For a decade, more or less (but who’s counting?) critics of two successive administrations have been droning on about drones. Under the Bush administration, the main concern of civil libertarians actually focused on the highly problematic use of detentions without trial and outside the structure of the laws of war, at Guantánamo and elsewhere.
Barack Obama was severely critical of those practices and pledged to end them; he has largely done so, although Congress has not permitted him to close the prison at Guantánamo, as he promised. Obama has worked doggedly to reduce the number of such prisoners inherited from Bush, and has added none to the roster (as far as we know).
Drones were a side issue under Bush. They were highly useful for intelligence gathering in remote or dangerous areas, providing real-time information about the location and movements of “persons of interest,” such as Osama bin-Laden. Bush made relatively little use of their capacity to fire missiles with great accuracy. Some people worried about their violation of privacy if used domestically, or about violating the sovereignty of countries with which we were not at war. But as an intelligence tool, drones are scarcely distinguishable from spy satellites.
Obama, however, has used the drones with great success as a tool of assassination. Inheriting two unpopular wars, he has worked steadily to extricate us from both without actually losing them. Drone strikes have been an especially valuable tool in Afghanistan and the adjacent areas of Pakistan, enabling the killing of many Al-Qaeda leaders, though Bin-Laden, of course, was taken out by a Special Operations raid. But the very riskiness of the Bin-Laden raid serves to emphasize the tactical utility of armed drones. Obama can do significant damage to the Al-Qaeda leadership without risking American lives, though inevitably there will always be civilian casualties (“collateral damage” in the modern military euphemism). But an actual armed intervention would surely risk much higher civilian casualties. Moreover, Obama can avoid the dilemmas associated with Bush’s questionable detentions: dead men need not be detained, or have their status parsed by the courts.
The most spectacular drone assassination we know about was the killing of Anwar al-Awlaki, an American citizen and a leader of Al-Qaeda in the Arabian Peninsula. By all accounts, Awlaki was dedicated to mounting deadly attacks on the United States. But as an American citizen—even one who is an avowed traitor know to be engaged in hostilities against the US—did he not have the right not to be assassinated by executive fiat?
Accused criminals within the United States certainly have that right (although they can be killed if they resist a judicial warrant for their arrest). This applies as much to non-citizens as to citizens. Do we lose our rights when we leave the country? Apparently the Obama administration thinks so. It developed an elaborate set of criteria and procedures, to be carried out entirely in secret and within the executive branch, to determine when such a person may be killed (see my previous essays on LAP: “Kill List,” and “License to Kill”). This document (still secret) was adopted early in the Obama administration; only in early February of this year did NBC News gain access to a summary, a Department of Justice White Paper entitled, “Lawful Use of a Lethal Operation directed Against a U.S. Citizen Who Is a Senior Operational Leader of Al-Qa’ida or an Associated Force.”
The White Paper specifies that such an operation would be lawful only if: “(1) an informed, high-level official of the U.S. government has determined that the targeted individual poses an imminent threat of violent attack against the United States; (2) capture is infeasible, and the United States continues to monitor whether capture becomes feasible; and (3) the operation would be conducted in a manner consistent with applicable law of war principles.”
It is easy to see why Obama would find this an attractive legal argument. Capturing Awlaki would have entailed an operation at least as complex and risky as that against Bin-Laden (and in the end Bin-Laden was not captured alive). The drone attack avoided a lot of potential problems.
And yet, like Bush’s questionable detentions, drone assassinations establish troubling precedents for a nation of laws. The absence of any judicial or congressional check on executive discretion is especially problematic. We have highly secret national security courts that are charged with reviewing and approving or disapproving covert actions; why can those courts not be brought in to evaluate the administration’s analysis and conclusions? And why cannot the congressional intelligence committees insist that they be shown any and all top secret information? Such executive resistance to oversight has been going on since the Vietnam era, regardless of which party is in power. It can be said about every administration since the start of the Cold War: if covert operations serve the national interest, they should be able to withstand appropriately secure scrutiny from Congress and the Courts.
We urgently need, as a society, to figure out how to contain the president’s war powers without crippling the president’s ability to defend us. When we finally decide that the most urgent threat comes precisely from the president, will it be too late?
Friday, 8 February 2013