The Unanswered Question About Drones
Rand Paul's questions about the nation's drone war were only the beginning.
NYU Law Professor Ryan Goodman notes that, notwithstanding the Obama Administration’s response to Senator Rand Paul’s question about the use of drones on American soil, there remains a far more important, and unanswered, question:
What, exactly, does the Obama administration mean by “engaged in combat”? The extraordinary secrecy of this White House makes the answer difficult to know. We have some clues, and they are troubling.
If you put together the pieces of publicly available information, it seems that the Obama administration, like the Bush administration before it, has acted with an overly broad definition of what it means to be engaged in combat. Back in 2004, the Pentagon released a list of the types of people it was holding at Guantánamo Bay as “enemy combatants” — a list that included people who were “involved in terrorist financing.”
One could argue that that definition applied solely to prolonged detention, not to targeting for a drone strike. But who’s to say if the administration believes in such a distinction?
American generals in Afghanistan said the laws of war “have been interpreted to allow” American forces to include “drug traffickers with proven links to the insurgency on a kill list,” according to a report released in 2009 by the Senate Foreign Relations Committee, then led by John Kerry, now the secretary of state.
The report went on to say that there were about 50 major traffickers “who contribute funds to the insurgency on the target list.” The Pentagon later said that it was “important to clarify that we are targeting terrorists with links to the drug trade, rather than targeting drug traffickers with links to terrorism.”
That statement, however, was not very clarifying, and did not seem to appease NATO allies who raised serious legal concerns about the American targeting program. The explanation soon gave way to more clues, and this time it was not simply a question of who had been placed on a list.
(…)
Mr. Holder’s one-word answer — “no” — is not a step toward the greater transparency that President Obama pledged when he came into office, but has not delivered, in the realm of national security.
By declining to specify what it means to be “engaged in combat,” the letter does not foreclose the possible scenario — however hypothetical — of a military drone strike, against a United States citizen, on American soil. It also raises anew questions about the standards the administration has used in deciding to use drone strikes to kill Americans suspected of terrorist involvement overseas — notably Anwar al-Awlaki, the American-born cleric who was killed in a drone strike in Yemen in 2011.
Is there any reason to believe that military drones will soon be hovering over Manhattan, aiming to kill Americans believed to be involved in terrorist financing? No.
But is it well past time for the United States government to specify, precisely, its views on whom it thinks it can kill in the struggle against Al Qaeda and other terrorist forces? The answer is yes.
Goodman has an excellent point here. As I noted, the questions that Rand Paul raised in his filibuster were important but they didn’t really touch on the broader question of how we’ve been running the War On Terror for nearly the past dozen years. It’s a question that applies not just to how we run the drone campaign and targeted killings, but to the very essence of the “war” itself. For example, as Goodman notes elsewhere in the piece, included among the groups of people identified as “enemy combatants” and detained at the prison complex at Guantanamo Bay are people identified primarily as financiers of terror groups. It’s fairly clear that targeting the financiers of terrorism is an acceptable tactic and one that is likely to have no small degree of success in limiting the ability of groups to carry out attacks. However, does that mean that they belong in the same classification as people like Khalid Shiek Mohammed, or that they should be indefinitely detained rather than prosecuted in a Federal Court and sent to a Federal Prison? Assuming for the moment that indefinite detention is an acceptable practice, and I would suggest that the jury is still out on that one, it strikes me that the definition of who is eligible for this extraordinary punishment is far too broad.
This also applies to the drone campaign. As Goodman notes, what the Obama Administration (and the Bush Administration) classifies as “engaged in combat,” and thus eligible to be targeted for killing, has never been specifically laid out and has been expressed in such vague and general terms that do nothing but raise even more questions about how far they would go if given the opportunity. Given the fact that these drone strikes have done nothing but stir resentment in places like Afghanistan and Pakistan, it strikes me that we deserve some kind of answer from the Administration about what standard they’re using and who, exactly, they contend they have a right to kill.
Oh, that’s a “fact” now?
Sorry, man, but this post should be headlined: “Moving Goalposts and Hoping No One Notices.”
Can you think of a reason why who we can target is “expressed in such vague and general terms?” I can think of several.
Just what we need, loopholes for terrorists.
Sure. And it’s a fact that Rand Paul is a great man 🙂
@James Pearce (Formerly Known as Herb): Do you really have no problem with allowing the government to define any term in a way that allows it to essentially ignore any restraint on its action?
Yeah but, but, but, but…
You know Doug you make fun of drum circles but they ( we) were right about Iraq…you were wrong.
Now you think you’re onto something…but it realy comes down to you just not liking Obama… For whatever reason. (it’s not drones).
There were no new answers given as a result of Paul’s filibuster. All it accomplished was shifting the exception for “persons engaged in combat” from the question to the answer, without providing new information.
We went from:
Q. Does the government have the right to kill Americans on American soil with drones?
A. Only if they are persons engaged in combat.
to:
Q. Does the government have the right to kill Americans on American soil who are not persons engaged in combat with drones?
A. No.
So we wasted 13 hours of time in the Senate and got the same info we had before. Sorry if I am not proclaiming Rand Paul to be the greatest person since Ayn Rand.
If Rand was serious…and I’ve said this repeatedly…he would. E pushing legislation. I would welcome that and…depending on the details…support it.
He’s not serious. He’s an adolescent who wants to be President. Good luck. Doug will support him. Call it unconditional love.
I think y’all are jumping on Doug a bit too harshly.
That the drone strikes are causing resentment is a fact. If you don’t believe it, just go over to Dawn.com, an English-language Pakistani news site, enter “drone” into the search bar, and start reading.
The part that’s a matter of opinion is whether the security benefits to U. S citizens outweigh the costs to innocent Pakistani and Afghan citizens. I note that no one in the comments above has presented even the flimsiest of cases in their defense. Most cases I’ve seen are of the post hoc propter hoc “tiger repellent” variety.
The belief that killing Taliban leaders ipso facto makes us more secure is not a fact. It is a matter of opinion. But I’d be interested in seeing a thoughtful case made.
@Mikey:
Is that a trick question?
I have lots of problems with the War on Terror, but I am not convinced by straw men or slippery slope arguments.
“Allowing the government to ….essentially ignore any restraint on its action?” That’s a straw man. Read the AUMF. It’s broad, yes, but not that broad.
Slippery slope arguments? Like, “if they can bomb Al-Awaki, who can’t they bomb?” Bah…..Hugo Chavez died…of cancer…. and Ahmadin-jihad is still breathing and Kim Jong Un is hanging out with Dennis Rodman, but I’m gonna worry about Obama dropping a bomb on me? Don’t think so.
@James Pearce (Formerly Known as Herb): You may consider it a slippery slope argument, but it’s not. The government continually redefines terms and interprets legislation in whatever ways allow it the maximum latitude of action.
The AUMF is not that broad, but I guarantee you the government’s interpretations of it are.
@Dave Schuler:
Yes, I’ll gladly acknowledge that. It’s causing resentment here in the US. But I don’t think it’s harsh to say this is NOT a fact:
Yes, they have stirred resentment (fact) but they have also done other things as well.
This is true. I do not know whether killing Al-Awaki made us “more secure,” whatever that may mean.
But I have strong suspicions that killing Al-Awaki interrupted whatever terrorist plots he may have been involved in, which is why I’m of the opinion that killing Al-Awaki made us “more secure.”
@Dave Schuler:
Many of us have been skeptical of foreign adventures, including drone combat, going way back.
While we welcome new support, we are probably a little wary of the framing. Right now much is centered on hypothetical attacks on Americans in America. That is a long way removed from the current missions.
Do all Republicans (should I say Libertarians?) rallying to Paul oppose drone over there? Or is their focus really just a reiteration of the Constitution?
“The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it.”
That “cases of rebellion or invasion the public safety may require it” is hardly “film at 11.”
And what then Yemen?
@Dave Schuler:
Our enemy is a system with multiple working parts: Money, Logistics, Planning, Training, Security and Execution. Let’s say each of those jobs involves three people. That’s 18 people all told. Let’s keep it simple and say the purpose of this system is to deliver attacks on US soil.
Kill 2. You’ve just made some portion of the system less functional. Kill 3 and maybe you’ve knocked Planning down by two and Execution down by one. Kill 9 and you’ve eliminated half the system.
Would the system work as well with fewer people? Unlikely. Knowing that they are targeted they would be inclined to use the minimum effective number of people. A system designed to perform a given function using 18 people is highly unlikely to improve its effectiveness with some smaller number — especially since the smaller number is not a result of planning but of factors — drones — beyond their control.
The knowledge of imminent death all by itself imposes inefficiencies on this system. It severely limits communication. It introduces an element of unpredictability. It forces time-wasting security measures. It presumably raises costs.
And ll this assumes that individual talent is irrelevant to the functioning of the system. Are there an infinite number or a finite number of Zawahiris? Doubtful. History is replete with examples of a strategic death – a king, a general — has disastrous effects on the succes of their side.
I don’t think there’s any reasonable doubt that killing members of an enemy organization reduces their effectiveness. The evidence is that there has not been a large attack in the west for quite some time. And we have the testimony of Bin Laden himself who whines a fair amount about the problems caused by drones.
@Dave Schuler:
It seems, then, that the problem is not the use of drones per se, but instead the killing of innocent Pakistani and Afghan citizens. I’m not aware of Al-Awaki’s killing having caused any resentment, but even if it did (as I suspect may have been the case with Bin Laden’s killing), I think there’s a compelling reason to order the killing.
The real issues seem to be whether our military efforts in Af-Pak are capable of improving US security and, if so, whether the use of drones increases or decreases the likelihood that innocent citizens will be killed.
@Dave Schuler:
An easier way to approach it: Imagine the Apple team responsible for designing the iPhone 6, X number of people.
At random times, day or night, a missile kills some number of those people. 2 on Thursday, 1 on Saturday, 4 on Monday.
I think it is self-evident that this would slow the delivery of the next iPhone.
@Spartacus:
If we droned Pakistan from now until the year 3000 we wouldn’t kill as many innocent civilians as we did on August 6, 1945 when we obliterated Hiroshima.
The Japanese got over it. The “resentment” defense is wildly overstated in my opinion. Pakistan has been an ungodly mess since they declared independence. They’ve never managed competent self-government, they are hopelessly corrupt, trapped in endless confrontation with their neighbors, riven by sectarian strife and a rural/urban divide that makes New Yorkers and Arkansans look like brothers.
We didn’t make the mess that is Pakistan. Nor do I believe are we making it worse. Pakistanis need a scapegoat and we’re it. But the problem with Pakistan is Pakistan.
You basically lost me at “NYU law professor.” But just for shits and giggles I read the cited article. And sure enough it was as loopy as a roller coaster at Magic Mountain and as clueless as a college sophomore on mushrooms. Ah, well.
In any event, the answer to the hypothetical question about under what circumstances the Feds would off U.S. citizens in the U.S. with drone strikes is as follows: When it suits them. When it’s necessary. Not before. Not afterwards. Law professors and their ilk are on a need to know basis, and, FYI, Skippy, you don’t need to know.
For the same conceptual reasons why people didn’t need to know the precise details of FDR’s internment program. And for why people didn’t need to know any of the details of the Manhattan Project. The same way people didn’t need to know whether Washington and Rochambeau were going to take on the Yorktown encampment, as opposed to the New York garrison. And for the same conceptual reasons why even to this day people at large are not allowed to know the depths at which our nuclear subs most efficaciously can fire their missiles.
Certain things are for people in power to know. Not spaced out academics. Not Internet mavens. Not young students. Not trust fund babies. People in power. People who need to know.
Morals of the story: Elections are not parlor games. And war is not a debate society.
Sounds to me like you’re asking Congress to micro-manage the war.
Again, I’m fairly certain that air attacks from 20,000 to 30,000 feet also create resentment among the people of Afghanistan too. In fact I suspect the ongoing military presence of Americans in Afghanistan continues to stir resentments.
We all know that if Congress wants answers they can get them without an attention-whoring filibuster. They can call a hearing of the Senate Intelligence Committee and get answers. However, in the wake of the ongoing Republican Benghazi Kabuki, it seems to me that that (honest and responsible inquiry) is not what Republicans are looking for.
@C. Clavin:
You mean like This Legislation?
@Mikey:
Absolutely true.
We have now accounted for Iraq.
Obama’s drone campaign is a reasonable step back from such a “maximum latitude” interpretation. Bush said, “F it. I’m gonna do what I want.” On to Baghdad we went.
Obama says, “F that. Send in the drones.”
I just don’t see how someone can live through the last 75-50 years and be horrified by drones. This is the dream, man. Old vets, missing pieces of themselves, sitting around bars, saying, “Maybe someday we’ll let robots fight our battles.” That day is here. That’s awesome.
Be an optimist, that’s all I’m saying.
I’ll tell you why I think people are leery of the drone program. I don’t think it’s about Pakistan or even weird right-wing paranoia — after all, Pakistan’s always screwed and wingnuts are always paranoid.
Drones feel like a paradigm shift in the nature of war, and maybe life more broadly. What the drone threatens is romantic notions of warfare and this very recent notion of calibrated, controlled wars fought by rules that appeal to our sense of fairness and proportion.
Re romanticism: We still want to believe it’s the white knight vs. the black knight in a test of courage. But war hasn’t been a test of courage in a very long time. It was courage (and esprit and discipline and all the rest) that got men up and over the top of the trenches in WW1, but it was technology — the machine gun, the rapid fire cannon, submarines — that decided the outcome.
We didn’t win WW2 because our guys were braver than the Japanese or Germans. We won because we could produce more and better technology faster than they could.
Re calibrated wars: We lost Vietnam because we decided to forgo our technological advantage: nukes. That restraint was forced on us by mutual assured destruction.
Now we have no serious enemy. No one really capable of destroying us. So, when we go to war now the outcome is never in doubt — if we decide to use all our available tools.
This is a new thing in history. The Romans didn’t wonder whether they had a moral basis for using siege engines. Because we are no longer fighting wars that threaten our existence, we want wars that do minimum damage to our notions of ourselves as moral beings. We can afford to be delicate. We can afford, quite frankly, to lose, to shrug off wars. That’s an interesting change.
The drone represents another milestone in the growing distance between war and manly virtue. And to the peaceably inclined it seems a temptation. In removing all likelihood of pain to our side it upsets the careful moral balancing act we’ve practiced since WW2 and especially since the end of the Cold War. It seems sinful. Too easy. Shouldn’t we be taking risks? Wouldn’t that be more fair? How can we strike a flattering moral pose when we are risking so little? How can we flatter ourselves if what’s really happening is that a guy sipping a fizzy water at a console in Langley is killing people with a game console?
Drones take the bullsh!t out of war: no displays of courage, no risk-taking, no fairness, no way to avoid the fact that we are in the business of killing people. That makes people queasy.
I’m not a romantic and I’m not a big fan of moral posturing when it comes to war. When we fight wars we kill innocent people. Kids, women, unlucky people who just got in the way. It’s appalling business however it is done. But nothing is improved by getting our own people killed. I don’t want a dozen very brave, very dead Marines, just so we can feel a bit less squeamish. And I don’t feel a need to be fair. I don’t need poetry, I just want to kill our enemies by the most efficient means at our disposal.
If you don’t want to kill people, don’t have wars. If you want to have wars, then you’re going to kill people. If you’re going to kill people, do it as effectively and cheaply as possible.
There’s a reason we don’t task the judicial branch with running wars. This is a good foreign policy question, but dragging legal fine points into it isn’t helpful. Wrong tack.
Seems to me the questioners are not satisfied by any answer, which raises the question of it being “concern trolling”, which is a chumps game. Holder should ask them to state what they believe the law is or should be.
@ Stormy…
Yeah…that’s not serious legislation.
But probably the most we can expect.
@michael reynolds:
More likely “Shouldn’t someone else be taking risks?”. Other than that, I agree whole heartedly with your view. As a combat veteran, I’m no fan of war but more efficient is better.
@michael reynolds: Some of us are opposed to the idea of a Presidency with the power to order assassinations at will. Whether that policy is conducted by drones or raids is irrelevant; we object to an executive which, from our perspective, considers itself beyond the law. And we apply those standards whether a Republican or Democrat sits in the oval office.
What drones in particular (due to our stated policy of using them anywhere, anytime whether the country we’re shooting missiles into agrees or not) are doing is accelerating the hardening of global opinion against us. If you follow the non-anglosphere press it becomes apparent much of the world increasingly sees the U.S. as a rogue state.
The problem with drones is that, if you take the risk of life and limb out of waging war, there’s going to be a whole hell of a lot more of it.
@Ben Wolf: If you don’t like a Presidency with the power to assassinate people, then get the bloody Congress to yank back the power.
What we seem to be left with is a bunch of pusillanimous politicians who want to leave all the dirty work in the hands of the Executive, then whine when he does it.
@Dave Schuler:
“That the drone strikes are causing resentment is a fact. If you don’t believe it, just go over to Dawn.com, an English-language Pakistani news site, enter “drone” into the search bar, and start reading.”
And yet Rand Paul’s focus was not on drone strikes in Pakistan. Or Yemen. Or Afghanistan (all of which are places where drone strikes have taken place). It was on the possibility of drone strikes in the US. So your comment has zero to do with Paul’s filibuster, which Doug was praising.
About that resentment argument:
Doug, you might want to reply to this, since it refutes the ” drone strikes are making new enemies” meme that you claim is a fact.
And in the same regard, the proposed law Stormy cited has no limits on the use of drones anywhere but within the US. It is not an attempt to reduce resentment by anyone outside the US due to the use of drones. It’s there so the idiots who think they are going to fight the US Army in the name of FREEDOM!!!!! can think that drones won’t be used against them (even though that’s not what the Obama Administration said).
@michael reynolds:
Following your own example, there’s a simple reason resentment matters: it increases the pool of people who might be inclined to help support an attack on the U.S. In so doing, it muddles the simplistic math you use to make your argument: we might kill X terrorists, while also increasing by Y% the chance that 5X or 10X people might want to attack us.
Irrespective of my moral beliefs, I don’t think that’s a good trade-off, particularly if competent or well-connected people are in that Y%. We’ve had a lot of luck in the fact that much of al-Qaeda seems to have been not very competent.
Finally, I’ll just note that it would take more than several thousand years for Palestinians firing rockets from the Gaza strip to kill as many Israelis as the US killed in Hiroshima. Yet that has not prevented many Israelis from developing extremely deep layers of resentment towards the Palestinians (and vice versa). The Japanese were able to get over it because a horrific war was followed by many decades of peace. When it’s war that last decades instead, people don’t get over it.
FWIW, though: I do think you’re right about drones. I would be as bothered by overuse of Navy SEAL squads, but many people seem to be reacting to the technology more than to the violence.
@Moosebreath:
And it has an far, far broader exception than the administration has articulated for strikes within the U.S.:
This legislation seems to declare as lawful, extra-judicial drone strikes on U.S. citizens, in the U.S., if the the executive branch deems the citizen may imminently cause serious bodily harm to anyone. Holder’s position was that a situation where it could occur was exceedingly unlikely, but perhaps it would be justifiable when a combatant was in the midst of a spectacular attack the nation (he cited 9/11 and pearl harbor).
@Ben:
Exactly. We don´t how many are the countries where the United States is engaged in military warfare.
@Tom Strong:
I don’t think resentment matters much. The Romans were resented by everyone for a thousand years. Didn’t matter. God knows everyone hated and resented the Mongols. Didn’t matter. People resent anyone in power and anyone with wealth and it doesn’t matter, you’ll notice that the powerful almost always stay powerful and the rich stay rich and a bunch of people resent them and who cares?
The Pashtuns are never, ever, ever going to like us. Never. They were the problem, they were the Taliban that supported Al Qaeda. Had we done something especially egregious to earn their enmity prior to September 11, 2001? No, we’d actually helped them. They weren’t motivated by resentment. They were motivated by the fact that they are primitive, backward, violent losers and Bin Laden had ready cash and a good line of quasi-religious b.s.
You know who should resent us? Mexicans. They have a legitimate beef with us. And yet, they don’t seem too worked up. You know who else should hate us? Filipinos. We exploited their revolution to make them our vassals. They still haven’t recovered. But it’s not Filipinos we have to worry about. Or the Japanese whose country we burned down. Or the Germans whose country we burned down while handing half of it over to the Soviets.
Who “resents” us? The Pakistanis? Why? Because we drop bombs in part of their country where their massively incompetent government cannot exercise control? Bullsh!t. They have much bigger problems than us. They have their own government, they have India, they have sectarianism, corruption and a backward economy. We aren’t their problem, they are their problem. We are a convenient scapegoat.
I despise the liberal tendency to blame America first. I have no problem blaming America when it’s fair, but the idea that we are legitimately Pakistan’s problem is absurd. And there is no way to avoid being scapegoated. So let them resent. Let them burn American flags. When they get their act together, form a competent government, gain control of their own territory and stop playing footsie with terrorists we’ll stop the drones.
Pakistan does not have a problem with drones, Pakistan has a problem with being fwcking retarded.
@Ben:
Evidence? Are we at a historically high level of war for the US? We’re out of Iraq, and getting out of Afghanistan.
@Ben Wolf:
As noted to Tom Strong above: screw global opinion.
We are the world’s only superpower. Of course people don’t like us. We have all the money and all the power. What, it’s not enough that we won Miss Universe, we have to also be Miss Popularity?
Of course some people don’t like us. Yes, religious fanatics who believe women who are raped should be arrested and forced to marry their rapist don’t like us. Do you want them to like us? Personally, I’d be worried if Afghan hill tribesmen living in the 13th century did like us. Of course they don’t like us, we embody everything they fear and despise. They’re weak, we’re strong; they’re poor, we’re rich; they’re primitive, we’re sophisticated; they herd goats, we build supercomputers; they treat women like property, we give women AR-15s. They don’t like us, fine: we don’t like them. So what?
The game is not popularity, though we’ve been astonishingly popular given our prominence. The game is power. If you think our foreign policy should be the equivalent of chasing votes in Pashtunistan, I think you need to take a new look at history. We’re not trying to win American Idol, we’re trying to arrange the world in such a way that our country remains the most powerful nation on earth, able to set terms and protect our dominance. If it helps to be liked, fine. But being liked is not the game. Power and control is the game.
Pakistan has nukes and has the technology to produce long range missiles. I would not demise the importance of the popularity of the United States there.
@Andre Kenji:
The Soviets didn’t like us and the Chinese didn’t like us.
That said, I have long considered that it was a terrible mistake allowing the Pakistanis to have nukes. I understand the logic during the Cold War era, but it was long-term very, very stupid.
FWIW, the drone strikes tailed off drastically in 2012, only 8. This year so far, only one, the Mullah Nazir strike. When it became clear the Petreaus/McCrystal strategy of COIN for Afghanistan wasn’t going to work in the time and funding frames anywhere near what the US public would support, we backed off.
http://en.wikipedia.org/wiki/List_of_drone_strikes_in_Pakistan
The Mullah Nazir strike is an example of the complication. He was a Paki Talib, and about the only guy around who could manage to maintain the terms of truce with the Paki Army, but he was doing everything he could to help the Aghan Talibs kill our troops, so we took him out anyway. This practice of taking out the leadership is double edged; take out all the older guys and you wind up with nobody with the political suck to negotiate a truce with, and the best fighters take their place. The best fighters are typically the strongest “believers”.
AFAWK, Bin Laden never clued his Talibani hosts in on 9/11. Need to know basis op. Something the Marines reported from Helmand and the Army from up north -a great many of the young men still didn’t know what happened in NY back in 2001. It’s a different planet.
Some interesting reading: The Oral History of the Taliban.
http://www.thedailybeast.com/newsweek/2009/09/25/the-taliban-in-their-own-words.html
I would submit that none of us have know this in our lifetimes. Nothing new under the sun.
@michael reynolds:
That´s the problem. The United States does not control the world. The Pakistanis did not have to ask permission to the US to build nukes. You are thinking that it does, and it does not, and that´s a dangerous assumption.
But the United States is the country where people thinks that Israel, that sold Jonathan Pollard´s secrets to the the Soviets and sunk the US Liberty, is their greatest ally.
@James Pearce (Formerly Known as Herb):
No, it isn’t, and I’ll tell you why: because the Obama administration has interpreted the AUMF to apply to entities that did not exist on 9/11. And, further, the killing of al-Awlaki was ordered based in large part on his association with one of those entities.
That is a very specific example of the administration applying a maximum-latitude interpretation.
@Mikey:
There you go. You found your loophole.
Terrorist: Why, yes, I’m planning to attack your country –thanks for asking– but my terrorist organization didn’t exist on 9-11, so…..WHUT?