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The United States Makes Payment to Family of Italian Killed in CIA Air Strike

Published online by Cambridge University Press:  29 March 2017

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In January 2015, a CIA drone killed an Italian aid worker named Giovanni Lo Porto during a strike on an Al Qaeda compound in the Pakistan-Afghanistan border region. In July 2016, the Obama Administration reached a settlement agreement with Lo Porto's family that included a payment by the United States of more than one million euros.

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Type
Case Report
Information
American Journal of International Law , Volume 111 , Issue 1 , January 2017 , pp. 188 - 191
Copyright
Copyright © 2017 by The American Society of International Law 

In January 2015, a CIA drone killed an Italian aid worker named Giovanni Lo Porto during a strike on an Al Qaeda compound in the Pakistan-Afghanistan border region. In July 2016, the Obama Administration reached a settlement agreement with Lo Porto's family that included a payment by the United States of more than one million euros.

In early 2012, Lo Porto traveled to Pakistan for a job with an NGO that was helping to rebuild an area damaged by floods.Footnote 1 Soon after his arrival, Al Qaeda operatives kidnapped him.Footnote 2 Lo Porto's captors also held Dr. Warren Weinstein, an American working as a contractor for the U.S. Agency for International Development who had been kidnapped in 2011.Footnote 3 Italian authorities reportedly told Lo Porto's family in December 2014 “that they were in contact with intermediaries and making progress on negotiations.”Footnote 4

In January 2015, the United States bombed the compound where Lo Porto and Weinstein were being held. Both men were killed, along with Ahmed Farouq, a U.S. national and Al Qaeda leader whose presence at the compound had not previously been known.Footnote 5 As President Barack Obama later explained, the attack was based on “hundreds of hours of surveillance” that demonstrated the presence of Al Qaeda operatives.Footnote 6 Obama also asserted that there had been no indication that the hostages or other civilians were present at the location.Footnote 7

In the wake of the operation, U.S. intelligence professionals conducted a “battle damage assessment . . . to determine the results of the operation and whether . . . any[] civilian casualties occurred.”Footnote 8 According to the White House, the intelligence community concluded “with a high degree of confidence that Dr. Weinstein had been killed in a U.S. government counterterrorism operation. The president was briefed by his national security team soon after that high-confidence assessment was completed.”Footnote 9 On April 22, 2015, “members of the national security apparatus” officially informed Weinstein's family that Weinstein had been killed during of a U.S. government counterterrorism operation.Footnote 10 Obama called Italian Prime Minister Matteo Renzi personally to report Lo Porto's killing;Footnote 11 the two had not discussed Lo Porto during Renzi's visit to the White House the week before.Footnote 12

In a public statement on April 23, Obama apologized for the killings:

As President and as Commander-in-Chief, I take full responsibility for all our counterterrorism operations, including the one that inadvertently took the lives of Warren and Giovanni. I profoundly regret what happened. On behalf of the United States government, I offer our deepest apologies to the families.Footnote 13

As Press Secretary Josh Earnest subsequently explained, the president had not personally approved the strike:

The President did not specifically sign off on these two operations. There are policies and protocols in place for our counterterrorism professionals to make decisions about carrying out these kinds of operations based on a wide variety of things, including an assessment of near certainty that the target is an al Qaeda target and that civilians would not be harmed if the operation were carried out.Footnote 14

The procedures outlined in this statement appear to align with a 2013 Presidential Policy Guidance paper which articulated “the standard operating procedures for when the United States takes direct action, which refers to lethal and non-lethal uses of force, including capture operations, against terrorist targets outside the United States and areas of active hostilities.”Footnote 15 The rules set forth in that document only directly require presidential approval of a strike if “the proposed individual is a U.S person” or if “there is a lack of consensus among Principals regarding the nomination. . . .”Footnote 16

In conjunction with his statement, Obama “directed that the existence of this operation be declassified and disclosed publicly.”Footnote 17 He also emphasized that the battle damage assessment had concluded “that this operation was fully consistent with the guidelines under which [the U.S.] conduct[s] counterterrorism efforts in the region . . . .”Footnote 18 Earnest likewise asserted that “the operation was lawful and conducted consistent with our counterterrorism policies,”Footnote 19 and specifically that it had satisfied the government's “near-certainty standard.” Earnest stated:

[Here,] that near-certainty standard applied to two things.

The first is near certainty that this was an al Qaeda compound that was used by al Qaeda leaders; that turned out to be true. That assessment did turn out to be correct. The other near-certainty assessment was that no civilians would be harmed if this operation were carried out. Unfortunately, that was not correct, and the operation led to this tragic, unintended consequence.Footnote 20

Earnest also emphasized that “we are conducting a thorough independent review to understand fully what happened and how we can prevent this type of tragic incident in the future.”Footnote 21 During the press briefing, Earnest disclosed that the U.S. government planned to provide compensation to the families of Weinstein and Lo Porto, but provided no details.Footnote 22

Italian officials had mixed reactions to Obama's announcement. Renzi told reporters that the kidnappers were ultimately responsible for the deaths of Weinstein and Lo Porto and praised Obama's transparency.Footnote 23 The chair of the Italian Parliamentary Committee for the Intelligence and Security Services, however, said that Italy was not properly informed about the strike: “‘Was it against someone or against a generic target? . . . We want to know.’” Footnote 24

In July, the Obama administration, via its embassy in Rome, reached an agreement to pay Lo Porto's family nearly 1.2 million euros, though according to a press report, U.S. officials said that the actual sum was closer to 2.6 million euros.Footnote 25 The agreement is governed by Italian law, and stipulates:

This does not imply the consent by the United States of America to the exercise of jurisdiction of the Italian Courts in disputes, if any, directly or indirectly connected with this instrument. Nothing in this instrument implies a waiver to sovereign or personal immunity.Footnote 26

The embassy has not provided further details about the circumstances under which the agreement was concluded.Footnote 27

The payment reportedly marked the first of its kind “made by the US government to the family of a drone-strike victim killed outside a declared war zone.”Footnote 28 As of the date of publication, the U.S. government had not reached an agreement with the family of Warren Weinstein.Footnote 29

References

1 Peter Baker, Obama Apologizes After Drone Kills American and Italian Held by Al Qaeda, N.Y. Times (Apr. 23, 2015), at http://www.nytimes.com/2015/04/24/world/asia/2-qaeda-hostages-were-accidentally-killed-in-us-raid-white-house-says.html.

2 Elisabetta Povoledo, Giovanni Lo Porto Was Known as Aid Worker Drawn to Needy, N.Y. Times (Apr. 23, 2015), at http://www.nytimes.com/2015/04/24/world/europe/american-drone-strike-italian-aid-worker-giovanni-lo-porto.html.

3 Baker, supra note 1.

4 Cora Currier, One Year On, No Justice for Italian Hostage Killed in U.S. Drone Strike, Intercept (Mar. 15, 2016, 8:04 PM), at https://theintercept.com/2016/03/15/one-year-on-no-justice-for-giovanni-lo-porto-italian-hostage-killed-in-us-drone-strike.

5 See White House Press Release, Press Briefing by Press Secretary Josh Earnest (Apr. 23, 2015), at https://www.whitehouse.gov/the-press-office/2015/04/23/press-briefing-press-secretary-josh-earnest-4232015 [hereinafter April 23, 2015, Press Briefing].

6 White House Press Release, Statement by the President on the Deaths of Warren Weinstein and Giovanni Lo Porto (Apr. 23, 2015), at https://www.whitehouse.gov/the-press-office/2015/04/23/statement-president-deaths-warren-weinstein-and-giovanni-lo-porto [hereinafter Statement by the President on the Deaths of Warren Weinstein and Giovanni Lo Porto].

7 Id.

8 April 23, 2015, Press Briefing, supra note 5.

9 Id.

10 Id.

11 Baker, supra note 1; April 23, 2015, Press Briefing, supra note 5.

12 White House Press Release, Press Briefing by Press Secretary Josh Earnest (Apr. 24, 2015), at https://www.whitehouse.gov/the-press-office/2015/04/24/press-briefing-press-secretary-josh-earnest-4242015.

13 Statement by the President on the Deaths of Warren Weinstein and Giovanni Lo Porto, supra note 6.

14 April 23, 2015, Press Briefing, supra note 5.

15 Presidential Policy Guidance, Procedures for Approving Direct Action Against Terrorist Targets Located Outside the United States and Areas of Active Hostilities (May 22, 2013), at https://www.justice.gov/oip/foia-library/procedures_for_approving_direct_action_against_terrorist_targets/download [hereinafter Presidential Policy Guidelines]. See Daugirdas, Kristina & Mortenson, Julian Davis, Contemporary Practice of the United States, 110 AJIL 811 (2016)CrossRefGoogle Scholar.

16 Presidential Policy Guidelines, supra note 15.

17 Statement by the President on the Deaths of Warren Weinstein and Giovanni Lo Porto, supra note 6.

18 Id.

19 White House Press Release, Statement by the Press Secretary (Apr. 23, 2015), at https://www.whitehouse.gov/the-press-office/2015/04/23/statement-press-secretary [hereinafter Statement by the Press Secretary].

20 April 23, 2015 Press Briefing, supra note 5.

21 Statement by the Press Secretary, supra note 19.

22 April 23, 2015 Press Briefing, supra note 5.

23 See Baker, supra note 1; Will Dunham & Julia Edwards, U.S. Strike Inadvertently Killed U.S., Italian Hostages; Obama Apologizes, Reuters (Apr. 23, 2015, 5:15 PM), at http://www.reuters.com/article/us-usa-security-hostages-idUSKBN0NE1MI20150423.

24 Baker, supra note 1.

25 Under the agreement, “[t]he United States of America . . . propose[s] to donate as an ex gratia payment in the memory of Mr. Giovanni Lo Porto, born in Palermo, on June 23, 1977, deceased in Pakistan, the amount of Euros 1,185,092.10 . . . to [two members of Lo Porto's family].” Instrument No. 1258, Proposal of Donation (July 8, 2016) at http://inchieste.repubblica.it/it/repubblica/rep-it/2016/09/15/news/morte_lo_porto_l_atto_di_donazione_degli_usa_alla_famiglia-147849038 [hereinafter U.S.-Italy Agreement]; Greg Miller & Greg Jaffe, U.S. Agrees to Pay Nearly $3 Million to Family of Italian Killed in CIA Strike, Wash. Post (Sept. 16, 2016), at https://www.washingtonpost.com/world/national-security/us-agrees-to-pay-nearly-3-million-to-family-of-italian-killed-in-cia-strike/2016/09/16/5c213af6-7c1a-11e6-bd86-b7bbd53d2b5d_story.html. See also Stephanie Kirchgaessner, US to Pay €1m to Family of Italian Aid Worker Killed in Drone Strike, Guardian (Sept. 16, 2016), at https://www.theguardian.com/us-news/2016/sep/16/us-to-pay-1m-euros-family-italian-giovanni-lo-porto-drone-strike.

26 U.S.-Italy Agreement, supra note 25, Art. 10.

27 Kirchgaessner, supra note 25.

28 Id. (“Experts say it is already understood that the US offers condolence payments to the families of civilian casualties of airstrikes in Afghanistan and Iraq, but that the Lo Porto agreement stands out because he was killed in Pakistan and because documents show the US was directly involved in the payment.”).

29 Miller & Jaffe, supra note 25.