By Jameel Jaffer
15 November 2016
The sun had yet to rise when missiles launched by CIA drones struck a clutch of buildings and vehicles in the lower Kurram tribal agency of Pakistan, killing four or five people and injuring another. It was February 22, 2016, and the American drone campaign had entered its second decade. Over the next weeks, officials in Washington and Rome announced that the US military would use the Sigonella air base in Sicily to launch strikes against targets in Libya. American strikes in Yemen killed four people driving on a road in the governorate of Shabwah and eight people in two small villages in the governorate of Abyan. A strike in Syria killed an Indian citizen believed to be a recruiter for the self-styled Islamic State, and another strike killed a suspected Islamic State fighter in northern Iraq. A particularly bloody series of drone strikes and airstrikes in Somalia incinerated some 150 suspected militants at what American officials described as a training camp for terrorists. In south-eastern Afghanistan, a series of drone strikes killed 12 men in a pickup truck, two men who attempted to retrieve the bodies, and another three men who approached the area when they became worried about the others.
Over just a short period in early 2016, in other words, the United States deployed remotely piloted aircraft to carry out deadly attacks in six countries across central and south Asia, North Africa, and the Middle East, and it announced that it had expanded its capacity to carry out attacks in a seventh. And yet with the possible exception of the strike in Somalia, which garnered news coverage because of the extraordinary death toll, the drone attacks did not seem to spark controversy or reflection. As the 2016 presidential primaries were getting under way, sporadic and sketchy reports of strikes in remote regions of the world provided a kind of background noise – a drone in a different sense of the word – to which Americans had become inured.
Senior officials in the administration of President Barack Obama variously described drone strikes as “precise,” “closely supervised,” “effective,” “indispensable,” and even the “only game in town” – but what they emphasized most of all is that the drone strikes they authorized were lawful.
In this context, though, “lawful” had a specialized meaning. Except at the highest level of abstraction, the law of the drone campaign had not been enacted by Congress or published in the US Code. No federal agency had issued regulations relating to drone strikes, and no federal court had adjudicated their legality. Obama administration officials insisted that drone strikes were lawful, but the “law” they invoked was their own. It was written by executive branch lawyers behind closed doors, withheld from the public and even from Congress, and shielded from judicial review.
Secret law is unsettling in any context, but it was especially so in this one. For decades the US government had condemned targeted killings, characterizing them as assassinations or extrajudicial executions. On its face, the drone campaign signified a dramatic departure from that position – a departure that demanded explanation, at the very least. It was far from obvious what distinguished American drone strikes from the targeted killings the United States had historically rejected as unlawful. Nor was it clear how these targeted killings could be reconciled with international human rights law, with a decades-old executive order that bans assassinations, with the constitutional guarantee of due process, or, for that matter, with domestic laws that criminalize murder.
The scale of the drone campaign, and the human cost of it, made government secrecy even more disquieting. The United States was carrying out lethal strikes not only on actual battlefields, but in places far removed from them as well. The first strike President Obama authorized killed at least nine people in the tribal areas of Pakistan. An early strike in Yemen, albeit one carried out with cruise missiles rather than drones, killed two families, including as many as 21 children – and, according to the New York Times, “left behind a trail of cluster bombs that subsequently killed more innocents.” By the end of President Obama’s first term, American strikes had killed several thousand people in Pakistan, Yemen, and Somalia, including many hundreds of civilian bystanders. The deaths of innocents raised sharp moral questions, and the moral questions gave urgency to the legal ones.
Early in 2010, American media organizations began to report that Anwar al-Awlaki, an American, had been added to “kill lists” maintained by the CIA and JSOC – the US military’s Joint Special Operations Command. Awlaki had once been a preacher at a mosque near Falls Church, Virginia. He had condemned the September 11 attacks, encouraged “interfaith dialogue,” and been invited to dine at the Pentagon. In the weeks after the attacks, however, the FBI became suspicious of Awlaki’s earlier contact with several of the hijackers. FBI agents interviewed Awlaki repeatedly and placed him under constant surveillance. In 2002, citing a “climate of fear [and] intimidation,” Awlaki left the United States for the United Kingdom. Two years later he returned to Yemen, where he had spent much of his childhood and where most of his family still lived.
But Awlaki’s past followed him to Yemen. Soon after he arrived there, the United States pressured the Yemeni government to detain him. He was imprisoned without trial. By the time he was freed 18 months later – the FBI having been unable to provide the Yemeni government with evidence to justify his continued imprisonment – his views toward the United States had hardened. In online videos, and in an English-language magazine called Inspire, he became an unforgiving critic of US policies and, in some instances, an apologist for attacks against Americans. In 2009, a Nigerian, Umar Farouk Abdulmutallab, tried to detonate plastic explosives on a Christmas Day flight from Amsterdam to Detroit; American intelligence officials came to suspect that he had been equipped by al-Qaida in the Arabian Peninsula, a Yemen-based group, and that he had been instructed by Awlaki. By early 2010, American intelligence officials were describing Awlaki as the “Bin Laden of the internet” and “the most dangerous man in the world” – and they had marked him for death.
Intelligence officials’ claims about Awlaki were exceptionally grave ones, but the astonishing revelation that the government intended to carry out the deliberate and premeditated targeted killing of one of its own citizens – something the United States had not done since at least the civil war – brought the debate about the government’s drone campaign into American courtrooms. I travelled to Sana’a, Yemen’s capital, in the spring of 2010 with Ben Wizner, one of my colleagues at the American Civil Liberties Union, to meet with Nasser al-Awlaki, Anwar’s father. At the offices of a Yemeni human rights organization, Dr Awlaki, an American-trained economist who had gone on to become a minister in Yemen’s government and then the president of Yemen’s largest university, asked us, disbelievingly, whether the US constitution could possibly permit what the government was proposing to do. When Ben and I returned to New York, we worked with Pardiss Kebriaei and Maria LaHood at the Center for Constitutional Rights to develop a challenge to the lawfulness of the government’s kill lists.
It was a bizarre death penalty case in which there was no indictment, the accused was in hiding overseas, and the prosecutors, who had already pronounced the sentence, were apoplectic at the suggestion that there should be anything resembling a trial. In the fall of 2010, John Bates, a federal district court judge, presided over a hearing in which justice department lawyers argued that the constitution permits the government to kill suspected terrorists without judicial process, and we argued in response that if the constitution meant anything at all, it surely meant that the government could not kill its own citizens without ever justifying its actions to a court. In his subsequent ruling, Bates wrote that the case was “unique and extraordinary,” and he conceded that it raised profound questions about “the proper role of the courts in our constitutional structure,” but he nonetheless dismissed the case on procedural and jurisdictional grounds. Nine months later, with the court having declined to intervene, a drone strike in Yemen’s northern al-Jawf governorate killed Awlaki and three others, including Samir Khan, the 25-year-old American who published and edited Inspire.
Less expected – and more shocking – was the US government’s killing, two weeks later, of Anwar’s American-born son, Abdulrahman. A gangly, bookish 16-year-old, Abdulrahman had set out from his grandparents’ home in Sana’a determined to find his father. Not knowing where to look, he traveled by bus to the southern governorate of Shabwah, where his extended family lived. He learned there of the drone strike that had killed his father hundreds of miles to the north. While President Obama was at Fort Myer in Virginia describing the killing of Anwar al-Awlaki as “a tribute to our intelligence community,” 16-year-old Abdulrahman was in the remote province of Shabwah struggling to come to terms with his father’s death. One evening he and his cousins stopped by the side of the road at the kind of informal, open-air restaurant that is common in Yemen. A group of men already gathered there were roasting lambs over an open fire. Abdulrahman and his companions set out a blanket on the ground. They would probably have heard the buzz of drones overhead; perhaps they would have seen a flash of light. Hours later, when other family members arrived at the site, they found only a crater, scattered body parts, and the remnants of American missiles.
We filed another suit, this time on behalf of the estates of Anwar and Abdulrahman al-Awlaki and Samir Khan. Judge Bates had rejected our earlier effort, but we hoped another judge might be more receptive to a case that sought after-the-fact judicial review of the government’s actions – especially because those actions had resulted in the death of a 16-year-old boy. Hina Shamsi, my colleague who argued the case, pressed the court to consider the implications of closing the courthouse door. But this second case was also dismissed, with the government contending again that the lawfulness of drone strikes was for the political branches to decide, and with Judge Rosemary M Collyer ultimately holding that legal remedies that would have been available in other contexts were not available in this one.
The litigation relating to the strikes that killed the three Americans in Yemen prompted a degree of public reflection about the drone campaign and forced the government to clarify and defend some of its positions. It also compelled courts to confront (if not answer) important legal questions relating to the government’s policies. But the debate generated by the litigation was a narrow one, focusing mainly on the scope of the US government’s authority to kill its own citizens, and even that debate was distorted by secrecy and selective disclosure. Government officials declared that Anwar al-Awlaki had been an “operational terrorist,” but they declined to disclose the evidence that supported this charge. They withheld memos in which the justice department concluded that the government could kill terrorism suspects without justifying its actions to a court. They intimated that the killing of 16-year-old Abdulrahman had been inadvertent, but they declined to supply an on-the-record account of the strike that resulted in his death, and they withheld the results of their post-strike investigations. They controlled most of the information and disclosed only what they chose to.
This book is possible because the secrecy surrounding American drone strikes has begun, at the margins, to erode. The documents collected here shed light on how a president committed to ending the abuses associated with the Bush administration’s “war on terror” came to dramatically expand one of the practices most identified with that war, and they supply a partial view of the legal and policy framework that underlies that practice. But while many of the documents collected here were meant to be defences of the drone campaign, ultimately they complicate, at the very least, the government’s oft-repeated argument that the campaign is lawful. To be sure, even the existence of these documents is an indication of the extent to which the drone campaign is saturated with the language of law. Perhaps no administration before this one has tried so assiduously to justify its resort to the weapons of war. But the rules that purportedly limit the government’s actions are imprecise and elastic; they are cherry picked from different legal regimes; the government regards some of them to be discretionary rather than binding; and even the rules the government concedes to be binding cannot, in the government’s view, be enforced in any court. If this is law, it is law without limits – law without constraint.
There is something ironic, and even sad, in the fact that the expansion and normalization of the drone campaign was overseen by President Obama, a onetime professor of constitutional law who was elected after promising to end the lawless national security policies of the administration that preceded his. Perhaps it is also true, though, that only President Obama could have overseen it. When President George W Bush left office, he was unpopular and distrusted. The evidence he had cited to justify the invasion of Iraq had been exposed as a fiction. His administration’s torture policies were widely viewed as an embarrassment and an outrage. The Supreme Court had repeatedly rejected his policies relating to military detention and prosecution. It is doubtful that the courts or the public would have allowed him to expand the drone campaign.
But many Americans who were appalled when Bush ordered extrajudicial detention were untroubled when Obama ordered extrajudicial killing. If they appreciated the breadth of the power Obama had claimed, they assumed he would use the power wisely. Equally significant, some of the scholars and human rights lawyers who might otherwise have been expected to harshly criticize Obama’s targeted-killing policies were part of Obama’s administration and deeply involved in developing the policies.
Several months before the 2012 presidential election, when it appeared that Americans might not give President Obama a second term, administration officials began to worry privately that the powers they had claimed for themselves might soon be in the hands of another president. They began to consider ways of narrowing the powers they had asserted. By this point, though, the administration had already persuaded a federal judge that the courts had no role to play in determining whether (or when) an American citizen could be targeted by his own government. The administration was already on its way toward persuading another judge that the government should not have to present evidence even after a targeted killing had been carried out. The powers claimed by the Obama administration had become entrenched – so entrenched that they could not readily be surrendered. This was even more true in early 2016, when Obama administration officials turned once again to the question of what legacy they would leave to their successors.
Now the lethal bureaucracy whose growth Obama personally oversaw will be turned over to a new administration. The powers Obama claimed will be wielded by another president. Perhaps as significant is the jarring fact that the practice of targeted killing – assassination, as it would once have been called, without a second thought – no longer seems remarkable, and the fact that the United States now boasts a legal and bureaucratic infrastructure to sustain this practice. Eight years ago the targeted-killing campaign required a legal and bureaucratic infrastructure, but now that infrastructure will demand a targeted-killing campaign. The question the next president will ask is not whether the powers Obama claimed should be exploited, but where, and against whom.
Copyright © 2016 by Jameel Jaffer. This excerpt originally appeared in The Drone Memos: Targeted Killing, Secrecy, and the Law, published by The New Press in the United States . Reprinted here with permission.