When it comes to the Obama administration’s drone strikes, not even a federal judge can make heads or tails of the law, and that’s not good for anybody.
In a Jan. 2 opinion, Judge Colleen McMahon wrote that the targeted killing program seems “incompatible” with U.S. law, but she said she did not have the authority to compel the administration to release its legal justifications.
“The Alice-in-Wonderland nature of this pronouncement is not lost on me,” McMahon wrote. “I can find no way around the thicket of laws and precedents that effectively allow the executive branch of our government to proclaim 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.”
It’s the latest confounding development in an issue crucial to the C4ISR community. Today’s counterinsurgency operations have driven a profound shift in targeting, away from self-evident military targets, such as headquarters, barracks and anti-aircraft emplacements, to listing, finding and tracking individuals, in some cases even U.S. citizens.
The Obama administration has adopted a legally nuanced practice in the war on terror, generally shunning the capture of suspected terrorists overseas and instead turning to its signature national security tactic: targeted killing with missiles launched from Predator and Reaper UAVs. The Long War Journal tallies 532 people killed by drone strikes in Yemen and Pakistan in 2012 alone, a staggering death toll for a secret program.
Credible critics of drone strikes, such as former Director of National Intelligence Dennis Blair, have argued for years that, in a strategic sense, the tactic is backfiring.
“As the drone campaign wears on, hatred of America is increasing in Pakistan,” he wrote in 2011. “The Hellfires may kill some terrorists, but they certainly sow widespread animosity to the U.S. among the general population.”
But it’s difficult to have a productive debate about a program kept so tightly under wraps. The White House has refused to release the legal opinion upon which it bases its decisions to kill suspected terrorists, among them Anwar al-Awlaki, the American citizen at the center of the case before McMahon. While everything about the program has been treated with obsessive secrecy, lawyers find the legal murkiness the most troubling aspect of the strategy. The closest the White House has come to describing the process for picking drone targets was a speech last March by Attorney General Eric Holder at Northwestern University.
“The president may use force abroad against a senior operational leader of a foreign terrorist organization with which the United States is at war — even if that individual happens to be a U.S. citizen,” Holder said. Killing an American without due process could be lawful, he argued, if the “U.S. government has determined, after a thorough and careful review,” that the American posed an imminent threat, and that capture wasn’t possible.
In her opinion, McMahon called Holder’s remarks “a road map of the decision-making process that the government goes through before deciding to ‘exterminate’ someone ‘with extreme prejudice.’”
The issue isn’t America’s right to use force against enemies in a country where we are an established combatant force. Rather, it is the targeted killing program in other countries, such as Pakistan and Yemen, that is inflaming international public opinion and drawing scrutiny from the international legal community.
The U.N. special rapporteur on extrajudicial, summary or arbitrary executions, Christof Heyns, and New York University law professor Sarah Knuckey make this argument in this issue of C4ISR Journal. They call on the administration to answer key questions about its targeting killing program.
“Should there be an international legal order,” they ask, “that permits governments around the world to operate ‘secret’ and unaccountable programs to eliminate their enemies wherever they are with few binding limits and no meaningful international scrutiny?”
The solution is simple: more disclosure and clearer explanations by the administration. But that’s a solution the White House continues to resist. It is possible that there are valid reasons for keeping legal opinions secret, but the U.S. is the first nation to carry out a program like this on such a scale. The White House has the moral obligation to explain — to American citizens, to the global community and to U.S. allies — the legal underpinnings of its actions.
This article appeared in the January/February edition of C4ISR Journal.