Killing Machine (37 page)

Wyden even hastened to tell his home state newspaper
The Oregonian
that he did not really believe he had “joined” the filibuster, because his remarks did not extend it to any degree. And he said he accepted attorney general Eric Holder’s statement that the administration had “no intention” of carrying out drone strikes on citizens suspected of being terrorists on American soil, except in “an extraordinary circumstance” such as a major terrorist attack. But what satisfied Wyden still seemed “more than frightening” to Rand Paul. As his speech continued, he began to talk about long-contested events of the Vietnam War. Many college campuses in the 1960s were full of people, he said, who might have been considered enemies of the state.

“Are you going to drop . . . a Hellfire missile on Jane Fonda?” Paul asked.
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Now there was a question sure to rouse the sleepy-eyed in the Senate chamber! When the Kentucky senator went down this road he touched a nerve—in fact, several nerves—that broadened the debate into something much more consequential in its implications than a delay in Brennan’s nomination. Vietnam was somehow always hovering somewhere over the politics of the present, and bringing up movie star Jane Fonda’s supposed role in giving aid and comfort to the enemy by visiting Hanoi drew attention to the killing of U.S. citizen Anwar al-Awlaki by a drone strike in 2011.

Holder saw danger ahead if he did not add some clarification. He sent Rand Paul a short letter emphasizing that the president did not have the authority to use drones against Americans not “engaged in combat” on U.S. soil. So Jane Fonda would have been spared, if that was what worried Paul. But both men were trailing ambiguities in their wake. “Engaged in combat,” for example, could have several meanings. Imploring a crowd to go occupy a ROTC building? Had there been drones back then, would such speeches be called “engaging in combat”? Fanciful, yes, at least in that era—but a lot had changed in terms of what the government could or could not do
besides read e-mails since 9/11. Also, there were many more citizens around with big stakes in the fate of seldom-discussed places (such as, say, Chechnya) and who were angry about American policies and determined to strike a blow for some cause. Yet Paul claimed a victory for the Constitution. “In the end,” he said, “I think it was a good healthy debate for the country to finally get an answer that the Fifth Amendment applies to all Americans.”
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Holder and Paul appeared to be talking about two different situations. But there was at least a symbolic connection, for what did the term
combatant
really mean, on or off U.S. soil? The charges against Awlaki surfaced again when the surviving 2013 Boston Marathon bomber, Dzohokar Tsarnaev, said he and his dead brother had “viewed the Internet sermons of Anwar al-Awlaki” and had been inspired in part by the Muslim preacher.
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We do not have a transcript of the initial bedside interrogation, and it was conducted without Miranda warnings under post–9/11 rulings regarding public safety exceptions, but there is no reason to doubt that Dzohokar did say he and his brother were influenced by Awlaki’s sermons. He denied, however, having had any contact with the preacher. More to the point, Dzohokar also said that he was motivated by the wars in Iraq and Afghanistan, which he saw as anti-Muslim crusades. But, not surprisingly, news organizations leapt upon the name Awlaki. A CNN report headlined “From the Grave, the Cleric Inspiring a New Generation of Terrorists” stated, “That’s as of now, that’s what Dzhokhar is saying. And we should say we’ve seen this before, this is one of the reasons why the cleric, Anwar al-Awlaki put up videos online. He’s now—he’s now been killed by a drone strike. But that’s why he did it, to radicalize individuals in different parts of the world.”
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It appeared that, for CNN, the strike against Awlaki was perfectly justified to eliminate such a menace. But the claim that he radicalized individuals in different parts of the world from beyond the grave suggests something else: that the killing of Awlaki by an American drone had made him a martyr. Far from proving the worth of drone assassinations, the evidence would indicate killing him did the opposite.

Whatever one thinks about the debates over the Awlaki role in the Boston Marathon bombings, the Rand Paul filibuster had an immediate effect in lessening public support for drone warfare, at least in terms of attacks on American citizens. Polls suggested that support for attacks on Americans abroad declined by 13 percent among Republicans and 17 percent among Democrats.
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Effectiveness, meanwhile, had become one of the most contested questions regarding drones. The administration pointed to the declining number of drone strikes in Pakistan as proof that they were effective in eliminating terrorists. But if martyrs were created by such strikes, did that indicate success over the long run? By the end of Obama’s first term, more than 92 percent of Pakistanis disapproved of his leadership; and, perhaps more important, more than half of those polled, 55 percent, believed that closer contact between the West and the Muslim world was more of a threat than a benefit for the latter.
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It was not Rand Paul’s filibuster alone that forced a serious debate on drone warfare’s implications, of course; it was the administration’s carefully phrased responses about drone warfare over the four years plus since Obama had entered the White House. Even when trying to prevent the door from opening wider, Attorney General Holder had considerable trouble finding the right words. And that was in large part because Congress had abandoned its duty to guard against White House “mission creep” after 9/11, with the executive branch assuming it had sole responsibility for formulating national security policy. So Rand Paul’s impact can be exaggerated, but he did pull a lever that threw open a huge truckload of unanswered questions that tumbled noisily onto the steps of the Capitol.

He received enough attention, moreover, to make others take a look at that pile and realize you couldn’t keep walking around it to get into the building. Illinois senator Richard Durbin, a steadfast Obama loyalist throughout the rocky days of the president’s first term, wasted little time in suggesting that Congress was uneasy with the drone policy (or lack thereof) and that he was in touch with people in the White House about the need for a full accounting of
the situation and what could be done about it. In a wide-ranging interview with the
Wall Street Journal
, Durbin delivered a critique not about specific military policies but about the entire framework of national security policy since 9/11, beginning with how the original Authorization for Use of Military Force (AUMF) had been stretched to cover a map of the world.

From a constitutional viewpoint, it goes to this authorization for the use of military force. I don’t believe many, if any, of us believed when we voted for that—and I did vote for it—that we were voting for the longest war in the history of the United States and putting a stamp of approval on a war policy against terrorism that, 10 years plus later, we’re still using. So there are unanswered questions about that authorization, the use of military force, which we’re going to get into, and then complex questions, such as where can we use drones as a lethal weapon, against whom? What are the checks and balances of the system? Is this a wide open opportunity for any president to use lethal force anywhere against anyone?

Now, the good news is the president, this president, has invited us to establish what he calls a legal architecture on the use of drones, and I think we should. I’ve been in contact with folks at the national security level in the White House to talk about this hearing, and I hope we start to answer or at least address some of the key policy questions that flow from this at this hearing.
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The hearings Durbin held in late April opened with a telling announcement that these were, in fact, the first ever on drone warfare. As the chair of the Subcommittee on the Constitution, Civil Rights and Human Rights of the U.S. Senate Committee on the Judiciary, he opened the session by saying, “More transparency is needed to maintain the support of the American people and the international community” in regard to drone strikes. Then he added, “I am disappointed that the administration declined to provide witnesses to testify at today’s hearing,” a statement that drew support from other senators of both parties. Clearly, Durbin was not
willing to play along any longer with the “trust us” mantra the White House had thrown over the drones since 2009.

The president, said Durbin, had a “unique responsibility” to protect and defend the country. His authority to do so, however, was based upon the rule of law, “which has been abused during times of war.” This was, wrote a reporter for the
Miami Herald
, an apparent reference to George W. Bush and torture. But Durbin insisted it also referred to drone strikes. “There are long-term consequences, especially when these airstrikes kill innocent civilians. . . . That’s why many in the national security community are concerned that we may undermine our counterterrorism efforts if we do not carefully measure the benefits and costs of targeted killing.”
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Durbin’s hearings were notable for the dramatic testimony from a Yemeni witness who had seen the aftermath of drone strikes—another big first in congressional responses to the White House’s continued insistence upon the precision of military weapons. Farea al-Muslimi, a Yemeni activist and journalist who had studied in the United States, told the senators about a village that was bombed the week before the hearings. He testified that while the attack killed five suspected members of al Qaeda, the raid also “terrified the region’s poor farmers.” The purported central target, the well-known figure Hamid al-Radmi, could have been apprehended instead of assassinated. “The Yemeni government could easily have found and arrested him,” the witness testified. “Even the local government could have captured him if the U.S. had told them to do so.”
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Here was a direct challenge to Washington’s persistent claim that targets were selected because it was impossible to get at them in any other way, because of either unfriendly terrain or high risk of casualties for American soldiers. Aside from the psychological collateral damage done to the village, and the resulting hatred for the United States it caused in wider regions of Yemen, Muslimi had exploded the contention that capture was always chosen over using lethal force when possible. Micah Zenko, a fellow of the Council on Foreign Relations and a commentator on drone warfare, followed up the hearing by wryly noting that new CIA head “John Brennan tells policymakers to read earlier comments by John Brennan for
any clarification” on how the program works. He left it at that, since it said all that need be said about the administration’s ring ‘round-the-mulberry-bush attitudes.
¹⁴

Even before the hearings Durbin had raised his questions about the original AUMF and what it had become: blanket approval for almost any military or clandestine action the administration wished to use anywhere. Here was another break with post–9/11 orthodoxy. Indeed, even as the Democratic senator was raising questions about the AUMF, other voices were calling for a new law to expand its scope to include still more contingencies. The original law was vague enough, giving the Bush and Obama White Houses the supposed authority to carry out attacks on “associates” of those guilty of perpetrating the 9/11 attacks. “The farther we get away from 9/11 and what this legislation was initially focused upon,” a senior Obama official said, “we can see from both a theoretical but also a practical standpoint that groups that have arisen or morphed become more difficult to fit in.”
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Courts had already expanded the original AUMF whenever the White House requested authority to include associates of al Qaeda, even though that word
associates
was not used in the original legislation. Now intelligence agencies in the administration were trying to see if it could be enlarged still further to include “associates of associates.” Some in the administration were trying to halt the process, with one anonymous source saying, “You can’t end the war if you keep adding people to the enemy who are not actually part of the original enemy.”
¹⁶

A related issue was raised at the hearings by Rosa Brooks, a Georgetown University law professor who had been a Pentagon consultant and was a frequent commentator on international affairs. Most of the debate on drones, she noted, focused on the administration’s Orwellian interpretation of the term “imminence,” but Obama had espoused an equally elastic theory of sovereignty: “In a nutshell, the U.S. legal theory of sovereignty is this: ‘We have it; you don’t.’ ” But to blame only conservatives for the assumption that the United States enjoyed the right to intervene with drones wherever it wished ignored the entire reordering of the international
system after World War II. The famous white paper on the legality of drone strikes posited that the United States could strike a target where a state was “unwilling or unable to” suppress an imminent threat. Her point, however, was not that President George W. Bush had come along and used 9/11 to wage two wars on the flimsy excuse of Saddam Hussein’s supposed weapons of mass destruction but the larger question of how “human rights norms have done as much to erode traditional ideas of sovereignty as have more U.S.-centric theories of counterterrorism.” In essence, she said, both the human rights community and the U.S. counterterrorism community increasingly shared a similar view of sovereignty as a privilege states can earn or lose, rather than an inherent right of statehood.
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The point was that humanitarian intervention, good intentions, and the like were cousins of liberal imperialism. Her authority for such a statement was former UN secretary-general Kofi Annan, who asserted in 1999, “When we read the [UN] Charter today, we are more than ever conscious that its aim is to protect individual human beings, not to protect those who abuse them.” She then tied this to the International Commission on Intervention and State Sovereignty’s report on the fundamental duty of sovereign states to protect their populations, which was published after 9/11 but begun well before then. Sovereignty required states to protect their peoples against repression; insurgency; internal war; and, where the “state is unwilling or unable to halt or avert it, the principle of nonintervention yields to the international responsibility to protect,” according to the report. The commission was an ad hoc body formed under the auspices of the United Nations that was working on its report at the time of the 9/11 attacks. Its major focus was on the terrible events in Rwanda and Kosovo.