Killing Machine (23 page)

Administration efforts in this regard, he said, established the point that President Obama was to be trusted. But then Koh immediately backtracked to what he called “the law of 9/11” to explain how drone warfare fit into the corpus of international law. This “law” was embedded, he argued, in Obama’s Nobel Prize speech. As the president had reminded us, “the world must remember that it was not simply international institutions—not just treaties and declarations—that brought stability to a post-World War II world. . . . [T]he instruments of war do have a role to play in preserving the peace.” Despite Koh’s insistence on parsing the president’s Nobel rhetoric, there was a circular sound to the phrase “law of 9/11”—and about the idea that Obama could be trusted with the task of making drones legal weapons because he could be trusted to decide what “instruments of war” preserved the peace.

There are obviously limits to what I can say publicly. What I can say
is that it is the considered view of this Administration
—
and it has certainly been my experience during my time as Legal Adviser
—
that U.S. targeting practices, including lethal operations conducted with the use of unmanned aerial vehicles, comply with all applicable law, including the laws of war
.
³²

The Debate Goes On

Harold Koh’s arguments and references to President Obama’s good intentions did not close the debate on drones. The president’s Republican opponents—who had been criticized for supporting the
waterboarding of terrorism suspects in an effort to elicit information that would help prevent new attacks—came up with an interesting riposte: you couldn’t interrogate a dead man. John Yoo, often Harold Koh’s favorite target in the past and now back at Berkeley teaching law students, joined several other Republicans and neocons in criticizing the drones for depriving the United States of potential intelligence sources. “The administration,” he would write,

has made little secret of its near-total reliance on drone operations to fight the war on terror. The ironies abound. Candidate Obama campaigned on narrowing presidential wartime power, closing Guantanamo Bay, trying terrorists in civilian courts, ending enhanced interrogation, and moving away from a wartime approach toward a criminal-justice approach. Mr. Obama has avoided these vexing detention issues simply by depriving terrorists of all their rights—by killing them.
³³

William Howard Taft IV, who served in Koh’s position in the Bush administration, told journalist Tara McKelvey that he had originally supposed it would be possible to change that administration’s mind—meaning John Yoo and the OLC—when it claimed the Geneva Convention did not apply to those captured in the war on terror, but “it turned out we could not persuade them.” McKelvey then asked a pointed question that struck at Koh’s reliance—indeed, insistence—on faith in Obama’s judgment about such matters, phrasing her query as a general proposition: “Why does the law matter when everyone thinks something is OK?” This exchange followed:

“That is actually a deep question. When a human life is at stake, there needs to be a process for determining that a person can be executed or shot in an armed conflict,” [Taft] says. “Otherwise, we will have an individual just deciding that he wants to kill someone.”

“What if it’s the president?” I ask.

“Especially,” said Taft. “He’s the main person who might possibly have this authority, and you’ve got to watch it.”
³⁴

Koh’s points would be elaborated on and supplemented several times by heavy hitters in the administration, including chief counterterrorism adviser John Brennan (who had been Obama’s original briefer on drone warfare after the 2008 election), attorney general Eric Holder, and chief Pentagon lawyer Jeh Johnson. But in each instance the case rested on some variation of Obama’s use of the illusive “law of 9/11.” Or, more simply, “Trust me.”

McKelvey questioned retired general James Cartwright about Koh’s conversion to drones, a weapon the general heard Koh say in a White House conversation early in the administration constituted “extrajudicial killings,” meaning assassination. When she confronted Koh, he denied he had changed his mind: “I never used that phrase.” He referred her to his 2010 speech, saying, “You’ll see that I said they were not ‘extrajudicial killings.’ ” She asked him about a 2002 interview in the
New York Times
in which he was quoted as saying, “The question is, what factual showing will demonstrate that they had warlike intentions against us and who sees that evidence before any action is taken?” He still denied that he had ever changed his position. So far as the quotation was concerned, Koh had the better of the argument, because he also said in that interview, “The inevitable complication of a politically declared but legally undeclared war is the blurring of the distinction between enemy combatants and other nonstate actors.”
³⁵

More telling than the 2002 quotation, however, was the nearly ferocious statement Koh read to a subcommittee of the Senate Judiciary Committee on September 16, 2008, that began with a blunt statement about the “sorry historical record” of the Bush administration since 9/11 in turning upside down the nation’s international reputation as the global leader in defense of human rights. To repair the damage to the nation’s institutions, he said, would require recognition that “constitutional checks and balances do not stop at the water’s edge . . . we need an energetic executive, but checked by an energetic Congress and overseen by a vigilant judicial branch.”

And that was only the beginning. He made two pertinent arguments that went beyond anything he had ever said about judicial process or presidential prerogatives to make lethal target decisions. “There are no law-free zones, practices, courts or persons,” Koh said, citing Guántanamo as the worst example of an effort to establish a “law-free” zone, but the statement extended to secret CIA rendition locations, and in general, logically, to areas not recognized as “war zones.” He also said in an exasperated tone, “The last straw has been the startling argument that executive action should be treated as a kind of law unto itself.” The president’s lawyers had argued that the policy rationale for executive action had somehow
“created
the legal justification for executive unilateralism.” It had done this by relying on the Authorization for Use of Military Force Resolution as a general congressional encouragement to go as fast and far as possible. What had happened “evoked eerie memories” of a comment by Richard Nixon: “When the president does it, that means it is not illegal.” If that were true, said Koh, then the president’s word was above the law, and the checks and balances of the Constitution no longer existed.
³⁶

Harold Koh’s parsing of the law on Obama’s behalf in 2010 also relied on a painstaking review of evidence about the “targeting list.” How the meticulous Koh must have cringed, then, to read comments such as those by Jeffrey Addicott, who served as senior legal adviser to the Army Special Forces. Addicott readily admitted that tallies of drone “misses” were almost certainly wrong, because no matter how good the technology, “killing from that high above, there’s always the ‘oops’ factor.” It was likely that for every “bad guy” killed, there were 1.5 civilian deaths. But Addicott was not upset at the thought. “This is war and we are entitled to kill them anywhere we find them. We can kill them when they’re eating, we can kill them when they’re sleeping. They are enemy combatants, and as long as they’re not surrendering, we can kill them.”
³⁷
Such comments revealed the love affair American leaders were having with their new technology of death. Indeed, a former U.S. intelligence official told a Reuters reporter, “Everyone has fallen in love with them.”
³⁸

The development of drone technology expanded the CIA’s arsenal, which now incorporated micro-UAVs about the “size of a pizza platter,” capable of monitoring potential targets at close range for hours or days at a time: “It can be outside your window and you won’t hear a whisper.”
³⁹
In an effort to assuage Pakistani outrage and protests about infringement of sovereignty, the U.S. government touted the drones’ smaller size and greater precision. In March 2010, a CIA missile—“probably no bigger than a violin case and weighing about 35 pounds”—tore through the second floor of a house in Miram Shah, in the Pakistani province of South Waziristan. It killed a top al Qaeda official “and about nine other suspected terrorists.” These were CIA accounts of the strike, of course, and they were slanted to demonstrate how accurate the newer weapons fired from drones had become. By one measure the drone got ten bad guys; by a more skeptical measure, however, the drone got one “bad guy” and nine “passersby,” so to speak.

6

THE MEANING OF TWO DEATHS

Hopefully, that “dark side” is not going to be something that’s going to forever tarnish the image of the United States abroad and that we’re going to look back on this time and regret some of the things that we did, because it is not in keeping with our values
.

—John Brennan, interview on
Frontline
, March 8, 2006

Only hours after President Obama told the nation that “justice has been done,” details about the killing of Osama bin Laden in his Pakistani compound had become a controversy. White House aides, following the president’s lead, stressed the extraordinary courage and capability of the Navy SEAL Team Six that had carried out the raid as they fought their way up to the third floor to where the author of the 9/11 attacks was ready to make his last stand. “After a firelight,” said the president, “they killed Osama Bin Laden and took custody of his body.”

The president’s aides added details that made the story sound like a reenactment of the shoot-out at the OK Corral, with the SEALs playing the role of the Earp brothers and Doc Holliday. White House press secretary Jay Carney began the next morning by reminding reporters of Obama’s vow in the 2008 presidential campaign: “We must make it clear that if Pakistan cannot or will not act, we will take out take out high-level terrorist targets like bin Laden if we have them in our sights.” Then he turned the press briefing over to John Brennan, the president’s special assistant for Homeland Security and Counterterrorism.

The very first question was whether any consideration had been given to taking bin Laden alive. “Absolutely,” began Brennan; the SEAL team was prepared for all contingencies. “If we had the
opportunity to take bin Laden alive, if he didn’t present any threat, the individuals involved were able and prepared to do that [take him prisoner]. We had discussed that extensively in a number of meetings in the White House and with the president. The concern was that bin Laden would oppose any type of capture operation. Indeed, he did. It was a firefight. He, therefore, was killed in that firefight and that’s when the remains were removed.”
¹

Then came another question, a more specific one, about bin Laden’s supposed resistance: “Did he get his hand on a gun and did he fire himself?” Brennan seized on the question, however, as an opportunity to elaborate on a number of themes he wanted to get across in this first public discussion of what had happened—and the meaning behind bin Laden’s life and death. He chose his words carefully about bin Laden’s active role in shooting: “He was engaged in a firefight with those that entered the area of the house he was in. And whether or not he got off any rounds, I quite frankly don’t know.”

Having skirted the actual question, he took the reporters along another path.

Thinking about that from a visual perspective, here is bin Laden, who has been calling for these attacks, living in this million-dollar-plus compound, living in an area that is far removed from the front, hiding behind women who were put in front of him as a shield. I think it really speaks to just how false his narrative has been over the years. And so, again, looking at what bin Laden was doing hiding there while he’s putting other people out there to carry out attacks again just speaks to I think the nature of the individual he was.
²

In other words, it was best to focus on the meaning of his death rather than the details. But the press conference was far from a completely successful venture. The very next day Carney had to explain away several of Brennan’s assertions as the products of “the fog of war.” For example, the story about bin Laden using a woman as a
shield was simply not true. Brennan had used it to discredit bin Laden’s credibility and image as a brave leader. Indeed, the original firefight story itself had begun to burn out. At the next briefing Jay Carney was confronted with Brennan’s “misstatements . . . such as that the wife was shielding bin Laden and . . . there may not have been a shield and it wasn’t clear whether or not bin Laden had a gun.” The questioner asked, “Are you guys in a fog of war in this, or what gives?”
³

Carney was grateful for the prompt and the exit lane it opened up out of a traffic jam of raised hands. “Well, what is true,” he said, “is that we provided a great deal of information with great haste in order to inform you and, through you, the American public about the operation and how it transpired and the events that took place there in Pakistan. And obviously some of the information was—came in piece by piece and is being reviewed and updated and elaborated on.” Here he caught himself before he might have said that some of the information was false or not fully accurate.

He also tried his best to find wiggle room around the president’s use of the word
firefight
. “There was concern that bin Laden would oppose the capture operation—operation rather and, indeed, he did resist.” Taking out “capture” after a pause avoided another near misstep. But the press secretary continued to have difficulty as he put forward a series of confusing details about bin Laden’s final moments: “In the room with bin Laden, a woman—bin Laden’s—a woman, rather bin Laden’s wife, rushed the U.S. assaulter and was shot in the leg but not killed. Bin Laden was then shot and killed. He was not armed.” Still, Carney insisted, “The resistance was throughout. As I said, when the assaulter entered the room where Osama bin Laden was, he was rushed by one individual in the room, and the resistance was consistent from the moment they landed until the end of the operation.”