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Obama’s Kill Rules Keeping Obama From Killing

drone-strike-digital

President Obama’s new rules for killing Americans with drones are proving inconvenient.

AP‘s Kimberly Dozier (“OBAMA OFFICIALS WEIGH DRONE ATTACK ON US SUSPECT“):

The case of an American citizen and suspected member of al-Qaida who is allegedly planning attacks on U.S. targets overseas underscores the complexities of President Barack Obama’s new stricter targeting guidelines for the use of deadly drones.

The CIA drones watching him cannot strike because he’s a U.S. citizen. The Pentagon drones that could are barred from the country where he’s hiding, and the Justice Department has not yet finished building a case against him.

Four U.S. officials said the American suspected terrorist is in a country that refuses U.S. military action on its soil and that has proved unable to go after him. And Obama’s new policy says American suspected terrorists overseas can only be killed by the military, not the CIA, creating a policy conundrum for the White House.

There are all manner of issues we should be concerned with regarding the ability of our government to kill our citizens; the organization that employs the trigger pullers is not prominent among them.

Two of the officials described the man as an al-Qaida facilitator who has been directly responsible for deadly attacks against U.S. citizens overseas and who continues to plan attacks against them that would use improvised explosive devices.

The officials said the suspected terrorist is well-guarded and in a fairly remote location, so any unilateral attempt by U.S. troops to capture him would be risky and even more politically explosive than a U.S. missile strike.

White House press secretary Jay Carney said Monday he would not comment on specific operations and pointed to Obama’s comments in the major counterterrorism speech last May about drone policy.

“When a U.S. citizen goes abroad to wage war against America and is actively plotting to kill U.S. citizens, and when neither the United States, nor our partners are in a position to capture him before he carries out a plot, his citizenship should no more serve as a shield than a sniper shooting down on an innocent crowd should be protected from a SWAT team,” Carney said, quoting from Obama’s speech last year.

Under new guidelines Obama addressed in the speech made to calm anger overseas at the extent of the U.S. drone campaign, lethal force must only be used “to prevent or stop attacks against U.S. persons, and even then, only when capture is not feasible and no other reasonable alternatives exist to address the threat effectively.” The target must also pose “a continuing, imminent threat to U.S. persons” — the legal definition of catching someone in the act of plotting a lethal attack.

That was the basic decision matrix in the Justice Department white paper on the subject leaked a year ago and which I analyzed for The National Interest. The test seems reasonable enough and, if applied strictly, would eliminate most of the slippery slope concerns. As I noted at the time,

There’s no denying that al Qaeda poses a unique threat to the safety of American citizens. Operating in ungoverned spaces of Pakistan, Yemen, and elsewhere, they’re largely out of the reach of traditional law enforcement. If al-Awlaki or Khan were performing the exact same acts in Cleveland—or, indeed, London, Paris, or Sydney—they would have been targeted for arrest and extradition, not assassination.

My concern wasn’t so much with the rubric but the fact that president was deciding to implement it on his own accord and that we had to take his word that it was being followed:

Even so, American citizens should nonetheless be wary of granting the president the power to single out citizens for killing based simply on his own judgment. Aside from being plainly unconstitutional, it’s simply too much trust to place in a single individual. At the very least, the rules ought to be spelled out in legislation that has passed both Houses of Congress and survived judicial scrutiny for constitutionality rather than made internally.

Further, in addition to checks and balances, there has to be more transparency. The notion that the government can compile a list of citizens for killing, not tell anyone who’s on it or how they got there, is simply un-American. Surely, a modern version of a WANTED: DEAD OR ALIVE notice could be publicly circulated, with a listing of the particulars. Maybe the named individual would turn himself in rather than wait for the drones to find him. Or maybe he’d hire an attorney to present evidence he’s not actually an imminent threat to American citizens.

While I applaud President Obama for wrestling with the issue and announcing tighter rules—and tend to think military operations ought be carried out by the military, not intelligence services—I’m rather dubious of the military/intelligence distinction in this particular instance. If the killing is going to take place in a country where we’re not at war and where the host government has not given us permission to operate, there’s no obvious reason why it makes any difference whether the CIA or the Air Force is doing the deed.  Indeed, the administration admits as much:

The senior administration official confirmed that the Justice Department was working to build a case against the suspected terrorist. The official said, however, the legal procedure being followed is the same as when the U.S. killed militant cleric and former Virginia resident Anwar al-Awlaki by drone in Yemen in 2011, long before the new targeted killing policy took effect.

The official said the president could make an exception to his policy and authorize the CIA to strike on a onetime basis or authorize the Pentagon to act despite the possible objections of the country in question.

The Justice Department, the Pentagon and the CIA declined to comment.

If the target is an American citizen, the Justice Department is required to show that killing the person through military action is “legal and constitutional”— in this case, that the Pentagon can take action against the American, as the administration has ruled him an enemy combatant under the Authorization for Use of Military Force, a resolution Congress passed a week after the 9/11 attacks to target al-Qaida.

“So little has changed since last year, when it comes to government secrecy over killings,” said Amnesty International’s Naureen Shah on Monday. “The policy is still the stuff of official secrecy and speculation, when it should be a matter of open debate and explicit constraints.”

Again, I don’t mind our state secrets being secret. My concern is the lack of checks and balances, not the lack of public disclosure.  And, it’s worth keeping in mind, we’re talking about an extremely small set of cases:

The administration says U.S. drones have killed four Americans since 2009, including al-Awlaki, who officials said was actively plotting to kill U.S. citizens.

Attorney General Eric Holder said the three other Americans were killed by drones, but were not targeted. The three are Samir Khan, who was killed in the same drone strike as al-Awlaki; al-Awlaki’s 16-year-old son, Abdulrahman, a native of Denver who was killed in Yemen two weeks later; and Jude Kenan Mohammed, who was killed in a drone strike in Pakistan.

I’d actually missed the news on Mohammed, who had been previously arrested in Pakistan, escaped, and was later killed in a strike on a higher value target. So, not only is the grand total of Americans killed under the current policy four, only one—Anwar al-Awlaki—was actually targeted individually; the others just happened to be in the wrong place at the wrong time.

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About James Joyner
James Joyner is the publisher of Outside the Beltway, an associate professor of security studies at the Marine Corps Command and Staff College, and a nonresident senior fellow at the Atlantic Council. He's a former Army officer and Desert Storm vet. He has a PhD in political science from The University of Alabama. Views expressed here are his own. Follow James on Twitter.

Comments

  1. C. Clavin says:

    But Obama is a lawless tyrannical King.
    He don’t need no stinking rules.

    Like or Dislike: Thumb up 2 Thumb down 1

  2. Tyrell says:

    The situation here is that you have a person who is working and planning to kill as many innocent people as he can. If circumstances limit your actions then you have to do whatever means necessary to stop him from carrying out his plan. We are talking about people who are willing to go down with their plan. You might get one chance to stop that person. You wouldn’t have time to get permission from Congress, obtain some sort of warrant, or work out details with the country he is hiding in .If lots of American lives are in the balance, it requires quick action.

    Like or Dislike: Thumb up 0 Thumb down 2

  3. KM says:

    This is really simple and doesn’t require a lot of hand wringing-

    If he is actively trying to kill or maim US citizens with the intent of striking a blow at the USA as a nation, then he is, to put it lightly, a treasonous son of a bitch. If you declare yourself the Enemy, we will gladly take you at your word. As far as I’m aware, treason can carry the death penalty. If he would like to submit himself to the courts, we can do it the long way but the battlefield is his chosen hill to die on, so to speak. We can’t expect everyone to play by our rules and show up at 9am with a lawyer to the bench and plead their case. We can’t expect to consistently find a smoking gun or evidence beyond a reasonable doubt that would meet the stringent evidence rules (Fruit of the poisonous tree, indisputable DNA, etc) from the chaos.
    Traditionally the battlefield has been a great way to deal with traitors – they chose to make a stand (their defense) and we take his ass out (prosecution rests).

    We hamstring ourselves and they know it. This isn’t sinking to their level or sliding down the slippery slope of what-ifs and eroding values. It’s simple acknowledgement that the formalized court of law route cannot always work in a warzone. Practical adaptations need to be made without the hysteria of OMG They Can Kill You At Home Now!!

    Like or Dislike: Thumb up 2 Thumb down 1

  4. James Joyner says:

    @Tyrell: Aside from that being the path to tyranny, it doesn’t describe the situation at hand. These aren’t hot pursuit situations.

    Like or Dislike: Thumb up 6 Thumb down 0

  5. stonetools says:

    I think anti drone guys believe the US shouldn’t act until it’s proved to their satisfaction that this American actually killed some innocent Americans. Then, and maybe only then, will they allow the US military to act against this guy.
    Crazy, I know, but this seems to be the antidrone activists’ standard.

    Like or Dislike: Thumb up 0 Thumb down 0

  6. C. Clavin says:

    I’m waiting for Italy to take out Amanda Knox with a drone.

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  7. James Joyner says:

    @stonetools: To be clear: I’m not an “anti-drone guy.” Drones—or remotely piloted vehicles, or whatever we’re calling them—are a tool and, for the most part, a good one. In most instances, I prefer using RPVs to manned aircraft. The question here is who decides who to kill and how do we safeguard due process.

    Like or Dislike: Thumb up 1 Thumb down 0

  8. OzarkHillbilly says:

    That AUMF continues to do some heavy lifting. Something tells me the GOP dominated Congress of 2001 never would have knowingly approved these rules for a black man.

    On the slightly less snarky side, the President has it within his powers as Commander in Chief to order millions killed in a nuclear flash, but we obsess over the killing of a single individual that has declared his country of origin to be his blood sworn enemy. Proving once again the difference between a conqueror and a murderer.

    On the serious side, it is well within the powers of Congress to do something about this. They could pass laws setting up tribunals made up of members of Congress (intelligence committee members?) or a Judicial commission made up of rotating judges from the appellate circuit, either of which would have to reach a super majority (in secret or otherwise) decision in favor of said strikes in order for the President to act (this assumes a President would sign such legislation). I feel either would be better than the status quo.

    The fact that Congress has made no attempt to pass any legislation about this situation speaks to the cowardice of your average member of Congress.

    Like or Dislike: Thumb up 4 Thumb down 0

  9. Gustopher says:

    So, not only is the grand total of Americans killed under the current policy four, only one—Anwar al-Awlaki—was actually targeted individually; the others just happened to be in the wrong place at the wrong time.

    Well, then, the answer is simple — wait for the guy we want to kill to stand next to some foreign guy, and then blow up that foreign guy.

    Like or Dislike: Thumb up 2 Thumb down 1

  10. Scott F. says:

    James –

    Some follow-up questions to your National Interest commentary:

    Even so, American citizens should nonetheless be wary of granting the president the power to single out citizens for killing based simply on his own judgment. Aside from being plainly unconstitutional, it’s simply too much trust to place in a single individual.

    Aren’t the new rules in place addressing this? The CIA and DOD are being held in check as the DOJ builds the legal case against this suspect. This isn’t an individual acting on their own.

    The notion that the government can compile a list of citizens for killing, not tell anyone who’s on it or how they got there, is simply un-American. Surely, a modern version of a WANTED: DEAD OR ALIVE notice could be publicly circulated, with a listing of the particulars. Maybe the named individual would turn himself in rather than wait for the drones to find him. Or maybe he’d hire an attorney to present evidence he’s not actually an imminent threat to American citizens.

    Obama administration officials are telling the AP(!) that this man is WANTED. Doesn’t that serve the purpose of your wanted poster? Surely if there is a terrorist out there that is inclined to turn themselves in, this public threat of assassination should be enough encouragement for them to do so, don’t you think? I want more transparency, too, so I’m glad we are hearing that these deliberations are going on. What level of transparency do you think would suffice?

    At the very least, the rules ought to be spelled out in legislation that has passed both Houses of Congress and survived judicial scrutiny for constitutionality rather than made internally.

    This is a joke, right? Congress has been challenged to deal with this over and over again. With the exception of a few individuals, they don’t want to touch it with a 10,000 foot pole. You can’t blame the Executive branch for trying to deal with the steaming pile the Legislative branch has tossed over the wall.

    Like or Dislike: Thumb up 1 Thumb down 0

  11. James Pearce says:

    @James Joyner:

    The question here is who decides who to kill and how do we safeguard due process.

    Are there any more presidential nominations that Rand Paul can filibuster? If so, maybe we can get him to politicize the issue again? I bet it would work this time…..

    Like or Dislike: Thumb up 0 Thumb down 0

  12. KM says:

    @OzarkHillbilly:

    the President has it within his powers as Commander in Chief to order millions killed in a nuclear flash, but we obsess over the killing of a single individual that has declared his country of origin to be his blood sworn enemy.

    Ah, but those millions weren’t One of Us while That Guy (nominally) is! And if the government can kill One of Us (who doesn’t want to be One of Us) that means by the transitive property that they can kill me too!!! Who cares about innocent people somewhere else in the world, this is a distant, nebulous threat to my own neck! That could be me one day!

    I understand when rare individuals like James express a concern for due process as it is only right and proper that we respect the underlying Constitutional fundamentals of our world and how our actions relate to them. But honestly most anti-drone protestors come across as either A) worried the evil gubmint is out to get them in glorious genocidal paranoia or B) sounding like Helen Lovejoy with “Won’t anyone think of the terrorists?!”

    Like or Dislike: Thumb up 3 Thumb down 0

  13. James Pearce says:

    @OzarkHillbilly:

    That AUMF continues to do some heavy lifting. Something tells me the GOP dominated Congress of 2001 never would have knowingly approved these rules for a black man.

    This raises a less snarky but good point: The Congress that passed the AUMF probably never thought that it would outlive President Bush and still be in place 12 years later.

    Like or Dislike: Thumb up 3 Thumb down 0

  14. OzarkHillbilly says:

    @KM:

    A) worried the evil gubmint is out to get them in glorious genocidal paranoia

    One can paint the same emotions on most of those protesting the NSA’s data collection. I understand there is a problem and can even see on some level people’s getting upset about it, but I just can’t go there myself. So I’ll continue to pay my ACLU dues and figure it will all come out in the wash..

    Like or Dislike: Thumb up 1 Thumb down 0

  15. OzarkHillbilly says:

    @James Pearce: FRANKENSTEIN LIVES! HE LIVES!!! The AUMF is the tax cut of military authorizations. And I have to disagree to this extent: I am quite sure there were a majority (all) of hawks in Congress then, who were just fine with an unlimited Global War on Terror (committed by people not us)(tm) that would last until the end of time so that their favorite industry would never run out of reasons to manufacture.

    Like or Dislike: Thumb up 1 Thumb down 0

  16. KM says:

    @OzarkHillbilly:

    NSA’s data collection

    is not going to kill you – as in, actively seek you out and drop a payload on you. One is a gross violation of privacy for better or worse, one is death. That’s why I can’t take this seriously at all. Quite frankly, by the time we get to their scenarios, we’ve gone past hell in a handbasket. A drone strike on US soil on a regular US citizen would be considered by most/all of the population as an immediately declaration of war on the citizenry. They’re not spinning that one at all. Normal rules need not apply; hell, we might not have a Constitution left after that’s gonna go down.

    I agree with you on the whole regarding this – I just think people are being oddly overzealous on this issue in defense of someone who’d gladly blow them up in return. The only reason I can think of them giving that much of a damn about remotely blowing a terrorist up is they are really and truly worried it will be used against them.

    Like or Dislike: Thumb up 0 Thumb down 0

  17. James Pearce says:

    @KM:

    The only reason I can think of them giving that much of a damn about remotely blowing a terrorist up is they are really and truly worried it will be used against them.

    Perhaps….

    I think with this drone stuff and the NSA stuff, it’s mostly a bunch of poseurs competing for the Best Civil Libertarian award for all their Facebook friends. It’s in-group signaling. It’s not a coherent or moral philosophy.

    Like or Dislike: Thumb up 0 Thumb down 0

  18. OzarkHillbilly says:

    @James Pearce:

    it’s mostly a bunch of poseurs competing for the Best Civil Libertarian award

    Exactly. Again, I see the problem with both, for one I see a # of possible solutions (drone kills), and for the other I see no feasible solution (the “privacy cat” is out of the bag and I don’t see him going back in, not like it used to be anyway).

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