Killing Machine (21 page)

“Just War” and Drones

In July 2001, two months before the terrible events of 9/11, the U.S. ambassador to Israel, Martin Indyk, condemned Israel’s targeted killings of presumed Palestinian terrorists. “The United States government is very clearly on record as against targeted assassinations. . . . They are extrajudicial killings, and we do not support that.”
³
But that would change. By 2010 Obama had abandoned the wider notion of a war on terror for a supposedly more targeted effort against al Qaeda, in line with his insistence that the United States was not at war with Islam. He had also vowed to go after Osama bin Laden. “I don’t believe in assassination,” he said as a candidate, “but Osama bin Laden has declared war on us, killed 3,000 people, and under existing law, including international law, when you’ve got a military target like bin Laden, you take him out.”
⁴

The use of unmanned aircraft had a history going back to the days of President Bill Clinton, who used cruise missiles to strike at al
Qaeda sites in Afghanistan and to bomb a factory in Sudan on August 20, 1998, in retaliation for the bombing of two American embassies in Kenya and Tanzania that had killed twelve Americans and three hundred Africans. At the time, though, the president was reeling from revelations about his intimate relations with a White House intern, and some Republicans saw the attacks as a smoke screen to shield Clinton from possible impeachment proceedings. There were real questions, moreover, about whether the chemical factory in the Sudan had even the slightest thing to do with al Qaeda—and, as it turned out, it didn’t. But evidence that the al Qaeda leader had been responsible for the bombings satisfied Clinton’s secretary of defense William Cohen, who responded to questions about whether it was right to say bin Laden was a legitimate military target this way: “To the extent that he or his organization have declared war on the United States or our interests, then he certainly is engaged in an act of war.”
⁵
Gen. Hugh Shelton, chair of the Joint Chiefs of Staff, added that bin Laden’s network had “been actively seeking to acquire weapons of mass destruction, including chemical weapons for use against U.S. citizens and our interests around the world.” Even with these statements by Cohen and Shelton on record, however, Clinton attempted to differentiate between attacks on a suspected training site and a planned assassination. Presidents Gerald Ford and Ronald Reagan had both issued executive orders against assassination, and Clinton no doubt did not wish to become involved in a second debate on ethics at that moment.

Richard Clarke, chief White House counterterrorism adviser to both Clinton and George W. Bush, recalled that the CIA and Pentagon initially shied away from the use of drones. He did not say the reason was the previously issued executive orders against assassination, but that seems the logical explanation. In any event, Clarke claims he convinced Clinton that the only way to find Osama bin Laden was by using drones. As noted in the introduction, Clarke claimed that an unarmed Predator drone had spotted bin Laden in October 2000. After that experience, Clinton gave orders to create an armed drone force, though under George W. Bush the CIA and Defense Department balked at using drones to target bin Laden,
even in the days leading up to 9/11.
⁶
After 9/11, of course, everyone wanted in on the action. But even then, after achieving a major success with the killing of a top al Qaeda operative in Kabul, says Clarke, President Bush proved “reluctant” to use this new weapon very often.

Richard Clarke’s claim to be the godfather of drone warfare may not become the official narrative, and certainly it reflects his personal disagreements with President Bush over going after Saddam Hussein. Yet Clarke is certainly right in arguing that Clinton’s use of cruise missiles throughout his terms in office—from 1993, when he bombed an Iraqi intelligence center to retaliate for a supposed assassination attempt on former president George H.W. Bush, to the 1998 attacks in Sudan and Afghanistan—demonstrated a preference for UAVs over soldiers.

When a full history of the drone is written, Clinton’s memorandum of notification amending the Reagan ban on assassinations will be one starting point. The memorandum permitted “lethal” counterterrorism actions against a short list of named targets, including Osama bin Laden and his top lieutenants. Killing could be approved only if capture was not deemed “feasible.” “A week after the Sept. 11 attacks,” reported Karen DeYoung in the
Washington Post
, “the Bush administration amended the finding again, dropping the list of named targets and the caveat on ‘feasible’ capture.” As a Bush administration official told DeYoung: “By design, it was written as broadly as possible.”
⁷

While the president already had authority to authorize covert activities, including lethal action on a case-by-case basis, what the CIA gained with the September 17, 2001, memorandum of notification was blanket authority, changing forever its role in American life. The memorandum not only provided the president with plausible deniability for secret intelligence operations, including drones and death squads, but also relieved him of requirements to consult with more than a handful of congressional leaders—after the fact—concerning any specific operation. With this, the thin gray line that had once separated legal and illegal actions became a mile-wide freeway for lethal actions.

John Yoo, author of the 2002 Office of Legal Counsel’s memos on torture, asserted that the president’s powers always expanded dramatically in wartime—even, he argued, to action inside the United States, as it would be absurd to stop pursuing an enemy simply because he crossed the border from Mexico or Canada during wartime. While it was true that the president had never asked Congress for an actual declaration of war, that did not matter, said Yoo, as the United States was in a war with al Qaeda and its affiliates.

I think we have moved from a world of holding people responsible for attacks that have already happened to trying to stop them—to pre-empt Al Qaeda from attacking us again as they did on September 11. The place I think you see it most clearly and sharply is in the use of force to kill people. We, the United States, apparently launched an attack, using missiles fired from a drone to kill an Al Qaeda leader driving a car in Yemen who’s not about to attack some American citizen; he was just a legitimate target because he was a member of Al Qaeda. There was an American citizen in the car with him who was also a member of Al Qaeda.
⁸

Despite Yoo’s contentions (and those of succeeding presidential advisers), the question of whether UAVs constituted assassination or legitimate targeting in the age of nonstate enemies continued to engage policy makers’ lawyers through the years, reaching a peak in the Obama administration’s still-classified fifty-page memorandum justifying the killing of American citizens by such weapons without an open court hearing. How far one could follow this down the ladder—“he was just a legitimate target because he was a member of Al Qaeda,” as Yoo put it—is part of the ongoing debate. By Yoo’s reckoning, the United States would be justified in using drones to kill every single member of al Qaeda inside or outside any recognized war zone, in any country, and whether or not the target was engaged in actual warlike activity at the time.

Richard Clarke has never had qualms about this kind of war, and dismisses objections without a moment’s thought. “The fact that those pilots [of drones] are safe and they are not engaged in a ‘fair
fight,’ which troubles some critics, has always struck me as positive. As an American, I do not like putting our military personnel at unnecessary risk.”
⁹

It still worries others, however; indeed, the announcement after Obama’s reelection that the administration would now attempt to write a code of behavior for drone warfare illustrated the dilemma, if not the outright fear of how far down a dangerous path the drone had already taken political leaders. Even before 9/11, drones posed an irresistibly seductive way to project American power without worrying about congressional prerogatives under the Constitution. But even back then it would have been possible to see at least one of the consequences of such actions: the 1998 cruise missile strikes missed their target in Afghanistan, but the blowback produced a closer alliance between the Taliban and al Qaeda.
^l0

Rationalizations

During the pre–Iraq War hype about Saddam Hussein’s supposed weapons of mass destruction, Bush administration figures tried to frighten senators and representatives by bringing them into secure rooms in the Capitol complex to deliver secret briefings warning about the Iraqi leader’s supposed capability of delivering biological and chemical weapons via unmanned drones. Recalling the episode in 2004, Senator Ben Nelson explained that he had voted to give the president the authority to go to war based on those images conjured up for skeptics. “I was looked at straight in the face and told that UAVs could be launched from ships off the Atlantic coast to attack eastern seaboard cities of the United States. Is it any wonder that I concluded there was an imminent peril to the United States?”
¹¹

Instead of Saddam Hussein using UAVs after 9/11, however, it was the Bush administration that sent a Predator drone in 2002 to kill a suspect in the 2000 bombing of an American warship. When the Hellfire missile vaporized a car on a desert road in Yemen and killed Yoo’s “legitimate” targets, Qaed Salim Sinan al-Harethi and five others, Deputy Secretary of Defense Paul Wolfowitz praised the
new tactic: “One hopes each time you get a success like that, not only to have gotten rid of somebody dangerous but to have imposed changes in their tactics, operations, and procedures.”
¹²

Wolfowitz was right about how attractive drone warfare seemed; in 2012, David Ignatius would write, “The CIA’s Counterterrorism Center has become proficient in managing drone attacks to the point that they’ve made assassination from 10,000 feet an almost addictive covert tool of policy.”
¹³
It soon became apparent, moreover, that the goal of imposing changes on the enemy’s perception of American abilities was as important as the actual number of high-level kills,
if not more so
. Intimidation, then, loomed large from the beginning as a positive result of drone warfare. And, as Rahm Emanuel, one of Obama’s closest advisers, realized, “the muscular attacks could have a huge political upside for Obama, insulating him against charges that he was weak on terror.”
¹⁴

It is worth repeating here the early criticisms lodged by two well-known counterinsurgency advocates and military advisers, David Kilcullen and Andrew McDonald Exum, who in May 2009 were the first to write about the potential blowback in an op-ed article for the
New York Times
. Kilcullen and Exum readily acknowledged the seductive attractions of drone warfare: the disruption of terrorist networks, the sense of insecurity created among militants and their interactions with suspected informers, the avoidance of American casualties. To this list they might have added the enduring romance of Americans with technological “fixes” in all aspects of their lives, war just as much as politics, business, and entertainment. But drone warfare was self-defeating, they claimed, because for every terrorist eliminated, fifty noncombatants were killed. The result was to guarantee an ever mounting desire for revenge, “and more recruits for a militant movement that has grown exponentially even as drone strikes have increased.”
¹⁵

Until Kilcullen and Exum’s piece, there had been no public acknowledgment that a drone campaign even existed. A peek-a-boo charade had been put in place, it was said, in order to protect the governments of the countries where the attacks took place from the wrath of their people. The pretense served another purpose, too:
keeping down questions about how the offensive was being run, especially the CIA’s active role. Civilians who carried out acts of war were (to say the least) in an ambiguous position. Recognized laws of warfare called for transparency as to both responsibility for conducting warlike acts and accountability for possible war crimes. By contrast, the CIA specialized in opaqueness.

Two days after Kilcullen and Exum’s op-ed appeared, CIA director Leon Panetta gave a “rare public acknowledgment of the raids.” They were “very precise,” he informed a meeting of the Pacific Council on International Policy in Los Angeles. He could not get into specifics, but he “could assure” everyone that they were “very limited in terms of collateral damage.” Having dismissed the major Kilcullen-Exum objection, Panetta asserted there was no other way to go. “Very frankly, it’s the only game in town in terms of confronting or trying to disrupt the al Qaeda leadership.”
¹⁶

Panetta’s assurances were not likely to persuade skeptics. While public opinion polls consistently showed a big—indeed, over whelming—vote in favor of using drones against terrorists, the way the question was asked largely determined the answers. When it came to the question of whether the president needed to consult Congress on drones, the results were less lopsided: 50 percent said no in one poll, while 37 percent said yes.
¹⁷

In the meantime, administration supporters began to engage Exum and Kilcullen’s arguments in an effort to convince liberal elites who might have been puzzled by Obama’s wholehearted embrace of drone warfare. Journalist Steve Coll—a very bright star in Eastern intellectual circles, and author of
Ghost Wars
, a Pulitzer Prize-winning account of the origins of the Afghan War from the Soviet invasion until 2001—rationalized Obama’s drone policy as aimed at bringing Osama bin Laden to justice while degrading al Qaeda in the meantime. It was a matter of bringing closure to the trauma of 9/11, something that the nation could not go forward without. And Obama could not win reelection without having taken every step he could to get Osama bin Laden.