Using drones: principles, tactics and results (amended title)

[jmm99]

AP broke this story on Monday, when Lawfare's Jack Goldsmith filed a very short comment, U.S. Citizen Possibly Targeted for Drone Attack, with a short snip from the AP story:

Kimberly Dozier AP reports this morning that “[a]n American citizen who is a member of al-Qaida is actively planning attacks against Americans overseas, . . . and the Obama administration is wrestling with whether to kill him with a drone strike and how to do so legally under its new stricter targeting policy issued last year.” Dozier makes it seem like the Obama administration’s drone policy is tying it in knots ...

from Dozier AP

The CIA drones watching him cannot strike because he’s a U.S. citizen and the Justice Department must build a case against him, a task it hasn’t completed.

Four U.S. officials said the American suspected terrorist is in a country that refuses U.S. military action on its soil and that has proved unable to go after him. And President Barack Obama’s new policy says American suspected terrorists overseas can only be killed by the military, not the CIA, creating a policy conundrum for the White House.

Two of the officials described the man as an al-Qaida facilitator who has been directly responsible for deadly attacks against U.S. citizens overseas and who continues to plan attacks against them that would use improvised explosive devices.

But one U.S. official said the Defense Department was divided over whether the man is dangerous enough to merit the potential domestic fallout of killing an American without charging him with a crime or trying him, and the potential international fallout of such an operation in a country that has been resistant to U.S. action.

Another of the U.S. officials said the Pentagon did ultimately decide to recommend lethal action.

The Dozier story is longer, Obama Officials Weigh Drone Attack on US Suspect, with multiple reader comments.

The NYT and WSJ (pay wall) chimed in this morning, which caused Jack to author, Reactions to Stories on Possible New U.S. Citizen Strike, with some caustic comments:

The NYT says that President Obama’s announcement last May of an intention “to gradually shift drone operations from the C.I.A. to the Pentagon” was designed in part “to make them more transparent.” The theory, I think, was that CIA strikes are covert and cannot be confirmed, while DOD strikes need not be covert and in theory can be subject to open government discussion and greater scrutiny. There have always been problems with this theory.

One is that DOD is no more transparent than CIA concerning its drone strike practices; if anything, measured by official openness and proneness to leak, it is less transparent. A shift to DOD means a (possible) shift away from the cloak of covert action and thus makes it possible for more American openness about drone strikes, but it does not guarantee more openness – as the lack of transparency about DOD strikes since last May makes plain.

Another problem with the ostensible transfer to DOD is that, for reasons I do not appreciate, DOD seems to make many more targeting errors than CIA. Mazzetti made this point in his book (as summarized here; JMM: book review by Jack), and as recently as last December, an errant drone strike “carried out by the Defense Department’s Joint Special Operations Command, not the CIA” mistakenly killed a dozen people in Yemen. (Consistent with the first point, DOD has had no public comment on this errant strike.)

The NYT says that the President’s classified drone strike policy, which lays down a preference for DOD over CIA strikes, “allow exceptions if necessary.” We should not be too cynical about this – presumptions can have bite even if they can be overcome. (That said, there is something odd about a debate on the front pages of the leading newspapers, all based on leaks, about classified drone policies that aim for but do not achieve more transparency.)

The WSJ says that because the targeting “suspect is an American, agency officials were required under the new drone policy to submit the name for review.” It is not clear why or how this policy is new. By all accounts, the only other intentional strike of an American citizen, against Anwar Al-Awlaki, was preceded by extensive DOJ legal review.

The WSJ also says: “Some officials believe that while a military strike has a stronger legal basis, a CIA strike would be easier to carry out in a country that won’t accede to a U.S. strike.” We have discussed this point before and I still don’t get it. Assuming that the same targeting rules apply, including the same jus in bello scrutiny, I do not see why a DOD strike would have a stronger legal basis under domestic or international law.

Perhaps a hint lies in this statement in the WSJ: “The military can only conduct strikes in countries where the government assents.” That statement is clearly false – Iraq did not assent in 2003, nor did Yugoslavia in 1999; and moreover, Special Operations forces operate in many countries, and DOD sometimes operates covertly.

But perhaps the statement is getting at this difference between CIA and DOD strikes: DOD will not act in ways that it believes violate the UN Charter, while the CIA will do so. Does that mean that concerns about the differential legality of a DOD as opposed to a CIA strike in Pakistan implies that the USG lacks Pakistan consent or an adequate self-defense argument under the UN Charter, and thus thinks it would be violating international law (the Charter) in carrying out such a strike?

Resources on targeted killing (direct actions and drone strikes), both as to its national and international political and legal aspects, including something of an over-emphasis on US citizens (4 have been killed; 3 as collateral deaths), are easy enough to find.

Thus, at Lawfare, The Lawfare Wiki Document Library - Targeted Killing, which leads to more linked documents than most readers probably want.

At SWC, we have besides this thread (more on the political aspects), the thread The Rules - Engaging HVTs & OBL (more on the rules of engagement, including US citizens; the discussion is less formalized than Lawfare).

Regards

Mike

PS: I note my ambiguity in my prior post in this pair of sentences:

Having said all that, there are many opponents of the AUMF in general; of direct actions and drone strikes in particular; and of using direct actions and drone strikes to kill American citizens in foreign countries, even when they are combatant members of an enemy force. The Obama administration itself has many such opponents; and the President himself seems "intellectually divided" in this and related areas.

The last sentence would be clearer written as: The Obama administration itself includes many such opponents; and the President himself seems "intellectually divided" in this and related areas.