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.

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7 Responses to Our Illegal Drone Program

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Emptywheel Twitterverse
bmaz RT @JoshMankiewicz: My father Frank Mankiewicz has passed away after a wonderful life. He was the best dad I could ever have wished for. ht…
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bmaz @BernardKingIII Only thing it ever got me was in contempt. Which was thankfully dropped by judge when guilty verdict returned.
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bmaz @KanysLupin @MonaHol @normative @trevortimm @onekade @FareedZakaria Yeah, starry eyed people like to talk nullification, but doesn't happen
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bmaz @BernardKingIII I mean, seriously, only law professors would come up with that theoretical drivel. And Zakaria still screwed it up.
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bmaz @MonaHol @KanysLupin @normative @trevortimm @onekade @FareedZakaria If so, you should be prosecuted for perjury.
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bmaz @McBlondeLand @nycsouthpaw Was also a real thing in southern Arizona back in late 80's - 90's Biosphere: http://t.co/YrTSfTqpVI
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bmaz @MonaHol @normative @trevortimm @onekade @FareedZakaria Rule 24 leaves discretion on void dire method to court. Some do it some let attys
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bmaz @GrantWoods Seconded. Body broke down before his heart did.
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bmaz @normative @MonaHol @trevortimm @onekade @FareedZakaria But they don't. Juries are told MUST follow the law, and they try very hard to do so
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bmaz @trevortimm @mattapuzzo @FareedZakaria Rules of evidence have evolved quite a bit since then, but not in ways likely to get much motive in.
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bmaz @trevortimm @onekade @FareedZakaria In fairness, his experts don't seem to fully grasp the realities of such a trial really either.
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