Killing Machine (32 page)

The green-on-blue threat continued, but it was in fact greater than the danger of Taliban infiltration. It was really the same as what the French had feared when they hesitated to build up a Vietnamese army: that at some stage the weapons the Western power supplied would be turned against them, or used in a postoccupation civil war by “unfriendlies.” In the midst of the green-on-blue crisis came an incident that may well be remembered as Afghanistan’s My Lai. An American soldier left his base in southern Afghanistan in the middle of the night and walked to a nearby village, where he shot and killed sixteen civilians. Everything was working against the idea of continuing a land war (or occupation) in Afghanistan—and pushing American policy makers not only toward a speedier withdrawal but also toward more drone flights and attacks.

It was becoming clear, however, that the president’s off-the-cuff comments to an online town hall questioner had left him in an untenable position. Even while 77 percent of Democrats supported the drone policy in polls—without really knowing what it entailed—Obama found himself in danger of losing control of the momentum of drone warfare.

The Loyal Opposition

A few conservatives who had opposed George W. Bush’s methods of rationalizing dubious acts as powers accruing to the “unitary presidency”—a theory that claimed the Constitution’s authors meant the opposite of what they said—had begun to speak out. First there was Jack Goldsmith, who left the OLC in 2004 after protesting the torture memos and turned to the public arena to voice his concerns. He published a memoir,
The Terror President
(2007), and said of the new use being made of the Office of Legal Counsel that its “power to interpret the law is the power to bestow on government officials what is effectively an advance pardon for actions taken at the edges of vague criminal statutes.”

Even before Obama’s imperfect acknowledgment of drone warfare, Goldsmith had written that “technical covertness” was wrong.

It is wrong . . . for the government to maintain technical covertness but then engage in continuous leaks, attributed to government officials, of many (self-serving) details about the covert operations and their legal justifications. It is wrong because it is illegal. It is wrong because it damages (though perhaps not destroys) the diplomatic and related goals of covertness. And it is wrong because the Executive branch seems to be trying to have its cake (not talking about the program openly in order to serve diplomatic interests and perhaps deflect scrutiny) and eat it too (leaking promiscuously to get credit for the operation and to portray as lawful).
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Goldsmith was far from an absolutist about whether or not international law supported drone strikes in general, saying that John Brennan and Harold Koh had elaborated on those questions and that there was not much more that could be said “to change the mind of critics who believe the strikes violate international law.” But there had been practically nothing said officially about whether the executive branch possesses the power to kill an American citizen. The president had had widespread support on the Awlaki strike but wanted to be assured that the action was done legally “and with care.” “The government could easily reveal this more detailed legal basis for a strike on as U.S. citizen,” Goldsmith argued, “without reference to particular operations, or targets, or means of fire, or countries.”

Former CIA director Michael Hayden from the Bush years put a sharper edge on Goldsmith’s main point: “This program rests on the personal legitimacy of the president, and that’s not sustainable. I have lived the life of someone taking action on the basis of secret O.L.C. memos, and it ain’t a good life. Democracies do not make war on the basis of legal memos locked in a D.O.J. safe.”
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The president’s statements in the online town hall on January 30 and Jay Carney’s follow-up the next day did not meet Goldsmith’s
various criteria and did not come close to answering Hayden’s charge, as Amy Davidson, a senior editor at the
New Yorker
, later wrote in her blog.

Brennan and other officials interviewed by the
Times
and
Newsweek
said that Obama had enormous faith in himself. It would be more responsible, though, if he had less—if he thought that he was no better than any other President we’ve had or ever will. The point isn’t just the task, or burden, he takes on, but the machine he has built for his successors to use. . . . In the end we are not really being asked to trust Obama, or his niceness, but the office of the Presidency. Do we?
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Attorney general Eric Holder went to Northwestern University in early March 2012 to address the question of whether it was legal under U.S. laws to kill citizens without giving them full Fifth Amendment rights to a court trial. He began by invoking John F. Kennedy’s assertion that only a few generations were asked to defend “freedom in its hour of maximum danger.” Against that background, Holder claimed that in 2012 “it is clear that, once again, we have reached an ‘hour of danger.’ ” Each day, he said, he received a briefing on the “most urgent threats” of the past twenty-four hours. “I go to sleep each night thinking of how best to keep our people safe.” Despite recent national security successes, always topped by the killing of Osama bin Laden, “there are people plotting to murder Americans, who reside in distant countries as well as within our own borders.”
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In other words, Americans lived under a permanent cloud of imminence. But just as surely as the nation was at war, we were also a nation of laws and values. This was not just his view. “My judgment is shared by senior national security officials across the government,” Holder said, then went into a long discussion of how the courts had successfully tried terrorists and given them long sentences. In addition, military commissions had been “reformed” in order to encourage countries that had refused to cooperate on certain antiterrorist efforts “in providing evidence or extraditing suspects” to change their minds.

Then he reached the heart of the matter, as he saw it. “It is preferable to capture suspected terrorists where feasible—among other reasons, so that we can gather valuable intelligence from them—but we must also recognize that there are instances where our government has the clear authority—and, I would argue, the responsibility—to defend the United States through the appropriate and lawful use of lethal force.” After that came the layers of reasoning behind his assertion. First, Congress had authorized the president to use all necessary and appropriate force against al Qaeda, the Taliban, and associated forces. Second, because we were in an armed conflict, the United States was authorized under international law to use lethal force against “enemy belligerents.” And third, the Constitution empowered the president to protect the nation “from any imminent threat of violent attack.” Each of these justifications had been challenged, of course, beginning with the interpretation Holder offered of the Authorization to Use Military Force (AUMF) that Congress passed on September 17, 2011, the vague definition of “enemy belligerents,” and, as Brennan himself had said the previous September, how one defined the meaning of
imminent
.

George W. Bush, of course, expanded the 2001 AUMF (for Afghanistan) and the 2002 AUMF (regarding) Iraq to make himself commander in chief of a global war on terrorism. The Pentagon’s chief counsel, Jeh Johnson—a former student of Harold Koh, he was proud to say—had recently performed something of a sleight of hand about this transformation.

The AUMF, the statutory authorization from 2001, is not open-ended. It does not authorize military force against anyone the Executive labels a “terrorist.” Rather, it encompasses only those groups or people with a link to the terrorist attacks on 9/11, or associated forces.

On the other hand, he told students at Yale University’s law school:

There is nothing in the wording of the 2001 AUMF or its legislative history that restricts this statutory authority to the “hot”
battlefields of Afghanistan. Afghanistan was plainly the focus when the authorization was enacted in September 2001, but the AUMF authorized the use of necessary and appropriate force against the organizations and persons connected to the September 11 attacks—al Qaeda and the Taliban—without a geographic limitation.
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Holder repeated Johnson’s assertion: “Our legal authority is not limited to the battlefields in Afghanistan.” Furthermore, it was legal to attack senior members of the al Qaeda leadership “and associated forces.” This was not a novel concept, he said. It went back to World War II, the most frequently cited antecedent being the tracking and destruction of the plane carrying Admiral Isoroku Yamamoto, the commander of the forces that attacked Pearl Harbor. Now the issue seemed to be “assassination” versus “lawful targeting.” As we have seen, presidential executive orders from the time of Gerald Ford and Ronald Reagan had outlawed assassination. Yamamoto was certainly an “enemy belligerent,” and targeting him was no different, really, from shooting the commander of a machine-gun nest as he was on his way to the mess hall. Yet in the Yamamoto case there had been a formal declaration of war against Japan. Since 9/11 any distinctions between “assassination” and “lawful targeting” had all but vanished, with congressional and judicial acquiescence, and the cited authorization for lethal action had been extended, as Jeh Johnson said it should not be, “against anyone the Executive labels a ‘terrorist.’ ”

Holder objected to the use of the loaded term
assassination
and insisted that it was misplaced. These were not unlawful killings, but the legitimate use of force against an imminent threat of violence. It was true that the Fifth Amendment came into play when the target was a U.S. citizen. But the courts had recognized that due process under that amendment had to take into account “national security operations” and the “realities of combat.” “The evaluation of whether an individual presents an ‘imminent threat’ incorporates consideration of the relevant window of opportunity to act, the possible harm that missing the window would cause to
civilians, and the likelihood of heading off future disastrous attacks against the United States.”

All these considerations—and there were many more listed in the speech Holder gave—left the president free to act: “Some have argued that the President is required to get permission from a federal court before taking action against a United States citizen who is a senior operational leader of al Qaeda or associated forces. This is simply not accurate. ‘Due process’ and ‘judicial process’ are not one and the same, particularly when it comes to national security. The Constitution guarantees due process, not judicial process.”

So now “due process” and “judicial process” were joined to “imminent” and “associated forces” in the lexicon one had to know in order to understand drone warfare. Holder had precise definitions for them all. In reporting on the speech, Charlie Savage in the
New York Times
said it was “notable” for its assertion that it was legal to kill a U.S. citizen without a judicial review under certain circumstances. It was also notable for the absence of specific legal citations, added Savage, and fell far short of the detail contained in the OLC memo that was the basis for the attack on Awlaki, the one the
Times
had filed a lawsuit to obtain under the Freedom of Information Act.
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Next up to the podium was John Brennan for his second round, the cleanup batter on the Obama team. Some months later Obama’s chief counterterrorism adviser would tell a congressional committee considering his nomination to head the CIA that Holder might be wrong, and that the idea of a court to determine when it was right to kill a U.S. citizen had actually been under consideration during the administration’s deliberations. Again the reporter was sharp-eyed Charlie Savage: “Mr. Brennan was noncommittal, noting that lethal operations are generally the sole responsibility of the executive branch. But he said the administration had ‘wrestled with’ the concept of such a court and called the idea ‘certainly worthy of discussion.’ ”
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But back in April, Brennan had gone to the Woodrow Wilson International Center for Scholars, where, as he emphasized, Barack Obama had delivered his first big speech on foreign policy as he
began his race for the White House five years earlier. For the most part Brennan’s speech, which he billed as a direct response to the call for more transparency, simply rehearsed arguments Holder had made. He announced that al Qaeda was but a shadow of itself, but that shadow now fell across a wider area than ever, extending well into Africa as far as Nigeria. There had been few “unilateral captures” outside of Afghanistan since 9/11 because, first, our “partners have been able to kill or capture dangerous individuals themselves,” and second, these terrorists were “skilled at seeking remote, inhospitable terrain—places where the United States and our partners simply do not have the ability to arrest or capture them.” He asserted that the United States respected state sovereignty and international law.

What was also new was his introduction of the notion of “significant threat” as a qualification for the “kill list.”

We do not engage in lethal action in order to eliminate every single member of al-Qa’ida in the world. Most times, and as we have done for more than a decade, we rely on cooperation with the other countries that are also interested in removing these terrorists with their own capabilities and within their own laws. Nor is lethal action about punishing terrorists for past crimes; we are not seeking vengeance.

By “significant threat,” he said, he meant not the mere possibility that an individual might attack us at some point in the future; rather, the individual would have to be actively engaged as an operational leader of al Qaeda or one of its “associated forces,” adding, “Or perhaps the individual possesses unique operational skills that are being leveraged in a planned attack.”
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