[…] The problem with sanctioning a policy of assassination is that assassins are murderers and governments that authorize murder are flirting with tyranny. Democracy can’t be sustained if those in power believe they can suspend the rule of law whenever it seems convenient.
When President Obama authorizes a drone strike in Pakistan, Yemen, or anywhere else, he is ordering members of the CIA to engage in murder. The targets might not be as transparently unthreatening as was Wael Zuaiter and the method of killing might not be so obviously murder as is a bullet to the head at point-blank range. Indeed, this is what makes drone warfare a salable policy: the fact that rather than having the appearance of cold-blooded killing, it looks like military operations carried out on the battlefield — even though these attacks are taking place in locations where the United States is not at war. There are no bullet-ridden bodies, no autopsies, no police investigations, no agents on the run or in prison, and no trials.
And even now, when the use of drones is being widely questioned and a New York Times reporter can write in a matter of fact way that for this administration “killing is more convenient than capture,” there is little prospect that Obama’s authorization of murder will face legal scrutiny. Instead, the CIA is in the process of quietly handing over to the Pentagon responsibility for drone operations.
Questions about whether Obama’s kill list and the deaths of more than 3,000 people involve any kind of criminality will never be addressed and America can retain its sense of innocence with the soothing thought that whatever was done, was done in order to save precious American lives.
The President hasn’t uttered a word about drones since the SOTU address.
This morning, Daniel Klaidman put out a piece at The Daily Beast entitled, “Exclusive: No More Drones For CIA”. In it, he writes the following:
At a time when controversy over the Obama administration’s drone program seems to be cresting, the CIA is close to taking a major step toward getting out of the targeted killing business. Three senior U.S. officials tell The Daily Beast that the White House is poised to sign off on a plan to shift the CIA’s lethal targeting program to the Defense Department.
The move could potentially toughen the criteria for drone strikes, strengthen the program’s accountability, and increase transparency. Currently, the government maintains parallel drone programs, one housed in the CIA and the other run by the Department of Defense. The proposed plan would unify the command and control structure of targeted killings and create a uniform set of rules and procedures. The CIA would maintain a role, but the military would have operational control over targeting. Lethal missions would take place under Title 10 of the U.S. Code, which governs military operations, rather than Title 50, which sets out the legal authorities for intelligence activities and covert operations.
I would posit that moving the murder program from the CIA to DOD has more to do with legal cover than it has to do with “strengthen[ing] the program’s accountability, and increas[ing] transparency”. As I noted last week, the legal basis for CIA drone strikes and other lethal covert actions is dubious at best. As legal scholar Kevin Jon Heller notes:
The CIA is obviously not an “organized armed force, group, or unit” that is under the command of the US military; the CIA is, in its own words, “an independent US Government agency responsible for providing national security intelligence to senior US policymakers.” Nor are the CIA’s drone strikes controlled by the military (which would not satisfy Art. 43 anyway). The interesting provision is paragraph 3. The CIA may be an “armed law enforcement agency,” but it still does not satisfy Art. 43(3): first, it has not been “incorporated” into the US’s armed forces, because incorporation requires national legislation subjecting the agency to military control (see the ICRC Commentary to AP I, para. 1682); and second, the US has not informed al-Qaeda and its associated forces that it has been so incorporated — indeed, as widely noted, the US has never even formally acknowledged that the CIA drone program exists.
In an IAC [international armed conflict], then, CIA drone operators would not have the right under IHL [international humanitarian law] to kill anyone. And it is difficult to see how the situation could be any different in a NIAC [non-international armed conflict (Yemen, for instance)]. Arguing that the rules of IAC apply analogically in NIAC, as the US often does – it borrows the concept of an al-Qaeda “associated force,” for example, from the IAC concept of co-belligerency — is no help, for all the reasons just mentioned. So the US would have to argue that the category of privileged combatants in NIAC is somehow actually wider in NIAC than in IAC, an idea for which there is no precedent in state practice and little if any support in conventional international law.
Marcy Wheeler explores this further in her post “Breaking! Brennan Extends No Rule Drones for 2 Years”:
… Klaidman reports (and this I believe) that the Administration plans to eventually move drone operations under Title 10, where they won’t suffer from the clear legal problems they do under Title 50. … To some degree I wonder whether this is just another shell game, though, moving Title 50 under Title 10 after having considered all the legal problems with moving Title 10 under Title 50.
With regards to what it means in practice, I had many of the same thoughts Jack Goldsmith did: given that CIA reportedly doesn’t press the button now, given that they will continue to be involved in the intelligence side, what does this really change? Will the Saudis and Pakistanis be as willing to share their intelligence on drone strikes with DOD as they are with CIA? Has Ben Emmerson, in spite of all the claims he’s a chump, already managed to get the chief drone killer in the world to give up the plausible deniability that prevents imposing some international legal framework on them? Since DOD is actually better at keeping secrets than the CIA is, will this in fact lead to less oversight of drones?
We’ll see. Here’s a hint.
Now, the real kicker in the Klaidman story (Wheeler again):
[H]ere’s the detail I find most interesting:
Officials anticipate a phased-in transition in which the CIA’s drone operations would be gradually shifted over to the military, a process that could take as little as a year. Others say it might take longer but would occur during President Obama’s second term. “You can’t just flip a switch, but it’s on a reasonably fast track,” says one U.S. official.
Two months ago, we learned that John Brennan’s drone rule book would include a one-, maybe two-year, exemption for the drones he would soon operate at CIA.
U.S. officials said the effort to draft the playbook was nearly derailed late last year by disagreements among the State Department, the CIA and the Pentagon on the criteria for lethal strikes and other issues. Granting the CIA a temporary exemption for its Pakistan operations was described as a compromise that allowed officials to move forward with other parts of the playbook.
The decision to allow the CIA strikes to continue was driven in part by concern that the window for weakening al-Qaeda and the Taliban in Pakistan is beginning to close, with plans to pull most U.S. troops out of neighboring Afghanistan over the next two years. CIA drones are flown out of bases in Afghanistan.
“There’s a sense that you put the pedal to the metal now, especially given the impending” withdrawal, said a former U.S. official involved in discussions of the playbook. The CIA exception is expected to be in effect for “less than two years but more than one,” the former official said, although he noted that any decision to close the carve-out “will undoubtedly be predicated on facts on the ground.” [mw emphasis]
Here we’re learning — BREAKING EXCLUSIVE SHINY SHINY — that the Administration plans to eventually move drone operations under DOD but it might take about as long as three years–that is, probably as long as Brennan will be in charge at CIA. The only new news from what we learned in January seems to be that it might take longer than a year, and the possible exemption will extend to all of CIA’s drones, not just those in Pakistan.
So here’s what I take from all this: operating drones covertly rather than secretly has diminishing value domestically, as courts grow increasingly impatient with participating such a charade. Given that fact, there are tremendous legal advantages to giving them at least the patina of legality by operating them under DOD. Now, if and when the OLC memos that authorized Anwar al-Awlaki’s killing become public, if and when it becomes clear how weak the argument made in them is with regards to CIA, the Administration will be able to claim — Daniel Klaidman reported it so it must be true! — that that weak legal argument no longer matters because CIA is out of the drone business.
But if you read what John Brennan actually says rather than what reporters report credulously, he’s a firm believer in keeping certain capabilities available at CIA, just in case the President ever wants to use those capabilities in a covert operation. And what better cover for a covert operation, after all, than a very public campaign saying you’ll no longer conduct such activities as covert operations?
It would appear that, once again, the folks in the Obama administration are giving the public the illusion of transparency while simultaneously tying themselves in knots to get both ex post facto and, as Klaidman says, “institutionalized” legal cover for the murder program going forward.
Last month, here is what Touré had to say about criticism of the leaked Justice Department white paper that revealed the administration’s legal rationale for killing Americans abroad without due process, much of which was wrapped in the same rhetoric employed to justify racist policing practices:
We’re at war with al Qaeda right now, and if you join al Qaeda, you lose the right to be an American. You lose the right to due process. You declare yourself an enemy of this nation, and you are committing treason. And I don’t see why we should expand American rights to people who want to kill Americans, who are working to kill Americans, who are committing treason. This is not criticizing the United States. This is going to war against the United States.
Touré later defended himself against criticism and doubled down, saying, ”I wonder if some in this nation are getting a little soft when they are defending the civil liberties of al Qaeda members…People hiding in ungovernable tribal areas who still pose a threat must be dealt with.”
Let’s pretend for a moment that this isn’t identical to conservative arguments made during the Bush years and focus instead on how closely Touré’s justification resembles the attitude this nation has towards gangs and drugs in black communities.
Keep in mind that Obama’s kill policy doesn’t provide any specifics about what constitutes being a terrorist. That judgment is based on the decree of top officials who need not present any evidence.
Ready for a thought experiment? Here is a slightly altered version of Touré’s argument. Notice I’ve replaced “al Qaeda” with “gangs/drugs”:
We’re at war with drugs right now, and if you join a gang, you lose the right to due process. You declare yourself an enemy of this nation. And I don’t see why we should expand rights to gang members who want to kill for drugs. This is going to war against the United States.”
“I wonder if some in this nation are getting a little soft when they are defending the civil liberties of gang members.
Obviously, all black men are not gang members. Nevertheless, the American public, including people of color, are largely conditioned to view black men as inherently dangerous criminals, making them the targets of the decades long war on drugs. The same goes for middle eastern Muslim men, who are seen as potential terrorists prepared at any moment to blow up innocent Americans, making them the targets of our nation’s war on terror.
The cia doesn’t fly it’s drones, but it does the targeting and gives the order to fire.
Opinio Juris | Is the CIA in the Drone Kill Chain? (Answer: Likely.)
The fact that there is more information known now than five years ago is not a legitimate defense for keeping official legal interpretations secret. It is not even a legitimate defense for not releasing information on the killings of US citizens Anwar al-Awlaki, Samir Khan and Awlaki’s 16-year-old son, Abdulrahman al-Awlaki. They are dead, the operations should have little bearing on the success of current operations and there’s a public interest in seeing documentation on what led government to decide it had the authority to kill these specific individuals or what the official reaction was after Khan and Abdulrahman were killed when they were not reportedly supposed to be targeted. Speeches by high-ranking officials are not an acceptable substitute for transparency. In each case, the speeches have only raised more questions that may have never been asked if the public was able to see the legal basis as officially drafted for use by the president to give him the authority to kill. Also, nobody is asking for suspected terrorists’ emails. The Obama Justice Department is not fighting the American Civil Liberties Union (ACLU) in court over the release of documented communications between leaders of Al Qaeda. They want the legal basis and some details around the criteria for putting individuals on to the secret kill list.
Targeted Killings & the Right to Know When Your Government Can Kill You
… [H]ere we have not Republicans but the most loyal establishment Democrats denouncing Obama’s secrecy obsession in the harshest of terms. “President Obama is ignoring the system of checks and balances that has governed our country from its earliest days.” He is “acting in opposition to the democratic principles we hold most important”. “The administration clammed up again and went directly back to the way they were from 2001-2 to 2007.” “What could be more destructive to an informed citizenry than the threat of the death penalty or life imprisonment without parole for whistle-blowers?”
This hardly means that Democrats are now ready to pose meaningful challenges to Obama’s radical policies: to release the OLC memos would be simply to disclose the White House’s claimed justification for the powers it has seized, and would not mean there would be meaningful opposing to those powers. Still, secrecy is the linchpin of abuse of power and transparency is a necessary (though not sufficient) antidote; as Thomas Jefferson wrote in an 1804 letter to John Tyler: “Our first object should therefore be, to leave open to him all the avenues of truth. The most effectual hitherto found, is freedom of the press. It is therefore, the first shut up by those who fear the investigation of their actions.”
It is telling indeed that even Democratic loyalists are losing their patience with Obama’s secrecy obsession, as it reveals just how extreme it is. And all of this from a president who not only centrally vowed in his campaign to usher in a new era of transparency, but who still praises himself for having done so. [++]
Killing a bunch of people in Sudan and Yemen and Pakistan, it’s like, ‘Who cares—we don’t know them.’ But the current discussion is framed as ‘When can the President kill an American citizen?’ Now in my mind, killing a non-American citizen without due process is just as criminal as killing an American citizen without due process—but whatever gets us to the table to discuss this thing, we’re going to take it.
Teju Cole on the “Empathy Gap” and Tweeting Drone Strikes
it seems that two things happened that set up the Awlaki strike: the Saudis let us build a CIA base that would allow us to conduct technically covert operations without the consent of the government, and Saleh’s struggle to stay in power gave us an excuse to say he was unable to target Awlaki (so we didn’t have to admit he was also unwilling to).
Another knockout piece from Marcy Wheeler.
[…] If President Obama believes what he said in his State of the Union address — “It is not sufficient for citizens to just take my word for it that we are doing the right thing” — then he should authorize a comprehensive historical review into targeted killings, ideally by an independent commission. This review would later be declassified — with input from the original classification authorities — to the greatest extent possible without revealing classified information regarding the sources and methods of such operations. This would include protecting those foreign liaison relationships that facilitate U.S. military or intelligence access to denied areas.
The president and his senior officials have repeatedly asserted that drones are “surgical,” “discriminate,” and “precise,” and that there is a very careful and deliberate interagency process (“not a bunch of folks in a room somewhere just making decisions”). If that is true, then the Obama administration must believe it has a positive targeted killings story to share with the public. This would be preferable to the surreptitious custom of rebutting criticisms of targeted killings via anonymous officials, or selectively disavowing attacks that were initially thought to be drone strikes, as the New York Times reported [last] Monday.
Such an action would not be unprecedented. In May 2009, President Obama declassified Office of Legal Counsel memoranda justifying torture “because the existence of that approach to interrogation was already widely known, the Bush administration had acknowledged its existence.” Today, targeted killings via U.S. drone strikes are openly debated, and Obama himself explicitly acknowledged the practice of targeted killings in Pakistan over 13 months ago. The principle and excuse of deniability no longer applies and is an unacceptable defense for the limitless secrecy surrounding the targeted killings program.
There are publicly available or partially declassified U.S. government reports on similarly controversial topics, including the CIA’s 2004 report on detention and interrogation, the Pentagon’s 2005 reviewof detention and interrogation, and the director of national intelligence’s 2012reporton Guantanamo detainees. There have also been major reports, like the 9/11 Commission Report and the congressional joint inquiry into the terrorist attacks of September 11, 2001, as well as the U.S. military’s highly critical assessments of the Afghanistan and Iraq wars. Finally, there was the Senate Foreign Relations Committee report on Afghanistan’s narco-war, which revealed that U.S. military forces “put drug traffickers with proven links to the insurgency on a kill list, called the joint integrated prioritized target list.”
If the White House is unable or unwilling to conduct a similar study on drones, then Congress should build upon its recent efforts at oversight by initiating a full and complete accounting of non-battlefield targeted killings. This could be done through a joint inquiry or within the committees on governmental affairs, foreign relations, armed services, or intelligence. It would include staff investigations, closed hearings with administration officials, and public hearings with outside experts and former officials. One recent example is the Senate Select Committee on Intelligence’s 6,000-page report on CIA torture, which may be released in whole or in part “after receiving executive branch comments,” according to Senator Dianne Feinstein. Given that Congress (justifiably) investigated America’s role in the torture of an estimated 136 victims, it is surely worth investigating the targeted killings program, which has killed over 3,000 suspected terrorists, militants, and civilians — and counting. [++]
We previously discussed how Attorney General Eric Holder wrote a letter confirming that the President would have authority to kill citizens on U.S. soil without a charge or conviction. His answer triggered a principled filibuster by Sen. Rand Paul and another embarrassment to Democratic Senators who, again, chose personality over principle in staying silent. Now, Holder has issued a new statement. No, President Obama still claims the right to kill U.S. citizens on his sole authority. However, Holder now says that, if the citizen is “not engaged in combat on American soil,” the President cannot vaporize him. The answer leaves the constitutional claim of Obama even more confused and conflicted. Does this mean we have a third category now under the policy: citizen, citizen terrorist, and citizen non-combatant terrorist? The difference appears to determine whether you can be vaporized or speak to counsel but Holder is not explaining to the citizenry.
In his prior letter, Holder answered a question about whether the President was claiming the right to kill citizens on U.S. soil. This follows the release of a memo showing that Holder’s description of the policy at Northwestern University Law School was narrower than the actual policy described within the Administration. A memo leaked to the press shows that the Administration has adopted a virtual limitless definition of imminence: “The condition that an operational leader present an ‘imminent’ threat of violent attack against the United States does not require the United States to have clear evidence that a specific attack on U.S. persons and interests will take place in the immediate future.”
Last week, Holder said “It is possible I suppose to imagine an extraordinary circumstance in which it would be necessary and appropriate under the Constitution and applicable laws of the United States for the President to authorize the military to use lethal force within the territory of the United States.”
After the filibuster, Holder wrote a short terse response to Paul: “It has come to my attention that you have now asked an additional question: ‘Does the President have the authority to use a weaponized drone to kill an American not engaged in combat on American soil?’ The answer to that question is no.”
It is not clear how this “additional questions” differed from the first or why Holder did not answer the question previously. The use of “it has come to my attention” adds a wonderfully dishonest element to an evasive answer. It is not clear what Holder means by “engaged in combat” since the Administration memo shows that the Administration is using an absurdly broad definition of “imminent” threat under the kill list policy. Since the Administration has continued to assert that terrorists are engaged in a war against the U.S., the terse reply of Holder seems designed to preserve later flexibility.
Moreover, there is nothing in the constitutional claim of the Administration that reflects such a limitation. Deciding on where to kill a citizen would be a discretionary policy under the sweeping presidential authority described by the Administration. [++]
There’s no way around it.