Drone hearings and the question of targeted killings

This is the first of what will hopefully be a series about the U.S. targeted killing program.

Crash Course: The Drone Program

The Senate held hearings on the controversial drone program on Tuesday.

Drones, also often referred to as UAVs, for Unmanned Aerial Vehicle, are essentially small, remote-controlled planes that can be equipped for surveillance or with missiles for what the American government refers to as “targeted killings” and critics, tend to call assassinations.

There are two types of drones being used by the U.S. military and intelligence agencies: Predators and Reapers. The Predator is the earlier version, and has a smaller payload. It can carry two Hellfire missiles, which feature 20 lb warheads that can pierce tank armor. Reapers can carry a mix of Hellfire missiles and larger bombs to deliver payloads of about 1.5 tons.

Using these drones, a pilot operating a joystick at a base in Nevada can launch a missile to kill a terrorist in Pakistan, Afghanistan, Yemen, Somalia, or any of a number of other countries.

We started using drones in Afghanistan shortly after 9/11, and the program has only gotten bigger ever since, particularly under the Obama administration.

The Legal Question

It’s common to hear that critics of the drone program claim it is illegal, but there isn’t always much of an explanation as to why. The answer lies in Executive Order 11905. Passed in 1976, this law aimed to regulate United States Foreign Intelligence Activities. Gerald Ford issued it following something called the Church Commission, a Congressional study that found that the CIA had been engaging in assassinations abroad, sometimes without the knowledge of Congress. It states “No employee of the United States government shall engage in, or conspire to engage in, political assassination.”

Two years later, Jimmy Carter strengthened this ban with Executive Order 12036, which further specified that no person “acting on behalf of the United States shall engage in, or conspire to engage in, assassination.”

So the question is not just about the use of drones, but rather the idea of a broader program of targeted killings itself. Defenders of the program argue that assassinations and targeted killings are different, claiming that targeted killings are a method of self-defense utilized against terrorists who pose an imminent threat to the U.S. and cannot be captured.

Critics call that into question. For one thing, as Dana Priest and Will Arkin point out in their book, Top Secret America (which I highly recommend), a person who has been placed on the kill list must have their information reviewed every six months. While at first that seems like a check on the power to arbitrarily place individuals on a kill list, in fact it means that people can be listed on it for years at a time, which calls into question the idea of them presenting an “imminent” threat.

Then there is the fact that there are actually 3 separate kill lists, not one master list. The CIA has one, the Defense Department has one, and finally, within the DoD, the Joint Special Operations Command (JSOC) has one. And it is entirely unclear how much overlap there is between these lists. But it seems pretty questionable to me that there is a justifiable national security reason to have multiple simultaneously operating lists.

Of these three groups operating drones, it is often assumed that the CIA has the most secretive practices governing their drone program. That’s why, during John Brennan’s confirmation hearings to head up the CIA earlier this year, there was some talk about improving transparency by moving drones currently operating under the CIA to Defense.

However, it is JSOC that actually has the greatest secrecy surrounding its targeted killing program. The CIA is required to notify Congress and the director of national intelligence about their activities. JSOC is not.

Indeed, JSOC has worked itself into a position where it operates like an espionage agency, but is not legally considered one, and is part of the Department of Defense, but operates relatively autonomously, and does not seem to be constrained by typical military rules either, since it can operate in countries in which the U.S. is not at war. So what rules does JSOC abide by? It is unclear.

But one thing is very clear: JSOC has greatly expanded the president’s ability to wage violence abroad, if not exactly warfare, without any check on that power. And that should worry people a lot more than it seems to.

Losing Hearts and Minds

The Global War on Terror is the reason we have seen such an unprecedented expansion of executive power and targeted killings. While the Obama administration has deliberately moved away from using that terminology, they have embraced the logic of the “Global War,” the idea that the battlefield is everywhere, and therefore we must be able to strike everywhere.

But if extremist terrorism of the sort propagated by Al Qaeda and its affiliates is a global insurgency, then we are forgetting one of the key components of any counterinsurgency: winning hearts and minds. While that phrase has been thrown around in discussions of our strategy in Afghanistan and Iraq, its actual practice has been limited.

At the Senate hearings this week, for the first time lawmakers heard from a Yemeni about how the drones overhead impact life on the ground for people in his country. He stated that when people from his village talk of America, “now they talk of the terror they feel…”

Another expert witness claimed that, while the White House says drones primarily target high-level targets in Al Qaeda, only about 2% of the people killed in strikes were major leaders of the organization.

There have been vast discrepancies in the numbers of militants and civilians killed by drones reported by the administration and other organizations. These are prompted by the administration’s alleged tendency to count any young male as a militant, regardless of any other information identifying him as such.

And of course, another problem is that the Obama administration declined to provide any witnesses to defend the program, despite the fact that it has pledged to be the most transparent administration in history. Keep up the good work, fellas.

No one disputes the fact that whenever possible, we want to avoid risking the lives of American soldiers. But we seem to be losing sight of the possibility that every instance of instability in the world does not require a U.S. military response.

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One Comment Add yours

  1. Christina says:

    And also the legal issue of due process…

    For some SCOTUS cases on the executive order/power, Youngstown Sheet & Tube Co. v. Sawyer (president cannot act unless expressly/implicitly authorized by Congress or Constitution) or Immigration & Naturalization Service v. Chadha (one-house legislative veto violates const. separation of powers).

    They’re good background reading and have been discussed recently in some oral arguments in front of the Court (I believe it was in DOMA that they spoke of the Chadha precedent).

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