the particular identities of the people they were hitting, so to the extent there was a failure it seems less a matter of the legal justification as it is on the intelligence side.”

On Thursday, the White House conceded it did not specifically know whom it had targeted in the “al-Qaida compounds” where US drones killed Weinstein and Lo Porto, as well as American-born militants Adam Gadahn and Ahmed Farouq and two others.

The admission suggests that “signature strikes” – lethal strikes launched without necessarily knowing who is in the crosshairs – have continued despite the president’s 2013 announcement that new rules would govern strikes. The order mandates that the CIA can authorize strikes only if it knows with “near certainty that the terrorist target” is present.

“Before any strike is taken, there must be near-certainty that no civilians will be killed or injured – the highest standard we can set,” Obama said in a 2013 speech.

A Guardian analysis of what drone strike data is available found that, although only 41 men were targeted between January 2006 and November 2014, an estimated 1,147 people had been killed by strikes. According to estimates by the Bureau of Investigative Journalism, 415 strikes have killed at minimum 2,500 people, 423 of whom were civilians, and at maximum nearly 4,000 people, including 962 civilians.

Koh has defended the administration’s standards in the past, saying in 2010: “Our procedures and practices for identifying lawful targets are extremely robust.” The administration follows rules of distinguishing between civilians and combatants “rigorously” and “in accordance with all applicable law”, he said.

In theory, the rule should have curbed signature strikes, which by definition cannot justify the killing of a “high-value target” since they do not necessarily target a specific person. Instead the administration deems some people “associated forces” of al-Qaida targets by dint of their behavior or other details gleaned through surveillance – where they congregate, who they meet, etc – and it is here that facts become key.

“It’s the idea that anyone in al-Qaida is going to be caught up in the same circumstances [as its leaders],” said Mary Ellen O’Connell, a professor of international law at Notre Dame. “That they might in some point in the future be part of an attempt to attack.”

The CIA had “fallen back” to signature strikes, O’Connell said: “Not knowing who the people were they were killing doesn’t meet their own criteria of facts, and facts must be present to kill even under their own very loose set of rules.”

Another argument made by the Department of Justice (DoJ) also raises lawyers’ hackles: that associated forces and high-value targets both constitute an “imminent threat” to the US. The administration laid out this argument in a 2013 white paper justifying the killing, without trial, of American al-Qaida leader Anwar al-Awlaki.

“The DoJ memorandum’s approach to imminence makes a mockery of the concept,” Swift said. “If you don’t have imminence, you’d have to show that you’d have due process,” he continued, adding that while the administration could have a legitimate due process procedure, secrecy clouds the process from public view.

A former chairwoman of the Use of Force Committee of the International Law Association, O’Connell takes issue with the entire scope of the drone program.

“They cobbled together its own set of international law rules,” especially for the al-Awlaki case, she said. “They didn’t want to live in the real house of rules, so they built their own house of cards, and now they’ve started to knock it down.”

The Weinstein family released a statement to Buzzfeed addressing the issue of whether a ransom was paid to his captors. “Over the three-and-a-half-year period of Warren’s captivity, the family made every effort to engage with those holding him or those with the power to find and rescue him,” they wrote. “This is an ordinary American family and they are not familiar with how one manages a kidnapping.”

Obama’s talk to US intelligence chiefs also came after two years of public criticism following surveillance revelations to the Guardian by NSA whistleblower Edward Snowden, but Obama said he trusted them to do right thing and was committed to persuading the public of their value.

“Our first job is to make sure that we protect the safety of the American people but there is not a person who I talk to who is involved in the intelligence community who doesn’t understand that we have to do so while upholding our values and our ideals, and our laws, and our commitment to democracy,” the president said.

“This is hard stuff. Everyone here is committed to doing it the right way. I am absolutely committed to making sure the American people understand all that we do to make sure we do it right.”