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Jack L.B. Gohn: The drones and the virus – Time to talk, not prosecute

In two extraordinary recent feats of reportage, the New York Times made vital contributions to the national fund of knowledge concerning the national drone assassination program (May 29) and the cyberattacks on Iran’s nuclear program (June 1). What happened next was both peculiar and disturbing.

Though our government continues to refrain from officially admitting it, we have been killing unknown numbers of people with drone strikes, many of them people we have no reason to believe are terrorists. Weekly, more than a hundred members of the national security apparatus meet by videoconference to formulate a new kill list to recommend to President Obama, and, also apparently weekly, Obama reviews the group’s recommendations and signs off on that week’s killings. There is no one involved in the process from outside the Executive Branch. No legal memoranda supporting the process have been made public. While the persons specifically targeted are all supposed to be terrorists, we notoriously tolerate the deaths of countless non-targets who just happen to have been in the wrong place at the wrong time when the drone bombs fell. The adult males who have had that misfortune are deemed retroactively to have been terrorists, simply because they are presumed to have been up to no good by virtue of sitting so close to a terrorist. The women and children are deemed collateral damage.

The virus for Iran, known now as Stuxnet, appears to have been the first — but it will surely not be the last — computer virus designed specifically to destroy physical machinery. It succeeded in wrecking 1,000 of the 5,000 centrifuges Iran is using to enrich uranium. The collateral damage, in this instance, came about in 2010, when some Iranian nuclear engineer unsuspectingly took an infected laptop home and hooked up to the Internet, releasing Stuxnet “into the wild,” infecting countless other computers around the world. Again, our president has been deeply involved in the deliberations about the program, including what to do about it after the virus escaped.

Instead of suggesting Pulitzers for the authors of these pieces, Republican legislators went into high dudgeon, urging an independent prosecutor to determine who leaked them. The U.S. Attorney General, a Democrat, appointed the U.S. Attorneys for the District of Columbia and Maryland to conduct a leak investigation — again making the kinds of noises that suggest that the leaks fundamental to each story were terrible things.

Peculiar, as I have said. It is close to a no-brainer that the source of the leaks was the White House itself. Though somewhat nuanced, the stories fundamentally depict Obama as a thoughtful, principled man making the tough decisions. No press secretary could have asked for more positive treatment, given the highly questionable nature of the presidential actions under discussion. Sending two well-respected U.S. Attorneys off to locate the leakers looks an awful lot like Richard Nixon asking Archibald Cox to find out who was responsible for Watergate.

The bigger peculiarity, though, is that the leaks that both parties are loudly attacking actually begin to heal — a little bit — the wreckage the secrecy around these subjects has wrought; our constitutional system has been damaged about as badly as those centrifuges — not by the leaks, but by what the leaks concerned.

Although the key Office of Legal Counsel opinion about the drones has not been released, of course it exists, and one of the reported findings there is that the due process involved in our government taking all those lives abroad could be accomplished completely within the Executive Branch.

I’m sorry, but that’s just not good enough. That is the same rationale that was used to justify Abu Ghraib and Guantanamo, the warrantless wiretaps, the torture, etc. Central to it is the concept that we are at war, that war is waged exclusively by the Executive, and that individual rights against government enjoyed by U.S. citizens in the U.S. in peacetime, especially due process rights and the benefits of checks and balances exercised by other branches of government against the Executive, do not apply under the conditions of this war.

Consequences for all

Maybe the authors of such opinions are half-right. We can all agree that historical understandings of the dividing line between war and law enforcement do not fit well the kind of conflicts our nation faces today. But the solution to that quandary should not be to cede all discretion to an Executive that works in the shadows. There are other unaddressed needs at work, among them the imperative to cut the public in on the discussion and the decision-making.

The public might not wish, even in the name of increased public safety, to be responsible for drone killings of innocent women and children — especially if this is done solely so that we can also knock off “bad guys” whose badness has been determined only by a cabal of 100 nameless people on a weekly videoconference call and ratified by a president who is not a judge and whose objectivity is affected by his desire for re-election. And the public almost certainly would not wish to have the deployment of scary computer viruses determined simply by a few high officials. Such decisions are going to have consequences for us all, and we all deserve a voice in them.

As to the drone killings, one of the consequences was spelled out by our most senior former president and Nobel laureate Jimmy Carter on June 24: this (together with detention, warrantless wiretapping, etc.) means we are “abandoning [our] role as the global champion of human rights.” By Carter’s count, we are now “clearly violating at least 10 of [the Universal Declaration of Human Rights’] 30 articles.”

The next victims of the precedents we set will likely be us, and it would be good for us to talk about that in advance.

As to the computer virus, the implications are staggering. This virus was designed to “phone home” and accept guidance to map the entire command and control structure of the Iranian nuclear enrichment facility — and then to accept orders to override those controls and direct parts of the facility to self-destruct. And now that virus is “in the wild,” meaning that someone or some country sufficiently skilled could pick up the reins of that virus and do similar things to other infected command and control systems, obviously including the ones that run our nation’s power grid, its communications, the Internet, everything down to traffic lights and up to airline traffic controllers. You don’t have to be a fan of Iran developing nuclear capabilities to recognize that this is a sobering prospect.

Thank goodness we had some courageous reporters at least alerting us to our moral and technical hazards. (And for that matter, thank goodness for the apparent cynicism in the White House that led to the release of key data to those reporters.) But in consequence, we now have not one but both political parties screaming for the heads of whoever fed those reporters that information. No one seems to be pointing out how vitally important the release of that information was to the public, and how dangerous hiding it all behind walls of secrecy could be.

It’s time to talk, not to investigate or prosecute.

Jack L.B. Gohn is a partner with Gohn, Hankey & Stichel LLP. The views expressed here are solely his own. See a longer version, with links to his authorities, at