Why just kill? What about capture?
Administration officials have said in speeches that militants are targeted for killing when they pose an imminent threat to the U.S. and capture isn’t feasible. But killing appears to be is far more common than capture, and accounts of strikes don’t generally shed light on “imminent” or “feasible.” Cases involving secret, overseas captures under Obama show the political and diplomatic quandaries in deciding how and where a suspect could be picked up.
This fall, the Washington Post described something called the “disposition matrix” – a process that has contingency plans for what to do with terrorists depending where they are. The Atlantic mapped out how that decision-making might happen in the case of a U.S. citizen, based on known examples. But of course, the details of the disposition matrix, like the “kill lists” it reportedly supplants, aren’t known.
What’s the legal rationale for all this?
Obama administration officials have given a series of speeches broadly outlining the legal underpinning for strikes, but they never talk about specific cases. In fact, they don’t officially acknowledge the drone war at all.
The White House argues that Congress’ 2001 Authorization for Use of Military Force as well as international law on nations’ right to self-defense provides sound legal basis for targeting individuals affiliated with Al Qaeda or “associated forces,” even outside Afghanistan. That can include U.S. citizens.
“Due process,” said Attorney General Eric Holder said in a speech last March, “takes into account the realities of combat.”
What form that “due process” takes hasn’t been detailed. And, as we’ve reported, the government frequently clams up when it comes to specific questions – like civilian casualties, or the reasons specific individuals were killed.
Just last week, a federal judge ruled that the government did not have to release a secret legal memo making the case for the killing of Anwar al-Awlaki, a U.S. citizen. The judge also ruled the government did not have to respond to other requests seeking more information about targeted killing in general. (In making the ruling, the judge acknowledged a “Catch-22,” saying that the government claimed “as perfectly lawful certain actions that seem on their face incompatible with our Constitution and laws while keeping the reasons for their conclusion a secret.”)
The U.S. has also sought to dismiss a lawsuit brought by family members over Awlaki’s death and that of his 16-year-old son – also a U.S. citizen — who was killed in a drone strike.
When does the drone war end?
The administration has reportedly discussed scaling back the drone war, but by other accounts, it is formalizing the targeted killing program for the long haul. The U.S. estimates there Al Qaeda in the Arabian Peninsula has a “few thousand” members; but officials have also said the U.S. cannot “capture or kill every last terrorist who claims an affiliation with al Qaeda.”
Jeh Johnson, who just stepped down as general counsel for the Pentagon, gave a speech last month entitled, “The Conflict Against Al Qaeda and its Affiliates: How Will It End?” He didn’t give a date.
John Brennan has reportedly said the CIA should return to its focus on intelligence-gathering. But Brennan’s key role in running the drone war from the White House has led to debate about how much he would actually curtail the agency’s involvement if he is confirmed as CIA chief.
What about backlash abroad?
There appears to be plenty of it. Drone strikes are deeply unpopular in the countries where they occur, sparking frequent protests. Despite that, Brennan said last August that the U.S. saw,“little evidence that these actions are generating widespread anti-American sentiment or recruits.”
General Stanley McChrystal, who led the military in Afghanistan, recently contradicted that, saying, “The resentment created by American use of unmanned strikes … is much greater than the average American appreciates. They are hated on a visceral level, even by people who’ve never seen one or seen the effects of one.” The New York Times recently reported that Pakistani militants have carried out a campaign of brutal reprisals against locals, accusing them of spying for the U.S.
As for international governments: Top U.S. allies have mostly kept silent. A 2010 U.N. report raised concerns about the precedent of a covert, boundary-less war. The President of Yemen, Abdu Hadi, supports the U.S. campaign, while Pakistan maintains an uneasy combination of public protest and apparent acquiescence.
Who to Follow
For reporting and commentary on the drone war on Twitter:
@drones collects op-eds and news on well, drones. (Run by members of the Electronic Frontier Foundation, which has been outspoken about privacy concerns in the use of domestic drones, but it also covers national security.)
@natlsecuritycnn has breaking news.
@Dangerroom from Wired covers national security and technology, including a lot on drones.
@lawfareblog covers the drone war’s legal dimensions.
@gregorydjohnsen is an expert on Yemen, who is closely following the war there.
@AfPakChannel from the New America Foundation and Foreign Policy tweets news and commentary on Afghanistan and Pakistan.
This post was originally published by ProPublica.
U.S. Air Force photo by Master Sgt. Stanley Thompson
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