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Anatomy of the US Targeted Killing Policy

[RQ-1 Predator aircraft at Tallil Air Base, Iraq. Image from Flickr.] [RQ-1 Predator aircraft at Tallil Air Base, Iraq. Image from Flickr.]

As President Barack Obama geared up for the 2012 campaign, he and his administration were eager to capitalize on their most bipartisan “victory” -- the targeted killing of Osama bin Laden on 2 May 2011. With the one-year anniversary of bin Laden’s death approaching, top officials took to podiums to deliver remarks that, while differing in some particulars, were consistent in their message: The targeted killing policy is legal, it is necessary to keep Americans safe, it is effective in eliminating terrorist threats, and it is undertaken with great care to minimize civilian casualties.

Meanwhile, other top national security officials -- some on the record, some unnamed -- were providing fresh details about the “kill or capture” process. In late May, the Daily Beast and the New York Times published major investigations conveying a message that was also quite consistent: Despite the president’s background as a constitutional law professor, he is a hands-on driver of the national security state who, “without hand wringing,” personally makes the decisions to execute the nation’s enemies. [1]

Some Republican leaders and conservative pundits cried foul. Not at the targeted killings, which they endorse, but at the strategic leaking, which they maintain is intended to boost Obama’s image as a counter-terrorism tough guy and is threatening to national security. Their demand: keep up the killing, but kill the leaking. Obama angrily denied that the White House was directing leaks to the media, and in June Attorney General Eric Holder announced that two prosecutors had been appointed to investigate them.

On the other, lonelier, end of the American political spectrum, rule-of-law liberals and anti-war activists received information that the president headed the kill list “nomination” process as one more example of Obama’s 180-degree turn from his 2008 campaign promises to realign the ship of state with international law. The most grievous revelation of May concerned how the Obama administration has contrived its claim of low (“single-digit”) civilian casualties. While “personality strikes” are directed at known individuals, “signature strikes” target “groups of men who bear certain signatures, or defining characteristics associated with terrorist activity, but whose identities aren’t known.” [2] According to officials who talked to the Times, the latter method “in effect counts all military-age males in a strike zone as combatants…unless there is explicit intelligence posthumously proving them innocent.” [3]

Targeted killing has become the mainstay of US counterterrorism policy. In the Bush administration’s last year in office, there was a ninety-four percent increase in drone strikes over the year before. [4] Since Obama took charge in 2009, drone warfare has escalated dramatically in terms of the number of strikes per month and the geographic scope that now extends to East and North Africa and the Pacific. The CIA and the military’s Joint Special Operations Command (JSOC) execute this policy along separate tracks, each developing its own list of targets. The tactic of targeted raids, first introduced in Iraq in 2006, was transported, along with the drones, to Afghanistan in 2009. By April 2011, the raids were occurring at a rate of 1,000 per month. [5] According to John Rizzo, former acting general counsel for the CIA, “the Predator is the weapon of choice, but it could also be someone putting a bullet in your head.” [6]

One challenge for the public messaging about the wondrous accuracy of drones and the humanitarian sensitivity guiding their use is the secrecy of the targeted killing policy and the classification of intelligence on which it is based. These secrets, apparently, are meant not to be kept, but to be managed.

Incentives to Kill

Shortly after bin Laden’s body went into a watery grave, Obama addressed the nation: “Justice has been done…. The cause of securing our country is not complete. But tonight, we are once again reminded that America can do whatever we set our mind to.” It was midday in Pakistan, but 11:35 pm on 1 May on the East Coast of the United States. Across the country, Americans celebrated the news in streets, stadiums and bars.

The bin Laden operation was directed by the CIA. The boots on the ground were those of Navy SEAL Team 6. Afterward, the public was feted with images of the president and his advisers in the White House Situation Room watching a video feed of then-CIA Director Leon Panetta, who relayed information as the operation proceeded, from the landing and entry into the compound on the outskirts of the Pakistani city of Abbottabad, to the shootout that left several men dead, to visual identification of the chief target. Then Panetta, using bin Laden’s code name, said, “Geronimo EKIA,” which means “enemy killed in action.”

At a press conference the next morning, a national security official made a statement that Reuters reported: “This was a kill operation.” By the afternoon, however, White House counterterrorism adviser John Brennan sought to smooth the rough edge off that answer by stating that the SEALs would have taken bin Laden alive if they had had the chance. In the initial attempt to craft a riveting narrative, officials claimed that bin Laden was killed during or after a firefight and that he had attempted to use one of his wives as a human shield. But at an off-camera briefing later that day, another senior White House official informed reporters that he was not armed when he was killed. Because bin Laden was widely regarded as a legitimate military target, if he had been armed or even if he put up resistance when he was shot once in the head and once in the chest (“double-tapped”), the killing would have been uncontroversial except among those who dispute the legality of a military operation inside Pakistan without the knowledge of that government.

But what would the SEALs have done if bin Laden had surrendered? In accordance with the laws of war, even a legitimate target should be spared death if arrest is possible because of the prohibition against willfully killing an enemy who has surrendered or is hors de combat. On 3 May, Brian Williams of NBC Nightly News put the question to Panetta. “Did the president's order read ‘capture’ or ‘kill’ or both or just one of those?” Panetta responded, “The authorities we have on bin Laden are to kill him. And that was made clear. But it was also, as part of their rules of engagement, if he suddenly put up his hands and offered to be captured, then -- they would have the opportunity, obviously, to capture him. But that opportunity never developed.”

Capture, however, had apparently been considered in the months leading up to the operation. On 16 February, Panetta was asked by a member of the Senate Intelligence Committee what the Obama administration would do if bin Laden or al-Qaeda’s second-in-command, Ayman al-Zawahiri, were captured. He responded, “We would probably move them quickly into military jurisdiction at Bagram [the main US prison in Afghanistan] for questioning and then eventually move them probably to Guantánamo.” At the time, his statement seemed oddly dissonant in light of Obama’s stated desire to close the jail at Guantánamo Bay. Imprisoning bin Laden there would have given the facility vast new legitimacy. As far as the public knew, his whereabouts were unknown and any official comment about his fate was pure speculation.

At the same February hearing and in response to the same question, National Intelligence Director James Clapper said: “If we were to capture either one of those two luminaries -- if I can use that term -- I think that that would probably be a matter of some interagency discussions as to what their ultimate disposition would be and whether they would be tried or not.” The statements from Panetta and Clapper spurred further inquiries. Then-Secretary of Defense Robert Gates said, “The honest answer to that question is that we don’t know.”

These uncertain answers in the spring of 2011 highlighted the lack of a clear detention policy. Harvard law professor Jack Goldsmith, who served in the Defense and Justice Departments under the Bush administration, summed up the dilemma: “We are all obsessed with Gitmo, but I don’t think that’s where the important action is. The important action is who we are not detaining because Gitmo has become this black-eye place where we can’t have future detentions.” [7] The reason, as he explained, stems from domestic politics: Congress has restricted the president’s ability to move people out of Guantánamo, whether for trials in federal courts, which are now prohibited by legislation, or through transfers to other countries because of the burdensome assurances that the secretary of defense would have to provide Congress that anyone exiting would pose no future threat to national security. The barriers to getting people out of Guantánamo function as a political deterrent to moving anyone new in; the last detainee arrived there in 2008. According to Goldsmith, “The lack of a detention policy and the inability to detain members of the enemy going forward creates a heightened incentive to kill people.”

The Revived Torture Debate

If administration officials had made a political calculation that a dead bin Laden would spare them calls to resurrect Bush-era “enhanced interrogation methods,” which Obama had canceled on his second day in office, they were sorely mistaken. At a press briefing on the morning of 2 May, a senior official provided some details about the intelligence that had been used to track bin Laden to Abbottabad:

One courier in particular had our constant attention. Detainees gave us his nom de guerre or his nickname and identified him as both a protégé of Khalid Sheikh Mohammed, the mastermind of September 11, and a trusted assistant of Abu Faraj al-Libi, the former number three of al-Qaeda who was captured in 2005…. But for years, we were unable to identify his true name or his location. Four years ago, we uncovered his identity, and for operational reasons, I can’t go into details about his name or how we identified him, but about two years ago, after months of persistent effort, we identified areas in Pakistan where the courier and his brother operated.

What unfolded as the administration was taking its victory lap was a consequence of Obama’s decision to “look forward, not backward.” The president had established no commission to investigate the Bush administration’s use of torture, and thus the field was left open for torture enthusiasts to conflate all interrogation-derived intelligence with the previously authorized and now prohibited tactics. The most critical tile in the mosaic of detection was the true identity and location of a trusted courier who was linked to Khalid Sheikh Mohammed and Abu Faraj al-Libi. Both men had been held in CIA black sites and subjected to the harshest tactics (Mohammed was waterboarded 183 times) before being transferred to Guantánamo in 2006. This information inspired some to proclaim that waterboarding was the answer to the question of how bin Laden had been tracked.

In a 2 May interview on ABC News, former Vice President Dick Cheney, the chief architect of the Bush administration’s interrogation and detention policy, speculated about the role of the “enhanced interrogation program that we put in place back in our first term.” He said, “All I know is what I’ve seen in the newspaper at this point, but it wouldn’t be surprising if in fact that program produced results that ultimately contributed to the success of this venture.” Far less speculative was former Bush administration speechwriter Marc Thiessen, who wrote from his perch on the Washington Post opinion page:

Before coming to Gitmo, both [Mohammed and al-Libi] were held by the CIA as part of the agency’s enhanced interrogation program, and provided the information that led to bin Laden’s death after undergoing interrogation by the CIA. In other words, the crowning achievement of Obama’s presidency came as a direct result of the CIA interrogation program he has denigrated and shut down…. The president owes some thanks -- and apologies -- to the men and women of the CIA’s interrogation program.

A similar sentiment was expressed by Berkeley law professor John Yoo, who had authored some of the memoranda providing legal cover for the use of violent and degrading tactics when he worked in the White House Office of Legal Counsel from 2001 to 2003. At the American Enterprise Institute’s blog, Yoo wrote: “Without the tough decisions taken by President Bush and his national security team, the United States could not have found and killed bin Laden. It is the continuity of policies in the war on terror that has brought success, not the misguided effort of the last two years to disavow them.”

Former Defense Secretary Donald Rumsfeld, who oversaw all military interrogations until he resigned in 2006, responded in a 2 May interview on Newsmax TV to the question of whether he thought harsh tactics at Guantánamo had played a role in the acquisition of intelligence about bin Laden’s whereabouts.

First of all, no one was waterboarded at Guantánamo Bay. That’s a myth that’s been perpetrated around the country by critics. The United States Department of Defense did not do waterboarding for interrogation purposes to anyone. It is true that some information that came from normal interrogation approaches at Guantánamo did lead to information that was beneficial in this instance. But it was not harsh treatment and it was not waterboarding.

By the following day, however, Rumsfeld recalibrated his position to comport with the Republican Party’s pro-torture line; in a Fox News interview with Sean Hannity, he said, “I think that anyone who suggests the enhanced techniques, let’s be blunt, waterboarding, did not produce an enormous amount of valuable intelligence just isn’t facing the truth.”

Sen. John McCain (R-AZ) took the opportunity to reinhabit his maverick persona, which he had mothballed upon deciding to enter the 2008 race for president. During the Bush years, McCain, along with Sens. Lindsey Graham (R-SC) and John Warner (R-VA), had been nicknamed “Republican dissenters” for pushing back against the Bush administration on interrogation policy. As he came out of a 4 May Senate intelligence briefing with Panetta, McCain told reporters, “So far I know of no information that was obtained, that would have been useful, by ‘advanced interrogation.’” He added, “I stand on the side of the United States and by the Geneva Conventions, of which we are signatories, which we were in violation of by waterboarding.”

The White House reportedly was surprised that a revived torture debate could overtake the celebratory coverage of the killing of the world’s most hunted and wanted man. More information had to be released to persuade the public that it was not the waterboard but “normal interrogation procedures” and years of conventional spy work and electronic surveillance that had led the US to the compound. The messaging now involved efforts to disprove the purported efficacy of torture and its non-role in the tracking of bin Laden.

Marty Martin, a retired CIA officer who had led the hunt for bin Laden, explained that Khalid Sheikh Mohammed had acknowledged the existence of the courier, Abu Ahmad al-Kuwaiti, months after the CIA stopped waterboarding him. Former CIA director Michael Hayden, who has become an outspoken critic of Obama, said, “I’m willing to concede the point that no one gave us valuable or actionable intelligence while they were, for example, being waterboarded. The purpose of the enhanced interrogation techniques was to take someone who was refusing to cooperate with us and to accelerate the process by which we would move from a zone of defiance to a zone of cooperation.” Hayden’s point was that “coercively” interrogating a detainee and breaking him open for information were complementary parts of a single process. According to non-classified information, however, Mohammed had told his CIA interrogators that al-Kuwaiti was “retired” and of no current significance. In other words, after the waterboarding ended, he gave false and misleading information. Al-Libi likewise sought to mislead interrogators by providing a false name for the courier.

Tommy Vietor, spokesman for the National Security Council, tried to shut down the debate by stating the obvious: “The bottom line is this: If we had some kind of smoking-gun intelligence from waterboarding in 2003, we would have taken out Osama bin Laden in 2003.” [8]

Targeting Citizens

What pushed the bin Laden operation off the front page and reoriented the call and response about targeted killing was a drone strike five days later that tried and failed to kill Anwar al-Awlaqi, an American-born Muslim cleric residing in Yemen who was characterized as a leader of al-Qaeda in the Arabian Peninsula. Two other individuals died in that strike.

As a policy option, killing citizens was not an invention of the Obama administration. Shortly after the attacks of 11 September 2001, Bush authorized the CIA and later the military to kill citizens living abroad if they joined the fight against the US or were deemed to pose a “continuing and imminent threat” to Americans and US national interests. The first drone strike outside of Afghanistan occurred on 3 November 2002, when a CIA-operated Predator launched from Djibouti shot its Hellfire missile into a car in Yemen carrying six people. The target was Qa’id Salim Sinan al-Harithi, alleged to be involved in the 2000 bombing of the USS Cole. One of the other dead passengers, Kamal Darwish, was a US citizen. [9] That operation, because it occurred outside a theater of war, signaled the end of the prohibition on assassinations that had been in effect since 1977, and the launch of a global manhunt for terror suspects who fled Afghanistan after the US-led invasion and were setting up shop elsewhere.

But Darwish had not been the target of the strike that killed him. The Obama administration’s innovation was to place citizens on the kill list. On 27 January 2010, Dana Priest of the Washington Post reported that al-Awlaqi and two other (unnamed) citizens had been designated for targeting by JSOC. The American Civil Liberties Union (ACLU) filed a Freedom of Information Act (FOIA) request to relevant government agencies for records about the legal and factual basis for the targeted killing policy and the use of drones. On 16 March, the ACLU filed a lawsuit to enforce the request. The CIA, citing FOIA exemptions for its activities, refused to confirm or deny that it has any relevant records or that it engages in targeted killing. The judge accepted this response and dismissed the case on 9 September 2011.

The Post reported that al-Awlaqi’s name had been added in late 2009, on the heels of two incidents to which he was reportedly linked. On 5 November 2009, an Army major, Nidal Malik Hasan, went on an armed rampage at the Fort Hood military installation in Texas, killing thirteen and wounding twenty-nine people. On 25 December, a Nigerian named Umar Farouk Abdulmutallab attempted to detonate a bomb hidden in his underwear on a transatlantic flight bound for Detroit once it was in US airspace. Between these two events -- specifically, the day before the thwarted underpants bombing -- Yemen, using intelligence provided by the CIA, bombed an al-Qaeda meeting that al-Awlaqi was attending. He was not among the thirty who died.

After the Post article, al-Awlaqi’s father, with the ACLU and the Center for Constitutional Rights (CCR), brought a lawsuit challenging the legality of executive authorization for extrajudicial execution of a citizen. The plaintiffs contended that this step exceeds the president’s authority under the Constitution and international law. The Justice Department’s response brief urged the court to dismiss on procedural grounds, namely that the elder al-Awlaqi lacks standing because the government was not planning to kill him. Two other reasons for dismissal were also offered: either the court could toss out the case because any assessment of plaintiffs’ claims would require the court to “decide non-justiciable political questions,” or, even if the court deemed the claims to have merit, the information necessary to litigate them is “properly protected by the military and state secrets privilege.” On 7 December 2010, the court dismissed the case on the lack of standing grounds, while noting that the legality of the drone program is a “political question” that falls under the purview of the president and Congress.

On 30 September 2011, a joint CIA-JSOC drone strike killed Anwar al-Awlaqi and another US citizen, Samir Khan, along with two others. As he had done after the killing of bin Laden, Obama made a public address declaring that the attack had dealt a “major blow” to al-Qaeda. On 14 October, another drone attack killed al-Awlaqi’s sixteen-year old son ‘Abd al-Rahman, his seventeen-year old cousin and five others while they were dining in an open-air restaurant. In the aftermath of that attack, officials claimed that ‘Abd al-Rahman was a twenty one-year old militant. His grandfather produced the boy’s birth certificate proving the lie, at which point the administration reverted to its default position of asserting that CIA operations are classified and cannot be commented upon.

On 8 October  2011, Charlie Savage of the New York Times published an exposé, based on anonymous sources, about the contents of a secret 2010 memo authored by David Barron and Marty Lederman, who worked in the Office of Legal Counsel at that time. (Barron and Lederman have since returned to their academic posts at Harvard and Georgetown, respectively.) According to the Times, “The legal analysis, in essence, concluded that Mr. Awlaki could be legally killed, if it was not feasible to capture him, because intelligence agencies said he was taking part in the war between the United States and Al Qaeda and posed a significant threat to Americans, as well as because Yemeni authorities were unable or unwilling to stop him.”

The US, following Israel’s lead, reasons that the state has a self-defense right to kill enemies far from any battlefield and even if they are not participating directly in hostilities. This rationale allows targeted killing beyond the hot war zone of Afghanistan. Even if one accepts that targeted killing comports with the laws of war, and that citizenship confers no special immunity upon those who pose an imminent threat, nevertheless in the domestic context the constitutional rights to due process distinguish the targeting of citizens from foreigners. The fact that there was a standing order to kill al-Awlaqi since 2009 and an Office of Legal Counsel memo authorizing the operation since 2010 poses the question of whether he was slated for extrajudicial execution for past acts. The government refused to make public any information to substantiate the allegation that al-Awlaqi’s role, in the words of one official, had changed from “inspirational to operational.”

“The Process We Do”

Classification, secrecy and selective leaking function together to manage the messaging about the targeted killing policy. In 2011, the White House, the CIA, and the Pentagon provided previously undisclosed information about the bin Laden operation (the name of a SEAL who was involved in the planning from the beginning) and unprecedented access -- the kind denied to most journalists on the national security beat -- to two Hollywood filmmakers, Kathryn Bigelow and Mark Boals. Their thriller, “Zero Dark Thirty,” was originally scheduled for a pre-election release, although it has since been delayed until December 19. [10] If the killing of bin Laden was the ideal reelection campaign issue, the controversy over the targeting of citizens has been a spoiler. The message management problem, in a nutshell, is how to reconcile three contradictory prerogatives: first, talking up the idea that bad guys are being killed in record numbers; second, talking past criticisms that targeting citizens is illegal; and third, declining to talk -- at least not on the record -- about how decisions are made either before or after the drones are launched. The last of these prerogatives runs up hard against Obama’s promises of greater transparency and accountability. His administration has become the most secrecy-dependent in US history.

On 17 October 2011, the ACLU filed another FOIA request about the legal and factual basis for the targeted killing policy and all evidentiary records related to al-Awlaqi and other citizens who have been killed or listed. On 1 February 2012, the ACLU sued to enforce this request. The case was joined with a New York Times lawsuit seeking records about targeting US citizens, including the 2010 Office of Legal Counsel memorandum that remains classified. The objective of this litigation is “to help the public better assess the wisdom and lawfulness of the targeted killing program and its use against American citizens.” The ACLU argued that many officials, including the president and the CIA director, have made public statements about the targeted killing program “and taken credit for its putative successes, defended its legality and dismissed concerns about civilian casualties.”

The top officials who mounted stages in the spring, then, did so with the obvious goal of deflecting criticism. On 5 March, Attorney General Holder delivered a speech in which he spoke directly to critics: “Some have called such operations ‘assassinations.’ They are not, and the use of that loaded term is misplaced. Assassinations are unlawful killings…. [T]he US government’s use of lethal force in self-defense against a leader of al-Qaeda or an associated force who presents an imminent threat of violent attack would not be unlawful.” On targeting citizens, he said, “[T]he government must take into account all relevant constitutional considerations…. Of these, the most relevant is the Fifth Amendment’s due process clause, which says that a government may not deprive a citizen of his or her life without due process of law.” He continued, “Some have argued that the president is required to get permission from a federal court before taking action…. This is simply not accurate. ‘Due process’ and ‘judicial process’ are not one and the same, particularly when it comes to national security. The Constitution guarantees due process, not judicial process.” The following day, comedian Stephen Colbert lampooned Holder’s comments: “Due process: It’s the process we do.”

Whether or not the White House directed the May leaks, the public now knows more about the process we do. According to the Times:

It is the strangest of bureaucratic rituals: Every week or so, more than 100 members of the government’s sprawling national security apparatus gather, by secure video teleconference, to pore over terrorist suspects’ biographies and recommend to the president who should be the next to die. This secret “nominations” process is an invention of the Obama administration, a grim debating society that vets the PowerPoint slides bearing the names, aliases and life stories of suspected members of Al Qaeda’s branch in Yemen or its allies in Somalia’s Shabab militia. [11]

A more pointed engagement with the “kill list” procedure was published in Esquire in July. [12] Tom Junod, addressing himself directly to the president, begins:

You are a good man. You are an honorable man. You are both president of the United States and the winner of the Nobel Peace Prize…. You have become your own deliberative body, standing not so much by your decisions as by the process by which you make them. You are not only rational; you are a rationalist. You think everything through, as though it is within your power to find the point where what is moral meets what is necessary.

Junod strikes the mother lode of contradiction:

As soon as the killing started -- and the killing started as soon as you took office -- you struggled with how to tell the American people about it. You struggled with its secrecy, and you struggled no less with its popularity. You struggled with how you could reconcile your commitment to transparency with your commitment to carrying out classified lethal operations based on secret kill lists, and you struggled with how to promulgate a narrative that has proven remarkably effective at combating Republican charges that you are “soft on terror.” How do you tell a story that is not meant to be told?

Apparently, Junod’s call for transparency -- especially about the killing of the younger al-Awlaqi -- struck a chord in the administration. In a follow-up blog post, Junod reports that he received a phone call from an insider who had read his article. “The call was a surprise, not simply because I’d tried to speak to this man over the months that I was researching my story, but also because he understood the story better than most of the people who’ve read it, and thought that I ‘captured the president fairly.’” [13] The unnamed caller’s message to “help you think through the issues you raised” adds another layer to public knowledge about the clandestine killings. The caller explained that the goal of transparency, which the president himself would probably endorse, is “difficult, if not impossible, to achieve.” “State secrecy, the man on the phone said, exists for a reason, and it’s generally not the reason that the Glenn Greenwalds of the world think it is -- it’s not to cover up wrongdoing. It’s to protect two essential things: the sources and methods of the intelligence community, and something called ‘the requirement of non-acknowledgement.’”

Junod reports that the caller explained, “It might sound trivial…. It might sound as though large principles are being sacrificed to the sensitivities of small nations. But everyone in the political branches considers non-acknowledgement to be the lifeblood of diplomacy.” In essence, the caller’s point means that the ability to pursue a transnational kill policy depends on guarantees to other governments not to acknowledge their involvement or assistance that, in turn, impel a posture of secrecy and denial. Junod describes it as “the power of kings.” “But it was the first explanation I’d heard for why this administration hasn’t acknowledged the death of Abdulrahman al-Awlaki that was an alternative to a chilly silence, and I thanked him for the kindness of his call.”

That explanation about the requirement of non-acknowledgment helps make sense of the government’s brief, filed on 20 June, in response to the ACLU’s FOIA litigation. Once again, the government refused to confirm or deny information about the program or to release records about killings that have been the subject of so many public statements and leaks. The government brief, like the insider who called Junod, even refuses to confirm or deny US responsibility for the operations that killed three citizens.

But these people are dead as a result of the drone program. On 18 July, relatives of the al-Awlaqis and Samir Khan, with the ACLU and CCR, filed a new lawsuit that accuses Secretary of Defense Panetta, CIA Director David Petraeus, Adm. William McRaven, and Lt. Gen. Joseph Votel of violating the Constitution’s fundamental guarantee against deprivation of life without due process of law. The citizenship status of the three Americans provides the opening to seek judicial review and unspecified damages in a US court. But this litigation aims to raise larger questions about the vague legal standards and secretive decision making for targeted killing. If the case is not dismissed on procedural or “political question” grounds, as the government will inevitably urge, it will mark the first attempt in the US to adjudicate the meaning of “direct participation in hostilities” and “imminent threat” in relation to the policy of targeted killing, which the government claims is lawful.

Body Counts and Backlashes

Three deaths are a drop in the targeted killing policy’s bucket of blood. In Pakistan and Yemen, in particular, accelerating drone warfare and the “collateral damage” of civilian deaths have contributed to political instability and intensified anti-American sentiment. The “drone team” of the London-based Bureau of Investigative Journalism has been tracking strikes and investigating the identity or status -- militant or civilian -- of those killed. As of mid-July, for Pakistan the Bureau estimates between 482 and 835 civilian casualties among the 2,513 to 3,226 total; for Yemen between 58 and 149 civilians among the 329 to 957 total; and for Somalia between 11 and 57 civilians among the 58 to 169 total. Even the lowest estimates are far greater than the contradictory claims of no or low civilian casualties offered up by US officials. And they certainly do not comport with President Obama’s statement during an online town hall meeting in January that drones had not caused “a huge number of civilian casualties.”

In 2007, Noor Behram, a photographer from Pakistan’s north Waziristan who covers the region for Al Jazeera, started a personal project to document the consequences of drone warfare. He compiled images and footage of civilians killed and injured by 28 CIA drone attacks over four years. His collection was featured at a July-August 2011 exhibition in London, “Gaming in Waziristan,” organized by the British organization Reprieve and Pakistani human rights lawyer Shahzad Akbar. That exhibition was part of Reprieve’s project, “Bugsplat,” which “aims to inject transparency into the use of drones in Pakistan and elsewhere.” The term “bugsplat” is used by US officials to describe humans who are killed by missiles launched from drones.

On 28 October 2011, Reprieve and Akbar’s Foundation for Fundamental Rights organized the Waziristan Grand Jirga in Islamabad to open an international dialogue on drones. The gathering brought together tribal elders and victims’ families from Waziristan with lawyers, activists, and artists from many countries. At the end of the meeting, Tariq Aziz, a sixteen-year old who had come with his father, volunteered to collect evidence that might be helpful to protect his family and community from harm. He never got the chance, though, because three days later he and his twen-year old cousin, Waheed Khan, were killed by a Hellfire missile. [14]

Since then, Reprieve and Akbar’s foundation have been busy on multiple fronts. On 12 March, they introduced legal proceedings in Britain’s High Court against Foreign Secretary William Hague, alleging that the General Communications Headquarters, which operates under Hague’s authority, provided “locational intelligence” to the CIA that was used in a March 2011 drone strike on a jirga in northwestern Pakistan that killed dozens of civilians. One element of the case highlights the illegality of civilian engagement in armed force: “Headquarters employees who assist CIA employees to direct armed attacks in Pakistan are in principle liable under domestic [Pakistani] criminal law as secondary parties to murder.” On 9 May, Akbar’s foundation filed two constitutional petitions in Pakistan’s High Court challenging the government’s failure to protect its citizens from US drone attacks. The petitioners have asked the Court to order the government to strengthen its efforts to protect citizens by bringing the issue of drones before the UN Security Council and the International Criminal Court, to initiate criminal proceedings against Pakistanis and Americans responsible for civilian deaths, and to set up an independent commission to investigate civilian deaths by drone.

On 6 June, UN Commissioner for Human Rights Navi Pillay, during a trip to Pakistan, called for an investigation of civilian casualties caused by drone strikes in that country and urged the government to invite the UN Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions to investigate some of the attacks in which civilians had died. Pillay’s visit coincided with a Bureau of Investigative Journalism report that the CIA has resumed attacks on rescuers who come to the aid of victims, as well as those attending funerals for the dead.

On 12 June, 26 Democrats in Congress wrote to President Obama expressing concern about newly publicized information that the CIA and JSOC had been granted “new authority” for signature strikes against unidentified targets. “The implications of the use of drones for our national security are profound. They are faceless ambassadors that cause civilian deaths, and are frequently the only direct contact with Americans that the targeted communities have.” The president’s response, delivered three days later, blended boilerplate about the ongoing war against al-Qaeda, the Taliban, and associated forces with the first public acknowledgment of military operations in Somalia and Yemen. While not responsive to the congressional letter’s concern about civilian casualties, his statement about military operations fertilizes terrain that critics of the targeted killing policy are likely to exploit for more transparency and accountability.

The Power of Kings

One lesson an astute observer may draw from the legacy of the torture policy is the high rate of error. Thousands of people were arrested, coercively interrogated, and detained for years on the basis of faulty or false evidence or no evidence at all. Consider Guantánamo, just the tip of the global detention iceberg in the war on terror. For years, everything about the facility, including detainees’ identities, was shrouded in secrecy. President George W. Bush’s assertion that he had the authority to imprison people incommunicado indefinitely and to keep the whole operation a secret was a claim to the power of kings. Driving the exercise of this power was the presumption of intelligence, namely that anyone in US custody might have some. The errors of this presumption were available to the White House as early as August 2002, when a senior Arabic-speaking CIA analyst who had been dispatched to Guantánamo determined that at least half the detainees and probably a much higher percentage had no ties to or meaningful information about al-Qaeda and the Taliban. But, like Galileo’s inquisitors, the Bush administration smothered the truth because the power of kings was a convenience and, moreover, the narrative that these men were the “worst of the worst” had already been packaged for sale.

The power of kings became less convenient and its premises less persuasive when dragged into the light, largely as a result of litigation. Of the 779 people who were ever detained at Guantánamo, 532 were released or transferred by the time Bush left office. In a May 2009 address, President Obama described his interrogation and detention inheritance as a “legal mess.” Only 84 people have been deemed by the government to be either triable for crimes (35 or 36) or indefinitely detainable because they pose a continuing security threat (forty-six). Of the 242 detainees that Obama inherited, seventy-one have been transferred out, three have died in custody, and eighty-seven have been approved for transfer or “conditional detention” but remain stuck because of a political decision not to release them.

If the disposal of people’s freedom and dignity on the basis of secret and uncontestable information is the sine qua non of the power of kings, so much more so is the power to dispose of their lives. No doubt US intelligence-gathering capabilities are vastly improved since the start of the war on terror. But to claim infallibility and deny evidence to the contrary, and to stonewall requests for information about who is classified as killable and why, is outrageous.

As the 2012 election cycle enters its final phase, there is plenty of outrage to go around on a host of issues, from the economy to health care to immigration. There is hardly any agitation, however, over the secretive process that has racked up thousands of deaths since the last major election. On the contrary, Pew polling indicates that a strong majority (sixty-two percent) of Americans across the political spectrum endorse targeted killing (Republicans seventy-four percent, independents sixty percent, Democrats fifty-eight percent). (In contrast, majorities from the other twenty-one nations surveyed about US drone warfare oppose it.) Apparently, the power of kings plays well in Peoria.

[The article was originally published in Middle East Report.]


[1] Jo Becker and Scott Shane, “Secret ‘Kill List’ Proves a Test of Obama’s Principles and Will,” New York Times, May 29, 2012; and Daniel Klaidman, “Drones: How Obama Learned To Kill,” Daily Beast, May 28, 2012, which is an excerpt from Kill or Capture: The War on Terror and the Soul of the Obama Presidency (Boston: Houghton Mifflin Harcourt, 2012).
[2] Klaidman, “Drones.” Signature strikes were first reported by Eric Schmitt and David Sanger, “Pakistan Shift Could Curtail Drone Strikes,” New York Times, February 22, 2008.
[3] Becker and Shane, “Secret ‘Kill Lists.’”
[4] Noah Shachtman, “Drone ‘Surge,’” Wired, February 5, 2009.
[5] Gareth Porter, “How McChrystal and Petraeus Built an Indiscriminate ‘Killing Machine,’” Truthout, September 26, 2011.
[6] Tara McKelvey, “Inside the Killing Machine,” Newsweek, February 13, 2011.
[7] “The Guantanamo Detainees: What Next?” The American University Washington College of Law, February 18, 2011. The webcast is available at: http://media.wcl.american.edu/Mediasite/SilverlightPlayer/Default.aspx?p....
[8] New York Times, May 3, 2011.
[9] Seymour Hersh, “Manhunt: The Bush Administration’s New Strategy in the War Against Terrorism,” New Yorker, December 21, 2002.
[10] Politico, May 23, 2012.
[11] Becker and Shane, “Secret ‘Kill Lists.’”
[12] Tom Junod, “The Lethal Presidency of Barack Obama,” Esquire, July 9, 2012.
[13] The post is online at: http://www.esquire.com/blogs/politics/obama-drone-strikes-10558354.
[14] Clive Stafford Smith, “For Our Allies, Death from Above,” New York Times, November 3, 2011.

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