Is the Drone “Rule Book” an Effort to Force Kill-Not-Capture?

After reading the response to Scott Shane’s article on the drone rule book, I wanted to add a few thoughts.

First, much of the treatment of the article treated the description of the rule book itself as news. It’s not. Greg Miller discussed the effort in an article last month.

White House counterterrorism adviser John O. Brennan is seeking to codify the administration’s approach to generating capture/kill lists, part of a broader effort to guide future administrations through the counterterrorism

The news in the Shane article is that the effort to codify the drone program accelerated–and now has lost urgency–because of the possibility that someone like Cofer Black rather than John Brennan would be running the drone program in a Romney Administration.

Facing the possibility that President Obama might not win a second term, his administration accelerated work in the weeks before the election to develop explicit rules for the targeted killing of terrorists by unmanned drones, so that a new president would inherit clear standards and procedures, according to two administration officials.

The matter may have lost some urgency after Nov. 6. But with more than 300 drone strikes and some 2,500 people killed by the Central Intelligence Agency and the military since Mr. Obama first took office, the administration is still pushing to make the rules formal and resolve internal uncertainty and disagreement about exactly when lethal action is justified.

That’s why I’m not sure we should assume that Obama ever intended the rules as limits on what Mitt’s Administration might do.

There are at least two other possibilities.

While it’s unclear whether this rule book effort is just part of or is the same thing as the disposition matrix also described in Miller’s article, that article does make it fairly clear the codification effort strives to make the drone program more permanent, even to streamline it (and to centralize it under oversight-free White House personnel rather than the Joint Chiefs).

Targeted killing is now so routine that the Obama administration has spent much of the past year codifying and streamlining the processes that sustain it.

This year, the White House scrapped a system in which the Pentagon and the National Security Council had overlapping roles in scrutinizing the names being added to U.S. target lists.

Now the system functions like a funnel, starting with input from half a dozen agencies and narrowing through layers of review until proposed revisions are laid on Brennan’s desk, and subsequently presented to the president.
[snip]
For an administration that is the first to embrace targeted killing on a wide scale, officials seem confident that they have devised an approach that is so bureaucratically, legally and morally sound that future administrations will follow suit. [my emphasis]

That is, the rush to implement the rule book may have been an effort to ensure the program’s permanence, to force Mitt to keep it.

And while there’s no doubt he would have (as Miller pointed out in his article), consider the alternative. Mitt’s Administration likely would have included the architect of the torture program, Cofer Black, and a former CIA Director, Michael Hayden, who has repeatedly called for retaining the torture program.

The effort to institutionalize the drone program may have been a bid to sustain the kill-not-capture preference of the Obama Administration (though the “disposition matrix” appears to have been an effort to invent some alternatives for live capture that Obama hasn’t much used). Though any effort to dictate choices to the dangerously creative Black, I suspect, would have been futile.

There’s one other related possibility.

Hayden, in particular, has been vocal about what the choice to end torture has purportedly brought about: precisely that kill-not-capture choice. Even while defending torture, Hayden has been fairly aggressive in noting how much killing the Obama approach has entailed.

Might it be, then, that the effort to draft a set of “rules” for drone killing was really an effort to make the program look more rational and measured than it has been in practice, to put the best spin on it before another bureaucrats from another party got fully briefed on it?

As Shane notes, Obama’s folks still haven’t decided when and how they use drone killing.

Mr. Obama and his advisers are still debating whether remote-control killing should be a measure of last resort against imminent threats to the United States, or a more flexible tool, available to help allied governments attack their enemies or to prevent militants from controlling territory.

So even four years in, the program is in fact an ad hoc mess, even if the Administration claims it is not.

And there are a number of killings or targetings that occurred under the Obama Administration–the incidents where “allies” gave us bad targeting data so we would kill their political rivals, the signature strikes that killed civilians, and even the targeting of Americans whom the intelligence community believed were not yet operational–that might be embarrassing if further details were leaked by the incoming Administration.

These awkward targetings are almost certainly precisely the reason the Administration refuses to make more information about its targeting program public: because they prove the program was never as orderly or legally sound as the Administration publicly claims. So the “rule book,” purporting to show the reasoned deliberations behind these screw-ups, might be one way to spin them as reasoned (and legal). I have suggested that some of the public statements about the drone program might have served as legal cover if ever anyone thought to prosecute Administration officials for killing civilians. Perhaps this “rule book” was designed to do the same?

Thus far, most of the treatment of the “rule book” has presumed it was meant to be prescriptive, and it might well have been. But it’s also possible the “rule book” was meant to be (falsely) descriptive, an effort to spin the program just as a group of potential critics got read into the program.

Update: Matthew Aid’s take on this seems to support my suspicions: this “rule book” is about the eventual review of this program.

A State Department official who recently left his post for a better paying job in the private sector admitted that there is deep concern at State and Justice that sooner or later, a court in the U.S. or in The Hague will issue a ruling on the question of the legality of these missions, which many in Washington fear will go against the U.S. government position that these strikes are legal.

Marcy has been blogging full time since 2007. She’s known for her live-blogging of the Scooter Libby trial, her discovery of the number of times Khalid Sheikh Mohammed was waterboarded, and generally for her weedy analysis of document dumps.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including the Guardian, Salon, and the Progressive, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse and dog in Grand Rapids, MI.

19 replies
  1. rg says:

    Pleased to see this post. Early on I thought that talk about developing a legal architecture meant looking for a structure one could legally live in, suggesting known problems with the status quo. The question of why this was being done did not seem to be to help succeeding administrations find the legal/moral high ground, but to backstop against any backward looking that could become threatening.

  2. JTMinIA says:

    I, personally, never bought the idea that the Obama Admin had any interest in limiting what a Romney Admin could or would do. After all, the single best defense against charges of war-crimes (in the sense of avoiding said charges, not as a legal defense against) is having the administration after your own commit ever more and worse crimes.

  3. karenjj2 says:

    “Legalizing” the assassination of perceived “enemies of the state” is obscene, unConstitutional and outside any rational human’s concept of impartially applied justice.

    Nixon’s statement of: “if the pResident does it, it’s legal” has come full circle.

  4. greengiant says:

    Without even knowing how many of the more than 2500 killed were innocent I suspect the administration’s drone train has not only left the tracks of rationality, in four years the administration won’t be able to leave the US without being charged with a war crime.
    A few people killed here and there, and eventually they and we think it is no longer a crime.

  5. joanneleon says:

    I think there is another possibility.

    When you attempt to automate something, you have to define rules and codify those rules in a system. We know that our Dept of War is interested in robotic killing machines that are fully automated. I know, it almost sounds hyperbolic, sci-fi, or something. But defining rules is one of the first steps toward automation.

    And, well that accountability thing… how do you try a robot for war crimes? Bad apple software developers sent down the river?

    Human Rights Watch:

    (Washington, DC) – Governments should pre-emptively ban fully autonomous weapons because of the danger they pose to civilians in armed conflict, Human Rights Watch said in a report released today. These future weapons, sometimes called “killer robots,” would be able to choose and fire on targets without human intervention.

    The 50-page report, “Losing Humanity: The Case Against Killer Robots,” outlines concerns about these fully autonomous weapons, which would inherently lack human qualities that provide legal and non-legal checks on the killing of civilians. In addition, the obstacles to holding anyone accountable for harm caused by the weapons would weaken the law’s power to deter future violations.
    http://www.hrw.org/news/2012/11/19/ban-killer-robots-it-s-too-late

  6. joanneleon says:

    re: the update

    Well, I guess it’s good to know that somebody is worried about being charged with war crimes, especially since there have been so many mentions of them, questions about it, internationally and a UN special rapporteur who said that they might be. That was back in the summer, IIRC. Was that when the rule book work started?

    Still, those activities happened before the “rule book” was put in place, no? Are they going to try to say that they went by these rules all along?

    And John Brennan is still flat out lying about killing civilians.

    He insisted that it wasn’t true, that we weren’t harming civilians. “But we met with people who lost their children, their fathers, their loved ones—we have photos of little children….”
    […]
    “It’s just not true,” he repeated, dismissively. “You are being manipulated.”
    http://www.alternet.org/world/were-killing-little-children-pakistan-what-i-told-obamas-counter-terror-chief-his-virginia?page=0%2C1

    Then again, why worry? Good progressive bloggers, and people like Daniel Ellsberg, were still out there telling people to reelect anyway. War crimes? What war crimes? Four more years of war crimes!

  7. bmaz says:

    @karenjj2: I don’t know about the blanket application of the term “unconstitutional”. If you are referring to American citizens or subjects then, yes, that is arguably correct. If you are talking about foreign subjects outside of the formal US territory, it most certainly is not, as the Constitution does not apply to those. Certain provisions of international law, international human rights law and/or the law of war may, or may not, apply and make it “illegal”, but the Constitution is not determinative.

  8. nomolos says:

    Frankly I do not see that it matters one whit to this administration, or any other american administration, as to whether drones are “legal” or not.

    Torture, cluster bombing, invading other countries, arbitrary murder and indefinite incarceration with no trial are all part of the american playbook.

    Human rights, common decency and the Geneva Convention let alone rulings from the International Court are scoffed at by america. One can only hope that the american disregard of laws will come back and bite them, hard.

  9. marksb says:

    @bmaz: That’s what I got when I went paging through the Tubes this morning, after reading this post. Constitutional due process applies to our citizens, or (slightly less accepted) non-citizens who are residents. It’s the international law where this totalitarian-leaning set of policies break down.
    There’s an interesting paper from Georgetown on due process and foreigners here
    http://scholarship.law.georgetown.edu/cgi/viewcontent.cgi?article=1302&context=facpub

    A quick quote:
    “The International Covenant on Civil and Political Rights similarly extends its protections generally to noncitizens; the Human Rights Committee’s authoritative commentary provides that “in general, the rights set forth in the Covenant apply to everyone … and irrespective of his or her nationality or statelessness. “23 These principles are also reflected in the Declaration on the Human Rights of Individuals Who are Not Nationals of the Country in which They Live, adopted by the U.N. General Assembly in 1985. It expressly guarantees to non-nationals, among other rights, the right to life, the right not to be subjected to arbitrary arrest or torture, due process, equality before the courts, and the freedoms of thought, opinion, conscience, religion, and expression.”

  10. marksb says:

    @marksb: BTW I think the entire paper is reviewing rights within our country, not the rights of non-citizens in another country, who we choose to blow up without due process, based on their names being on an approved list.

  11. DonS says:

    [cross posted from comment on FDL yesterday]

    My impression is that the administration already thinks the killings, by drones or otherwise, are legal, maybe under the AUMF, (it’s us sticklers who think it’s not) — they surely wouldn’t EVER admit to it’s being not legal. The extra-judicial part is just nitpicking what’s already legal they would say. The architecture part simply fleshes out internal procedures. Whether they would have the force of law, that may be another question. But as to the “legality”, methinks that memo already exists.

    So there may be at least two questions: extrajudicial killing under US law(particularly of US citizens); and use of drones under international law. Here’s an article that deals primarily with the international law aspect.

    http://www.cfr.org/counterterrorism/targeted-killings/p9627

    As to the international aspects, a government that thumbs it’s nose at torture — clearly a violation of international law — will have no problem with rationales for drones.

    Update: How damning is it that it is the US — and of course our mini-me Israel — that has taken to using drone for wholesale killing. I imagine the US govt would be upset if some other state, say Iran, were to pilot a fleet of drone down Independence avenue, between the WH and the Capitol, letting loose a few well targeted missiles.

    Think about it for a minute. We, exceptionalists to the hilt, have introduced, perfected, a new way of killing. And, of course, we call ourselves a peace-loving people. Oh the Orwellian irony.

    I find it harder all the time not to be disgusted with our government. They, those in our government who are responsible for this killing in our name, dishonor American citizens. And what does it say about our “allies” who wont stand up to our barbarity?

  12. DonS says:

    I imagine most may have seen the Greenwald piece on this, but I’ll put up a link none the less. I can hardly bring myself to read his complete exegesis, and don’t think his is the last word, but there it is. Here’s a brief excerpt homing in on the reliance on “the Good Obama” meme, and the corruption of principle:

    “This mindset is so recognizable because it is also what drove Bush followers for years as they defended his seizures of unchecked authority and secrecy powers. Those who spent years arguing against the Bush/Cheney seizure of extremist powers always confronted this mentality at bottom, once the pseudo-intellectual justifications were debunked: George Bush is a Good man and a noble leader who can be trusted to exercise these powers in secret and with no checks, because he only wants to keep us safe and will only target the Terrorists.

    “Molded by exactly the same species of drooling presidential hagiography now so prevalent in progressive circles – compare this from the Bush era to things like this and this – conservatives believed that Bush was a good man and a great leader and thus needed no safeguards or transparency. If Bush wanted to eavesdrop on someone, or wanted to imprison someone, then – solely by virtue of his decree – we could and should assume the person was a Terrorist, or at least there was ample evidence to believe he was.

    “We were graced with a leader we could trust to exercise unlimited war powers in the dark. This is precisely the same mentality applied by Democrats (and by Obama himself) to the current President, except it not only justifies due-process-free eavesdropping and detention but also execution.”

    http://www.guardian.co.uk/commentisfree/2012/nov/26/obama-drones-kill-list-framework

  13. earlofhuntingdon says:

    Your views are consistent with one of Mr. Obama’s defining characteristics: his relentless efforts to make permanent and routine Mr. Bush’s grossest executive and legal excesses.

  14. Eric Hodgdon says:

    Social chat clubs are not what I seek.

    Awareness across the country with dedicated rational and reasonable people who understand the issues and will spend the time and effort required to cause and effect a return to proper federal government is one aim of mine.

    ( maybe it’s my directness and extreme sounding manner which puts off people. granted one year is not enough time to understand this way of communicating with strangers.)

  15. Eric Hodgdon says:

    @bmaz: I do not lecture, or suggest lecturing on what people do or don’t do. I’m seeking a higher effort from other people. If they aren’t here, then I’ll go.

    4 months time spent understanding these blog sites as information outlets, which is good for the better coverage and expanse of view, for issues of the day. And those with comment sections help clarify people’s interpretations, while demonstrating the range of views.

    However, by stopping at that stage, the talk about it stage, seems to indicate a certain amount of reluctance people have in being a better citizen, a citizen who while do more than discuss an issue which perhaps requires greater amount of thought and concern.

    Many problems today, I think come from, partly, the absence of citizen participation in what their governments are doing. While there are several levels of government, by us communicating via the Internet, is to have us address these common issues we would not otherwise be able to discuss. And some of these issues have common foundational elements which are traceable back to a specific time when something changed which led to an increase in the disruption of proper government and society.

    One such, I strongly reason, is the representation shortage in the House of Representatives. After I reasoned what I was looking at, I found http://www.thirty-thousand.org where someone has done the work to show people this issue and its effects to us. Just last week two people mentioned, via comments, the lack of an ability to be heard by their reps. This lack is real and it’s destroying the functioning of the country. The representation issue has directly made our presence as citizens worthless except for one day every 2 years, and even that is questionable as to our true worth to this system and to each other.

    I don’t pretend to be able to change this problem on my own, or influence my fellow citizens to take on this issue, but at least I’m trying to do so, when a correlation is seen for me to then say something. And, sometimes I need to make the case directly by indirection. Some people take exception to my expression of impatience.

    Our lives are too short and our future too long to let the framework of how we operate and conduct ourselves to be screwed with by some dandy elected to our federal government to go by without a serious mind and body check on them.

    Our system works better when citizens take themselves seriously regarding participation, and when they know how important they are at times, to enable their role in making their system work.

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