On Drone Rule Books and Breaking the Rules

Back when we first learned that the CIA had killed an American (and an Italian) hostage in a January drone strike that also killed American, I predicted, based on posts like this and this, we would learn that Obama was never applying the rules in Pakistan because (as Jim had already pointed out) John Brennan has a way of exempting himself from the rules.

Q: 2 yrs ago, Klaidman reported it’d take several yrs to adopt drone rule book, w/PK being last. Do we know they purportedly did apply it?

And in any case, Brennan kind of exempted himself. Because moral rectitude. So very likely this is abt Brennan exempting himself fr rules.

Sure enough, WSJ reported yesterday that Obama had exempted Pakistan.

Mr. Obama in a 2013 speech at the National Defense University spelled out some rules governing drone strikes, which he codified in a “presidential policy guidance” directive.

Among them were that the threat needed to be imminent and that the U.S. had to have “near-certainty” no civilians would be killed or injured. Officials said the directive also included language aimed at curbing and eventually eliminating a particular type of drone strike in which the U.S. believes an individual is a militant, but doesn’t know his identity.

These so-called “signature” strikes have been responsible for killing more al Qaeda leadership targets than strikes directly targeting high-value leaders, especially in Pakistan, where the group’s leadership can be difficult to find, current and former U.S. officials said.

The Jan. 15 strike that killed Messrs. Weinstein and Lo Porto was a signature strike.

Under a classified addendum to the directive approved by Mr. Obama, however, the CIA’s drone program in Pakistan was exempted from the “imminent threat” requirement, at least until U.S. forces completed their pullout from Afghanistan.

The exemption in the case of Pakistan means that the CIA can do signature strikes and more targeted drone attacks on militant leaders who have been identified without collecting specific evidence that the target poses an imminent threat to the U.S. Being part of the al Qaeda core in Pakistan is justification enough in the Obama administration’s eyes.

This has led people to note that you simply can’t trust what the Executive does via Executive Order or Presidential Policy Guidance, as in this Daphne Eviatar post that goes onto to talk about secrecy generally.

But we’ve known all along that the president’s statement in his 2013 speech was just a policy preference. It was never an actual limitation on the use of drones, or more importantly, on the use of lethal weapons to kill suspected terrorists.

Since Obama has proven untrustworthy in his 2013 PPD on drones, we should assume he has kept similar secret exemptions under PPD-28, which purports to rein in surveillance.

You should never trust a President Order to mean what it says because the Executive has self-exempted itself from honesty.

Which leads me to what I noted the other day. On top of the tragedy of Warren Weinstein’s death, I still think the circumstances of Faruq’s targeting are … suspicious.

Particularly given that the last confirmed head of OLC, Virginia Seitz, left quietly at the end of 2013 because — anonymous sources suggested to Carrie Johnson — she was unwilling to authorize the drone death of some American(s).

Two other sources suggested that aside from the tough work, another issue weighed heavily on her mind over the past several months: the question of whether and when the U.S. can target its own citizens overseas with a weaponized drone or missile attack. American officials are considering such a strike against at least one citizen linked to al-Qaida, the sources said.

A law enforcement source told NPR the controversy over the use of drones against Americans in foreign lands did not play a major role in Seitz’s decision to leave government, since the Office of Legal Counsel is continuing to do legal analysis of the issue and there was no firm conclusion to which she may have objected or disagreed.

Particularly given the hoops the White House is jumping through regarding precisely what they were targeting, given the fact that they appear to be claiming they’ve only confirmed Faruq was an al Qaeda leader, this appears to suggest DOJ had a lot of disagreement over whether some of these men could be targeted.

Or who knows?

Maybe OLC has subsequently approved what I’ve dubbed the Sitting in a Baddie Compound authorization for executing Americans?

10 replies
  1. Don Bacon says:

    “But we’ve known all along that the president’s statement in his 2013 speech was just a policy preference….Maybe OLC has subsequently approved…”
    This all goes back to “executive privilege” which is a concocted false concept that the President has powers not authorized by law, when in fact there is no basis in the Constitution for such a “Decider” in Washington.
    So in that sense it really doesn’t matter what the President said or didn’t say. This is not a country to be governed in its domestic or foreign dealings by what the President proclaims. At least that’s the theory. This is why we have a Congress representing citizens and making laws to govern the country in all its various performances of policy.
    And the OLC? Let’s not even go there. Since when should this country be governed by the President’s lawyers.
    We had an actual active Congress back in the 70’s which put a stop to assassinations. Would that we had one now.

  2. Jeff Kaye says:

    Re Not believing what exec orders claim to say, connect the dots in your story to the fate of Executive Order 13491.

    LTC Breasseale explained in an email response to my query last year:

    Executive Order (EO) 13491 did not withdraw “‘All executive directives, orders, and regulations… from September 11, 2001, to January 20, 2009, concerning detention or the interrogation of detained individuals.’” It revoked all executive directives, orders, and regulations that were inconsistent with EO 13491, as determined by the Attorney General…. [bold emphasis added]

    One last point – you seem suggest below that EO 13491 somehow cancelled Steven Bradbury’s legal review of the FM. EO 13491 did not cancel Mr. Bradbury’s legal review of the FM.”

    When I then asked the Department of Justice to confirm what Breasseale had said for a story on the Bradbury memo, spokesman Dean Boyd wrote to tell me, “We have no comment for your story.” The fact Boyd did not object to Breasseale’s statement seems to validate the DoD spokesman’s statement.


  3. GKJames says:

    Is it just me or is there a palpable sense of the White House not really caring much anymore about legality or hesitations at DOJ (to the extent they exist)? We know Obama’s mastered the art of distracting with noble words and then continuing to do the opposite. Given the absence of sustained criticism of his killing program, there’s zero incentive for him to do anything else.

  4. Don Bacon says:

    An excellent reference book on executive privilege is “With the stroke of a Pen” by Kenneth R. Mayer. He traces the growth of executive orders and presidential power.
    Presidents have increasingly acted with authority, especially in foreign affairs. They were helped by a 1936 Supreme Court finding, U.S. vs. Curtiss-Wright…Theodore Roosevelt explicitly stated that the president could act unless the Constitution or the law espoecially forbade it. But even prior to that, Lincoln had acted dictatorily.
    But these acts were often taken because of a great impending danger, when it was impractical for the congress to act.
    Surely this assumed presidential prerogative has been abused more recently. The worst abuse, it seems to me, is the current thirty (30) US national emergencies established and sustained by executive order. These include: Cote d’Ivoire – “While the Government of Côte d’Ivoire and its people continue to make progress towards peace and prosperity, the situation in or in relation to Côte d’Ivoire continues to pose an unusual and extraordinary threat to the national security and foreign policy of the United States. “–Sure.

  5. Evangelista says:

    In the late eleventh century a cult joined the fray in the so-called ” Holy Land”, where Christian Crusaders were invaders determined to own the “Holy Land”, especially Jerusalem. The cult became known as ” Assassins”. The Assassins’ modus operandi was murder of leaders. There were no UAV aircraft then, pigeons and hawks being the nearst things, with the pigeons carrying messages mostly, but occasionally bombing, but randomly, and with irritating (to the target) and humorous (to everyone else) results, nor ‘Hellfire’ missiles, so the “assassins”, in the twentieth century known as “torpedoes”, in the 21st century called “drones” were ground-bound, had to infiltrate instead of over-fly, and employed daggers instead of incendiary exposives. They did a lot less peripheral damage, which might make nostalgists look back wistfully.

    The assassins of the twelfth century, the cult’s heyday, were feared and hated. They did manage to terrorize, but, like the Thuggee of India, they were looked on with loathing by nearly everyone not members of their particular cult, including the less fanatical and more rational who shared their religious views.

    The Assassin danger was terminated by the Mongols in the thirteenth century. The Mongols are associated to China.

    If history repeats, as it is often asserted to, we may see, in the historical record a few centuries in future, a repetition in this instance, too, if, for instance, the Chinese foreclose on United States debt after the dollar collapses, when they might want possession of real estate in lieu of worthless green and pinkish-orange paper, provided we are ale to steer them toward Washington and Virginia and insist they wall in and wipe out all with, then, no visible means of support, meaning all there dependent on government paychecks, which will, with the collapse, be denominated in worthless denominata.

    In the twentieth century instance, when the “drones” were “torpedoes” and ground-bound, but used guns, there was an organization called the FBI that played the Mongol-Horde part, but, as so oftenhappens in history, since then the FBI has degenerated to a phalanx of fairy TV story producers, and butter-boys or the twentyfirst century drone-assassin cult.

    These turn-overs, in real-time history, take some time, but, fortunately, there is a lot of written past history we can read to entertain ourselves, and lots of real-time unrest event stuff to watch on TV, though the quality of the reality-show in-the-field war mock-doc-dramas are not up to what the old Hollywood guys could produce on back-lots. Somehow it seems that it’s only the human stupidity that holds up in consistent quality century after century.

    • Don Bacon says:

      Thanks for that.
      “The assassins of the twelfth century … were looked on with loathing”
      That’s appropriate, and fits Obama. It’s a terrible occupation, and he lacks character. Opportunists make good assassins, apparently.

  6. wallace says:

    quote”Maybe OLC has subsequently approved what I’ve dubbed the Sitting in a Baddie Compound authorization for executing Americans?”unquote

    Which actually means the CIA assassins KNEW the hostages were in there. I’ve got $25 that says so. Any takers? Might take a while to prove it. But that’s my bet. They don’t give a fuck which side of the fence “collateral damage” is on. As long as they get their “imminent danger” target.

    • RUKidding says:

      Won’t take your bet, as I believe you’d win. CIA doesn’t give a shit who gets killed anymore, if they ever did. It’s all fun ‘n games for them. Any useless eaters who get killed in the cross fire? Oh well. Too bad, so sad, get used to it.

  7. Don Bacon says:


    WASHINGTON – A top CIA manager who had been removed from his job last year for abusive management has been named to a senior role in the agency’s department that conducts drone strikes.

    Forty-seven-year-old Jonathan Bank has been installed as deputy chief for counterintelligence at the Counter Terrorism Center, or CTC. The CTC conducts the agency’s operations against al-Qaida, the Islamic State and other groups. His job involves supervising a team charged with protecting CTC operations by ferreting out spies, double agents, bad tradecraft and other security risks.

    Bank was ousted as the head of the agency’s Iran operations division at CIA headquarters a year ago after an internal investigation found he had created an abusive and hostile work environment that put the crucial department in disarray.

    What could go wrong?

    • RUKidding says:

      Ah I see the Ye Olde Fed Govt Kick ‘Em Upstairs gambit is still alive & well within the Old Boys Network. I’ve seen this in operation before but within an agency where the collateral damage was less deadly (but still unpleasant for all concerned). Yes, what could possible go wrong?

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