Our Illegal Drone Program

Here’s Daniel Klaidman’s idea of a rule book that represents restraint.

And then there is “the playbook”—an ambitious attempt to create explicit rules and procedures for when lethal force is justified. The initiative began more than a year ago. It is highly detailed and lays out, for example, criteria for the so-called disposition-matrix, which prescribes whether terrorist suspects should be killed, captured, or dealt with in some other way. Embedded in the document are the legal authorizations for pursuing the enemy away from conventional battlefields in places like Yemen, Somalia, and now Mali—a crucial check on a war without defined boundaries. The playbook also toughens the standard for when a targeted killing is justified. Simply being a threat to “United States interests,” for example, no longer meets the threshold. That standard is too elastic, according to officials who have been involved in writing the new rules. And the document makes finely grained distinctions about where one must be in the chain of command of a terrorist organization to be targetable. A driver or cook, who can be easily replaced, may not represent the kind of unique threat that would warrant lethal action. A bomb maker, on the other hand, would.

Mind you, as described, the Rule Book does represent an improvement. I’ve noted that the disposition matrix may or may not be a good thing; while legal process is better than drone killing, we may still have the trigger for that set too low.

But the real news in this passage seems to be both what was permitted and what still is.

Klaidman reveals, for example, that the standard for killing has been nothing more than threatening US interests, which may or may not even equate to a physical threat. We’re killing people because they represent a threat to our interests? Isn’t that cheating?

He strongly suggests we’ve been targeting all manner of alleged terrorists, including cooks and drivers. And we’ve changed that practice not because of the dubious legality of targeting non-combatants, but because cooks are easily replaced.

But even still the drone program seems to be illegal. Consider this passage.

Embedded in the document are the legal authorizations for pursuing the enemy away from conventional battlefields in places like Yemen, Somalia, and now Mali—a crucial check on a war without defined boundaries.

As Jack Goldsmith has recently noted, AQIM is not covered in the AUMF.

This framework is becoming obsolete because some newly threatening Islamist terrorist groups do not plausibly fall within the AUMF.  Many of these groups—such as al Qaeda in the Islamic Maghreb (in Northern Africa) or the al-Nusra Front (a rebel group in Syria associated with al Qaeda in Iraq)—have no direct links to al Qaeda and unclear ones to al Qaeda affiliates.  Regardless of where the precise outer boundaries of the AUMF lie, there is a growing gap between the threats posed by Islamist terrorist groups and the president’s legal authority to meet the threats under the AUMF.

So if we’re targeting people in Mali as part of a war, whose authorization are we using for that war?

And as Klaidman notes and was reported earlier by the WaPo, these rules will not even go into place universally. We’ve built in an exception for Pakistan (which, unless the Senate does something totally unexpected, means for John Brennan at CIA). Which means presumably these things — targeting cooks for being a threat to our interests — will continue in Pakistan at least until we withdraw from Afghanistan.

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.

7 replies
  1. Arbusto says:

    Perhaps the analysts have found a way to get even for a bad meal. As to pushing the boundaries of the AUMF, as Obama LLC is wont to do, Congress, even the most anti Obama and racist in the GOP, will support their benefactors in the remotely piloted community such as Lockheed Martin and and General Dynamics. Viva never ending war and blow back be damned.

  2. liberalrob says:

    As “The Hunt for Red October” and “Under Siege” have clearly demonstrated, cooks can be particularly ingenious and destructive. There was probably a cook on Seal Team 6.

  3. GKJames says:

    “Klaidman reveals, for example, that the standard for killing has been nothing more than threatening US interests, which may or may not even equate to a physical threat. We’re killing people because they represent a threat to our interests?”

    That goes to the heart of the problem. Whoever’s in charge has the latitude to define “threat” as he sees fit. (Find us an American in the Executive Branch who wouldn’t define it as broadly and loosely as possible for the greatest “flexibility.”) The net effect is that the White House can conflate into a “threat” all manner of unrelated factoids to justify a killing. The epitome is the al-Awlaki case and all the babble about his having gone “operational” when he likely was assassinated because the Administration was annoyed by the clarity and effectiveness of his propagandizing.

    Problem is, based on the absence of widespread objection, there appears to be a national consensus that “threat” be deemed to include anything that might be adverse to US “interests” and that it’s legitimate to kill people to protect those interests . . . whatever they are.

  4. What Constitution? says:

    @GKJames: Exactly. Did it ever occur to Klaidman that if somebody did in fact employ a “standard” for military assassination as “Simply being a threat to ‘United States interests'”, just maybe there would be no possible justification for such an “authorization” under the AUMF, the Constitution, the Gulf of Tonkin Resolution, the Trilateralist Commission Handbook, the Communist Manifesto, or The Sound of Music? Seriously? That’s what they were thinking? Now, if that’s true then maybe that’s another reason why the Obama administration would rather call shit like this a “state secret” — kind of like unicorns — but maybe that’s also another reason why just maybe shit like this shouldn’t be allowed to happen in secret. Good question for Brennan’s oversight hearing, though: “Mr. Brennan, how many assassinations have you approved based upon a standard of whether the target was perceived by you as “a threat to United States’ interests?”

  5. Simplify says:

    The “Playbook” is such a fool’s errand. Government officials should have no legitate power outside what law under the Constitution provides, and yet the whole point of this exercise is to pretend that extralegal (i.e. illegal) assassinations fall under a legitimate legal framework. An even more elaborate and beautiful new outfit on the emperor. The true standard is, “We’ll kill whomever we see fit, and there’s nothing you can do about it.”

    The tell is that there’s no accountability mechanism, no punishment for exceeding even this absurdly permissive “authority.”

  6. joanneleon says:

    I read the DailyBeast article to my fiance and at least three times we burst out laughing.

    Article seems to have been written in honor of Marcy and Glenn Greenwald. Marvelous propaganda.

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