Killing Machine (35 page)

Their presence there over the last 12 years has been a source of enormous difficulty for a friendly government. It’s been a huge recruiting device for al Qaeda. In fact if you look at bin Laden, one of his princip[al] grievances was the presence of so-called crusader forces on the holy land, Mecca and Medina. I think just lifting that burden from the Saudis is itself going to open the door to other positive things.
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There is a well-informed argument that the government itself ceased pressure to keep its secret because it wanted John Brennan to be seen in a good light in terms of his influence with Saudi Arabia in getting the base built. Brennan had been CIA station chief in Riyadh in the 1990s, and his views of the jihadist threat in Yemen paralleled Saudi concerns. There may also have been a tripartite understanding that matters were even more delicate in Yemen owing to popular opposition to American drone strikes, let alone the installation of a base. Yemeni president Ali Abdullah Saleh had finally been forced into retirement, but the new president, Abdu Rabu Mansour Hadi, had not been able to improve his standing at home. Hadi’s “fierce praise for the American drone-strike program, which is unpopular here,” wrote Robert Worth in the
New York Times
, “has further eroded his small base of public support. He is widely said to fear for his life and has appointed many family members and old allies to security positions.”
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Despite what drones were doing to undermine the governments in Islamabad and Sana, other states seemed comfortable with the benefits that came with hosting American drone bases. In late January
2013 Niger joined five other African countries with drone bases on their territory, including Morocco, Senegal, Burkina Faso, Uganda, and Djibouti. “Many people in North Africa rate the risk from al-Qaeda higher,” wrote the editor of a defense magazine, “than they did 12 months ago.” Some trustworthy countries, such as the United Arab Emirates, were even allowed to buy Predator drones for their own use.
¹⁷

The 2012 Defense Planning Guide promised that U.S. forces would “conduct a sustainable . . . presence abroad” that would include rotational deployments, along with bilateral and multilateral training exercises. “These activities reinforce deterrence, help to build the capacity and competence of U.S., allied, and partner forces for internal and external defense, strengthen alliance cohesion, and increase U.S. influence.” But then this caveat appeared in italics:
“However, with reduced resources, thoughtful choices will need to be made regarding the location and frequency of these operations
.”
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As recently as two years earlier, Defense Department planning guides had repeated the “oath” that the United States would be able to fight two major wars at the same time. Now the military only needed to be able to fight one war, but it would be responsible for “denying the objectives of—or imposing unacceptable costs on—an opportunistic aggressor in a second region.”
¹⁹
Americans now lived in a world where there was no distinction between near and far, national borders existed only in atlases, and the difference between war and peace could not be defined.

Reactions and Justifications

“The Obama administration has a doctrine,” worried veteran Middle East journalist Roger Cohen in the
Times
. “It’s called the doctrine of silence.” Cohen approved of the drone strategy because it caused less bloodletting than the wars in Iraq and Afghanistan, which also might end up costing at least $3.7 trillion. Yet he was uneasy with its “legally borderline, undercover operations. . . [that] invite repayment in kind, undermine the American commitment to the rule of law, and make allies uneasy.” Obama owed the world
a speech, said Cohen, about why he would not embark on another “inconclusive” war and had instead “adopted a new doctrine that has replaced fighting terror with killing terrorists.”
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No speech was going to chase away the feeling that the time had come for a major reassessment of where the United States was heading—and the danger that the deadliest and most successful drone strikes would be on the constitutional foundations of American democracy. Former secretary of state Madeleine Albright took a question on a national television show about the appropriateness of drone warfare and skirted the constitutional issue completely. She called the debate over drones “most complicated and fascinating,” because during her time in office and the Kosovo crisis, some in the Clinton administration had called bombing immoral, instead making the argument that “you should have boots on the ground.” But she thought, “Why should we get more people killed, why do you have to have boots on the ground when you can take care of the terrible things that are happening from the air?”
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But, she admitted, while drone strikes have been very effective in “getting rid of people that are bound and determined to attack us . . . it has become a very complicated issue and I think there should be a public discussion about the appropriateness of them.” Albright, of course, was famous for having said during the years before the second Gulf War that the sanctions on Iraq that were causing terrible hardships for that country’s children, including deaths, were a terrible choice but worth it in the end to get rid of Saddam Hussein. Ends and means, then, were the proper platform to discuss foreign policy questions.

The white paper sought to do more than just list ends and means—its goal was to put legal supports under the various branches of claimed authority for the drone strikes. The white paper’s purpose, its opening statement explained, was to set forth a legal framework “for considering the circumstances in which the U.S. government could use lethal force in a foreign country outside the area of active hostilities against a U.S. citizen who is a senior operational leader of al-Qaeda or an associated force”—that is, someone actively engaged in planning operations to kill Americans.
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So we are told at the outset that the legal argument is restricted to providing a justification for killing Anwar al-Awlaki—or an approximate equal who is a U.S. citizen. Later the question of equivalence gets muddled as the white paper’s authors seek to find a way out of a predicament caused by “minimum requirements” for addition to the kill list: “This paper does not attempt to determine the minimum requirements necessary to render such an operation lawful, nor does it assess what might be required to render a lethal operation against a U.S. citizen lawful in other circumstances. It concludes only that the stated conditions would be sufficient to make lawful a lethal operation in a foreign country directed against a U.S. citizen with the characteristics described above.” To provide specific examples instead of such generalities would, of course, limit the scope of drone warfare at a time when bases were being built in almost spree-like fashion to handle hundreds if not thousands of cases of “imminent” danger to U.S. citizens.

Even as the white paper sought to seal over gaps between the claims for the Authorization to Use Military Force and Article II of the Constitution, it unwittingly called attention to some jagged edges that stuck out from the less than perfect paste job that had put together the white paper from an assortment of still-secret memos. The president appeared taken aback, for example, when on one of the outlets he had used so successfully to get his message across, Google+ Hangouts, he was asked this question by a video blogger named Lee Doren: “A lot of people are very concerned that your administration now believes it’s legal to have drone strikes on American citizens, and whether or not that’s specifically allowed with citizens within the United States. And if that’s not true, what will you do to create a legal framework to make American citizens within the U.S. know that drone strikes cannot be used against American citizens?”
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Obama dodged a categorical answer: “Well first of all, there has never been a drone used on an American citizen on American soil.” Then he added, “We respect and have a whole bunch of safeguards in terms of how we conduct counterterrorism operations outside of the United States. The rules outside of the United States are going
to be different than the rules inside the United States, in part because our capacity to capture a terrorist in the United States are very different than in the foothills or mountains of Afghanistan or Pakistan.”
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This answer deserves a somewhat extended comment because it goes to the heart of the drone rationale. To begin with, it assumes that tracking down a terrorist is completely different from a stand-off with a killer holed up in a shack somewhere, a situation in which local authorities most often use lethal force. But the white paper talked about the problem of a narrow “window of opportunity” as a key factor in eliminating “imminent” threats, and it attempted to turn the White House definition of “imminent” into a sliding scale, not a particular point. “Certain aspects of this legal framework require additional explication,” the white paper’s authors said. “First, the condition that an operational leader present an ‘imminent’ threat of violent attack against the United States does not require the United States to have clear evidence that a specific attack on U.S. persons and interests will take place in the immediate future.” The authors used the example of 9/11 for proof, to demonstrate that such a restriction would not allow the nation time to prepare a defense.

Why wouldn’t that also be a factor inside the United States? Obama said the rules inside the United States and for foreign countries were “different,” but he did not specifically refer to American citizens—suggesting both that foreign terrorists loose in the United States could be subject to drone strikes and that constitutional rights did apply to American citizens engaged in ongoing terrorism planning in other countries. Finally, the president talked about yet unwritten “rules” as if there were something in the offing and as if the executive office would simply seek something like the Gulf of Tonkin Resolution or the September 2001 Authorization to Use Military Force. Conspicuously, he did not mention the possibility of a court overview for drone strikes, an idea being bruited about in the Brennan hearings.

Even more to the point, 9/11 really had nothing to do with Awlaki—the principal subject of the white paper. Obama did say, “I
am not somebody who believes that the president has the authority to do whatever he wants or whatever she wants whenever they want just under the guise of counterterrorism. There have to be legal checks and balances on it.” Apparently, however, he also believed that with the white paper the OLC had provided him with the necessary guidance on what was and was not legal. Whatever other checks and balances were needed had already been explained by Holder in his speech at Northwestern as being satisfied by poststrike consultations with designated members of Congress.

Taken as a whole, the white paper was an almost perfect example of the shopworn but nonetheless valuable legal adage “Hard cases make bad law.” Or, in this instance, hard cases make for poor legal opinions from the Office of Legal Counsel. The
New York Times
put it another way: “It was disturbing to see the twisted logic of the administration’s lawyers laid out in black and white.” It had the air of an ex post facto rationalization for a policy already carried out and brought back unwelcome memories of OLC memos for George W. Bush justifying torture, indefinite detention, and kidnapping. The document coyly referred to another memo specifically providing the legal reasoning for killing Awlaki even as the administration still refused to show that document to Congress, let alone the public. It had failed to back up its claim that he was an active terrorist, and the administration “has vigorously fought any court hearing over the killing of Mr. Awlaki or his 16-year-old son, who was killed in a subsequent attack.” So much for checks and balances.
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Going forward, said the editorial, a court should be created to render verdicts before such death sentences were carried out. The likelihood of that happening so long as the CIA and the Pentagon “shared” authorizations, the former under covert action rationales and the latter under Article II, was very low. For one thing, what would happen to signature strikes, or poststrike follow-ups? Of course, the real problem was that the white paper’s deliberate emphasis on “resolving” the Awlaki “case” was intended to clear away obstacles to the widespread use of drones. If a court was created to protect “American citizens” living abroad accused of terrorist plotting from having their constitutional rights infringed upon in the
most drastic fashion possible, the judges would have little to do except brush away cobwebs from the bench.

That was why the question to President Obama about the right to kill an American citizen inside the United States proved difficult to answer in straightforward fashion: the white paper had specified in its opening statement that it laid out a legal framework for killing a traitorous U.S. citizen in a “foreign” country—nothing else. But its elaboration, as we have seen, referred to broader issues of drone warfare, such as “window of opportunity” and the meaning of “imminent.”
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The same day the
Times
editorial appeared, the administration’s out-front guy, press secretary Jay Carney, once again took on the burden of responding to questions that, as he put it, raised “understandable questions” about the white paper. Three times Carney was asked about the meaning of “imminent,” and how the government could determine such a threat without specific evidence. Three times the press got a variation of this answer: “And I can just say that this President takes his responsibilities very seriously, and first and foremost, that’s the responsibility, to protect the United States and American citizens.”