Those of us who have been urging disclosure of the legal reasoning behind the Administration’s drone killings policy have received nothing but vindication from the vital debate that ensued after the leakage last month of the Congressional Briefing, the so-called Department of Justice White Paper culled from Office of Legal Counsel memoranda. Even though this was surely but a sampling of the OLC memos that must exist, and even though nothing can diminish the inherent complexity of the subject, I sense a certain clarity emerging in the resulting discussion. And, so far as I can see, the disclosure came at zero cost in terms of the nation’s strategic and tactical options.
We have learned, to begin with, that the Administration relies greatly upon the Sept. 18, 2001, Authorization of the Use of Military Force (AUMF), as the functional equivalent of a declaration of war to authorize these killings, which is strange when, as often happens the strikes fall in Pakistan and Yemen, places that were not really in the picture in 2001.
As former Attorney General Michael Mukasey (no left-wing naysayer) commented in the Wall Street Journal, the AUMF “is limited, even when expansively read, to those with some connection to [9/11].” When using it to justify going after latter-day Islamic militants, Mukasey correctly observes, “the Obama administration memo goes beyond that 2001 authorization and completely off the rails.”
Mukasey likewise pointed out the memo relies on the inherent right of the United States to self-defense under international law, but overlooks that our “government’s powers are defined by the Constitution, not by international law.” (I would substitute “established” for “defined,” but otherwise agree.) And in any event, because the AUMF was not written to authorize drones in places like Yemen killing people who may have been five years old when AUMF was passed, there is no Congressional declaration of war or anything like it addressing this situation.
So: We now know that fundamentally the Office of Legal Counsel is coloring outside the lines, making up presidential authority where none yet exists. If we were to proceed lawfully, we would need a constitutionally-sound, explicit and bona fide Congressional authorization. (I have been arguing for some time that, 200 years of Supreme Court precedent notwithstanding, the only constitutionally sound authorization is a formal declaration of war, which even a tailor-made AUMF would not be.)
Setting aside legality, we understand better now the thinness — and unfortunately the familiarity — of the central criterion for target choice. That criterion is “imminence.”
The Administration claims the right to kill people even when (and I quote the memo) the U.S. lacks “clear evidence that a specific attack on U.S. persons and interests will take place in the immediate future.” All that is necessary seems to be that the target be:[A]n operational leader of al-Qa’ida or an associated force and is personally and continually involved in planning terrorist attacks …. Moreover, where the al-Qa’ida member in question has recently been involved in activities posing an imminent threat of violent attack … and there is no evidence suggesting that he has renounced or abandoned such activities, that member’s involvement in al-Qa’ida’s continuing terrorist campaign … would support the conclusion that the member poses an imminent threat.”
This sounds uncomfortably like the rationale used to sell us on the Iraq war, in Condoleezza Rice’s infamous phrase: “We don’t want the smoking gun to be a mushroom cloud.” In other words, we so fear the attack that we are willing to wage preemptive war even without a full evidentiary basis for doing so.
We all saw how well that worked with Iraq. Are we doing the same here?
On that score, I would recommend to anyone a Feb. 5 report in the New York Times about the way our drone program plays out on the ground. Stanley McChrystal, former head of the Joint Special Operations Command, and former CIA Director Michael Hayden have suggested that, in the Times’ words: “the drone wars in Pakistan and Yemen are increasingly targeting low-level militants who do not pose a direct threat to the United States.” And as the piece makes clear, the actual victims have often been people who just happened to be in the wrong place at the wrong time, like two unfortunate young men who simply offered a lift to hitchhikers who turned out to be targets.
And even if the drones aren’t killing anyone at the moment, they are often creating intolerable tension in the lands where they are used. “[A] drone hovers over an area for weeks on end before a strike takes place … provoking high anxiety among local people” — both before and afterwards. The Times quoted a local tradesman: “After the drone hit, everyone was so frightened it would come back… Children especially were affected; my 15-year-old daughter refuses to be along and has had to sleep with me and my wife after that.” This obviously is not conducive to our winning the struggle for hearts and minds.
Furthermore, it seems that the preference for the ease and tactical accuracy of drone strikes has led the U.S. not to rely on local forces that could capture or kill targets, like the Yemeni elite counterterrorism unit, trained in the U.S., without inflicting this tension or resentment.
So something looks broken with our targeting process, strongly suggesting — if we are to proceed at all — the desirability of obtaining independent (meaning independent of the president and equipped with veto power) review of targeting decisions.
The memo is breathtakingly complacent about the determination of the Executive to go it alone. It seems that the question of “imminence” is to be determined by “an informed, high-level official of the U.S. government.” And that individual would apparently be the one to determine other imminence “considerations,” including “the possibility of reducing collateral damage to civilians.”
It goes without saying that this “high-level official” would be from the executive branch, unreviewed by anyone from another branch. This seems not to be acceptable anymore, and the Administration is engaging in discussion about how to change it.
In that discussion, some of which has now occurred in Congressional hearings, the realization seems to have gelled that judicial branch review is not ideal, because, as Mukasey put it, “judges have no basis or background that suits them to review targeting decisions and no way to gather facts independently.” Neal Katyal, from the opposite end of the political spectrum, concedes as much. But the question is what else we could substitute.
Without the authority, both theoretical and actual, to countermand, a review tribunal would be useless. That is why we have Foreign Intelligence Surveillance Act courts to approve certain wiretaps. FISA courts could legitimately be subject to Mukasey’s objections as well, and yet we appoint them, because they are at least theoretically independent. But Katyal thinks this tribunal could be housed in the Executive Branch. Of course with a president like George W. Bush, who aggressively pushed the notion of a unitary executive, in which none could be independent of the president, how could we preserve this “executive court’s” independence. Not obvious.
Clearly, a discussion to be continued. At least it’s started. Had the White Paper been released earlier, we might be much further down the road with it.
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 www.thebigpictureandthecloseup.com.