The much anticipated Department of Justice memo authorizing the use of drones to target Americans….scratch that. A white paper from the Department of Justice outlined what might be the U.S. government’s position with regards to the killing of Americans via the use of unmanned drones.
Twitter erupted with claims that this memo provided the President unprecedented powers to kill any American, anywhere, for any reason. Well, I read the memo, and I’m fairly certain that is not what it said. (I think @blakehounshell was the first to point this out.) However, in reading this memo, which may or may not exactly detail U.S. policy, I did identify four important points for Americans if they want to avoid getting a warhead to the forehead.
Americans, if you are trying to avoid being transformed into a red mist;
- Don’t join al Qaeda outside the United States- Who knew that if you are an American and you decide to join al Qaeda that you might get smacked in the face with a Hellfire missile. Unbelievable, the nerve of the American government to hold a grudge for so long. Can you believe the Executive Branch would be willing to kill members of the terrorist organization, including American members, that committed the largest terrorist attack in history on American soil? Absolutely absurd! However, simply being a member of al Qaeda won’t necessarily get a drone sortie on your hut.
- Don’t become a Senior Leader of al Qaeda overseas - Even more shocking, if you are an American citizen and you join al Qaeda, and then later, you become one of the senior leaders of that organization, you might just wake up to a mouthful of hell’s fire! Unbelievable! To think that you could join a terrorist group and openly advocate for the killing of your fellow citizens, and then be so good at promoting terrorism against your homeland that you would be honored by al Qaeda with a promotion….to think you could then be killed for that promotion. I can’t imagine. Who are these barbarians?
- Don’t actively plan to kill or actually attempt to kill Americans – It turns out that if you are an American and you join al Qaeda overseas and then you plan to kill or actually try to kill Americans, you could get shot in the face with a missile. Ridiculous. What right do U.S. citizens have to try and prevent terrorists from attacking them? Surely if you join al Qaeda, recruit a guy off the Internet, and then help wrap his junk with explosives before setting him off to take down an airplane over Detroit on Christmas day, you should be allowed to hide out overseas and enjoy another opportunity to try a better, more sophisticated attack against the U.S., right?
- Don’t make it difficult to be arrested - This is where the white paper gets completely ludicrous. It seems that if the U.S. government cannot figure out a way to arrest you since you’ve joined al Qaeda, been promoted, tried to attack the U.S. and have been hiding in a failed state with no functioning law enforcement, they will then maybe send a drone after you. How insulting! How is this possibly fair to American terrorists that join al Qaeda?
Unlike the folks I witnessed on Twitter suggesting this document provides the President unbounded power to kill Americans, I see the inverse – a legal opinion particularly crafted to pursue one Anwar al-Awlaki. As has been seen in other public domains, Awlaki, an American, served as the head of external operations for AQAP in Yemen (a senior leader position), was being considered for promotion to head of AQAP (a more senior position) and was actively participating in plots to attack the U.S. (See Underwear Bomber). This uniquely qualifies him for targeting according to this white paper. The question should now be: what other Americans could be legally targeted by the U.S.? Adam Gadahn maybe? The list seems to be fairly short and not expansive in the way suggested by drone conspiracy theorists.
Drone critics – what do you want?
Look anti-drone critics, I get it. You are worried that the President might become Judge Dredd - prosecutor, judge and executioner without any oversight. I understand this. I also know you have seen the Terminator one too many times and feel as if drones are somehow autonomous killing machines different from other technology the U.S. has used to carry out airstrikes for decades (namely cruise missiles & manned aircraft). However, drones have proven highly effective at dismantling al Qaeda in its safe havens – Bin Laden himself attested to their effectiveness. Drones have also limited the large scale military interventions you so ardently protested against the past decade. While you continue to call for a “law enforcement” only approach where each individual is indicted, captured and convicted, this one system fits all approach just doesn’t fly in the modern age of warfare. Terrorists use the limitations of “law enforcement only” approaches to their advantage. At the same time, the “law enforcement only” approach requires a detention policy and an extradition policy. Drone critics, you also didn’t seem to like Guantanamo Bay or renditions either (See “Counterterrorism 2012: No Drones, No Rendition, No Detention“). When someone actually tried to put a structure in place to legally and morally conduct counterterrorism with the appropriate amount of force to sustain pressure against terrorists (John Brennan and the “Disposition Matrix”), you punched him straight in the face and are now threatening his nomination to Director of the CIA. Drone critics: you are being ignored because you are against all actions. You are thus advocates for inaction. And inaction cannot be our counterterrorism strategy.
Drone critics – Give us your plan
The biggest thing holding back drone critics is their inability to articulate, in clear terms, what exactly they would like the policy to be with regards to the use of drones – “Indict, Arrest and Convict” just doesn’t cut it. Likewise drone critics, you have not done sufficient research into what happens if we don’t use drone strikes to pursue terrorists – namely that it pushes the U.S. to use proxies (foreign militaries and local militias) in the pursuit of al Qaeda and its affiliates. Make sure you are comfortable with the counterterrorism options you are indirectly supporting by taking drone operations off the table.
I’ve had some productive discourse with Greg Johnsen and Frank Cilluffo and I have written some longer pieces on drones which can be found at these eight links (#1, #2, #3, #4, #5, #6, #7, #8). But again, I’ll re-post my recommendations for creating an improved and more accountable drone targeting process. Drone critics: take any of these and run with them. Refute them if you want. But whatever you do, please offer solutions to what you want the drone process to be. Otherwise you will continue to be ignored.
Here’s an excerpt from “The “Disposition Matrix” – Drones, Counterterrorism & National Security for the next decade” posted on October 25, 2012.
“There are several points where I think drone targeting, and counterterrorism more broadly, can be improved and refined.
- Detention Policy – We don’t have one!
The article states:
“Obama’s decision to shutter the CIA’s secret prisons ended a program that had become a source of international scorn, but it also complicated the pursuit of terrorists. Unless a suspect surfaced in the sights of a drone in Pakistan or Yemen, the United States had to scramble to figure out what to do.”
For drone critics, I noted this past summer the lack of a detention policy has led the U.S. to pursue more drone strikes. U.S. counterterrorism planners are restricted from or encouraged not to do the following:
- Detain terrorists and send them to Guantanamo Bay – a good thing.
- Conduct renditions of terrorists and ship them to black site prisons – probably a good thing.
- Detain terrorists and turn them over to their home countries if they might be subjected to torture – a likely occurrence with respect to virtually all of our Middle Eastern, North Africa or South Asian counterterrorism partners.
So what is the counterterrorism planner to do? Lacking any way to detain a terrorist, it likely becomes much more appealing to kill a terrorist. So drone critics, when you are whining about drone targeting are you also advocating alternatives for a detention policy that doesn’t involve Guantanamo Bay, renditions, and human rights abuses by counterterrorism partners? I’m not hearing many solutions to this conundrum, which directly encourages further drone targeting.
- Oversight of the Executive Branch
The article notes:
“With no objections — and officials said those have been rare — names are submitted to a panel of National Security Council officials that is chaired by Brennan and includes the deputy directors of the CIA and the FBI, as well as top officials from the State Department, the Pentagon and the NCTC.”
As drone critics point out, the President and the Executive Branch holds all the power with drone targeting. This summer Frank Cilluffo and I offered:
“The U.S. might examine the establishment of a secret panel of judges and policymakers that hear cases for placing individuals on a targeting list. A single individual, as suggested in recent articles – even the Commander-in-Chief, should not be the lone arbitrator for each person proposed for targeting. An established process involving a collective judgment will render more defensible and consistent rulings. The Foreign Intelligence Surveillance Act (FISA) court might provide an example structure for how secret information can be protected while evaluating the evidence for placing a terrorist on a targeting list.”
A judicial panel could be appointed and authorized, similar to the FISA court, to provide oversight and accountability on drone targeting. This judicial process could provide documented deliberation, justification and accounting of drone targeting allowing for periodic review in terms of effectiveness and investigation when civilians are errantly engaged.
- Interdisciplinary “Devil’s Advocate” Red Team
The article notes:
“Counterterrorism experts said the reliance on targeted killing is self-perpetuating, yielding undeniable short-term results that may obscure long-term costs.” ….
For a decade, the dimensions of the drone campaign have been driven by short-term objectives: the degradation of al-Qaeda and the prevention of a follow-on, large-scale attack on American soil.
Side effects are more difficult to measure — including the extent to which strikes breed more enemies of the United States — but could be more consequential if the campaign continues for 10 more years.”
I would recommend that a threat or geographically oriented team of interdisciplinary “Devil’s Advocates” be injected into the targeting process. Drone targeting by its nature focuses on the short term tactical goals of counterterrorism. The “Devil’s Advocates” team could provide cleared country experts, cultural studies folks, PHD’s in terrorism and strategists that can anticipate the long term “blowback” implications of pursuing immediate term drone strikes in a given country outside of declared war zones. In the Yemen example, the panel might include development specialists, diplomatic ditherers, regional experts and strategists familiar with the Yemeni context and able to plot alternative worst-case scenarios of what might happen if drone strikes go bad. This can provide a valuable check for those consumed with the day-to-day tracking and engagement of terrorists.
- Publicly Disclosed Targeting Justification – Post Mortem
The secretive nature of today’s drone targeting leads to conspiracy theory generation by drone critics. As part of the approval process for drone targeting, a declassified justification for targeting individuals (that protects intelligence sources and methods) could be drafted. Immediately upon interdiction of terrorist targets, the White House could disclose this justification publicly serving two purposes. One, it would allay the conspiracy theories of those that believe the U.S. is unjustly killing individuals for no good reason. Two, it would put an informal check on the intelligence process encouraging planners and policymakers to get their intelligence and resulting justifications correct, as once a justification is openly published it would allow the public and the media to do their own checking if they choose.
- Expand the use of information operations in concert with drone strikes
As part of the effort to minimize civilian casualties and collateral damage from drone strikes, where possible, I think the U.S. could expand its information operations in the locations where they are targeting terrorists. As much as possible, I’d dump the equivalent of ‘Wanted Posters’ throughout areas where terrorists operate and let people know that terrorists are in their midst and that if they associate with said terrorist they might just get hit by a drone. Some would argue this alerts terrorists that they are being targeted, but I imagine most terrorists already know the U.S. could put a warhead-on-their-forehead at any given time. The information campaign would work much like the “Wanted” posters in the old west, many smart people would begin distancing themselves from those being targeted, maybe even cough up some terrorists to local law enforcement and it could inform local populaces as to who is being targeted and why they are being targeted. I don’t think this will win any hearts-and-minds per se, but it does help people unknowingly enmeshed with terrorists make better decisions about who they hang out with.
- The temptation to overreach – finding a definition of “al Qaeda”
Critics cited in the article rightfully note that drones make killing easy as compared to other counterterrorism options. As the U.S. has relatively decimated the upper tier of al Qaeda’s leadership, the targeting list has continued to add members.
“Is the person currently Number 4 as good as the Number 4 seven years ago? Probably not,” said a former senior U.S. counterterrorism official involved in the process until earlier this year. “But it doesn’t mean he’s not dangerous.”
This begs the question, “Are we really even fighting al Qaeda anymore?” As al Qaeda members flee Afghanistan and Pakistan, we must begin addressing who our adversaries are and how far we will go to pursue them. As of now, there is no common understanding of what al Qaeda is. As seen with the Benghazi attack, new militant groups with a handful of al Qaeda members or supporters are scattered around the globe. These groups will cooperate at times and compete at other times in pursuit of their goals, which vary from place to place and include different elements of al Qaeda’s ideology based on local conditions. Essentially, which of these new militant groups, regardless of the title al Qaeda, are truly threats to the U.S. and require dedicated counterterrorism action? Until the U.S. clearly identifies its adversaries and its interests, its likely to go too far in pursuit of some counterterrorism objectives and completely fail to address key threats in other locations.
“We didn’t want to get into the business of limitless lists,” said a former senior U.S. counterterrorism official who spent years overseeing the lists. “There is this apparatus created to deal with counterterrorism. It’s still useful. The question is: When will it stop being useful? I don’t know.”