Some thoughts about drone strikes and detention

It is high time I sorted out my thinking (and feeling) about U.S. drone killings and other targeted killings of those deemed to be terrorists. It's a duty to myself if no one else. The charge that liberals who were up in arms about Bush's torture and detention policies are unjustifiably silent about Obama's secret and unaccountable killings has some merit in my case, though I have on occasion expressed unease or disapproval of various aspects of Obama's conduct of the ongoing covert war. This will be an essay in the original sense, in that I am figuring out what I think (and recalling what I have thought at various stages) as I go along. The questions: what policies are effective (or likely to cause blowback), what policies are legal (or pose a lasting danger to our civil liberties), what policies are ethical (or likely to save more lives than they take).


First, a couple of bookends. I have long accepted that the U.S. should use drone strikes or other targeted killings against senior al Qaeda officials, and I have also been convinced for some time that the scale and sweep of the current drone program is creating more enemies than it's eliminating (and probably, though one given enemy may be more dangerous than a hundred others, creating more danger to the U.S. than it's eliminating).

More specifically, when Obama said in the 2008 campaign that the U.S. should strike at senior al Qaeda leadership without hesitation when it had the chance, including within Pakistan's borders, I accepted that. I had read the 9/11 Commission Report's painstaking accounts of the frustrating and ultimately debilitating constraints on the Clinton administration's attempts to target bin Laden, and also much about the safe havens in Pakistan and the Pakistanis' purported unwillingness to go after them, in some regions if not others. That assent is pretty universal in the U.S. (which is not to say that it's necessarily right). There are very few who would not "approve" of the raid against bin Laden -- though I do think you could make a fair case that the damage it did to our relations with Pakistan, and our operations in Afghanistan, outweighed the actual boost to our security that killing bin Laden yielded.

More broadly though, I accept that the decimation of al Qaeda's last-gen senior leadership in Pakistan and Afghanistan was prudent and effective and right.  Though even as I write, the ground slips a bit as I feel my ignorance regarding particulars: how far down the food chain is it just to strike in this way, putting civilian lives at risk?  What about strikes against not al Qaeda but various factions of the Taliban -- with whom we were/are at war, but to increasingly questionable purpose? Let's say provisionally if a bit arbitrarily that going after the al Qaeda top 20 seems justifiable to me.

On the other side of the ledger, I have long accepted the arguments of analysts I regard as reliable, most notably Gregory D. Johnsen, that our escalated and more broadly dispersed drone strike campaign is counterproductive, most notably in Yemen.  Here's Johnsen's core argument (leaving out his case specifically  against John Brennan as prospective CIA director):

For all of the Obama administration’s foreign policy successes — from ending the war in Iraq to killing Osama bin Laden — the most enduring policy legacy of the past four years may well turn out to be an approach to counterterrorism that American officials call the “Yemen model,” a mixture of drone strikes and Special Forces raids targeting Al Qaeda leaders...

Testimonies from Qaeda fighters and interviews I and local journalists have conducted across Yemen attest to the centrality of civilian casualties in explaining Al Qaeda’s rapid growth there. The United States is killing women, children and members of key tribes. “Each time they kill a tribesman, they create more fighters for Al Qaeda,” one Yemeni explained to me over tea in Sana, the capital, last month. Another told CNN, after a failed strike, “I would not be surprised if a hundred tribesmen joined Al Qaeda as a result of the latest drone mistake.”...

Without accurate on-the-ground intelligence, our policies will fail. George W. Bush launched two major ground invasions, and Mr. Obama has tried several smaller wars. Neither strategy has worked. In Yemen, which has been the laboratory for Mr. Obama’s shadow wars, A.Q.A.P. has more than tripled in size after three years of drone strikes. When the United States started bombing Yemen in 2009, A.Q.A.P. had just 200 to 300 fighters. Today, the State Department estimates it has a few thousand. Since 2009, the group has attempted to attack America on three occasions, coming closest on Dec. 25, 2009, when a would-be suicide bomber narrowly failed to bring down an airliner over Detroit. When it tries again — and it will — the organization will be able to draw upon much deeper ranks...

More and better human intelligence from sources on the ground would result in more accurate targeting and many fewer civilian casualties. That would be a Yemen model that actually worked and a lasting and more effective counterterrorism legacy for Mr. Obama’s second term.

Note that Johnsen does not suggest that the U.S. should not be doing drone strikes in Yemen -- only that they should be fewer, and better targeted. Accepting that judgment brings me up against one of the paradoxes of trying to be a responsible citizen in a democracy. From one point of view it seems foolish for me to second guess Obama's judgment and that of his chosen surrogates regarding how much drone warfare is too much. He has a thousand times more information than I do and is much smarter to boot. On the other hand, it seems equally foolish and irresponsible for any citizen to place blind trust in a leader's judgment, even -- or especially -- if he's one I admire and whose policies in other areas I broadly support.

My solution is to place at least provisional faith in proxies -- experts whose judgment I've come over time to trust. This is necessary not only because no one's judgment is infallible, but because all leaders are constrained to some degree by perverse incentives -- for example, forced to give outsized weight to the possibility of any terrorist attack being effective; or, with regard to the risk posed by Iran's nuclear program, to place Israel's perceived security needs above U.S. national interests. Speaking of which, one covert program that I unequivocally believe to have been a bad idea is the Stuxnet cyberattack on Iran's nuclear facilities -- not to say the assassination of Iranian scientists in which I fear the U.S. participated. Those are acts of war that I think will come back to bite us. We should not have loosed cyberwarfare into the world.

To sum up, I would say that the U.S. is right to pursue drone strikes against terrorists who seek to kill Americans, at least with the tacit (or explicit) support of the government of the country where the target is located. The strikes are subject to the rules of just war -- that is, every effort must be made to avoid civilian casualties, and the gains of any given strike weighed against the risk of civilian deaths. In that weighting, I believe the U.S. is at present erring on the side of too many strikes against too-uncertain and perhaps widely diffused targets.  Perhaps signature strikes -- those against people of unknown identity whose behavior exhibits certain "tells" that they are engaged in terrorist activity -- cross the line from a practical as well as an ethical standpoint, carrying an unacceptable risk of striking innocents, and consequently creating new enemies in the ways Johnsen describes.

On the legal front, a core question is whether those deemed to be operational members of al Qa'ida or other groups committed to killing U.S. civilians are to be regarded as enemy soldiers or criminals. Enemy soldiers can be killed when capture is deemed infeasible, and also detained until hostilities are over. Suspected criminals can only be killed if they are in the midst of attacks that can't be stopped any other way, and if captured they must be accorded due process in imprisonment and trial. 

The problem is that members of al Qa'ida and other terrorist groups have characteristics of both: they regard themselves as perpetually in a state of total war against all Americans, and act accordingly - -and by that very lack of restraint fit our definitions of criminals. It's in our military interest to treat them as soldiers -- or at least, in accord with the wishes and convenience with those forces (military, intelligence, government) charged with protecting our national security.  But because they wear no uniforms and operate on no identifiable battlefield, treating them as soldiers endangers our civil liberties, because there is no clear standard for determining who should be deemed a combatant and thus deprived of due process (one question that's been settled is that those deemed combatants should at a minimum be accorded the treatment mandated by the Geneva conventions and other international standards for warfare).

The dilemmas of detention are almost entirely a product of Bush administration abuses. Obama's Guantanamo Review Task Force identified 48 detainees who could not be prosecuted, because the evidence against them was either a product of torture or in shambles or both, but could not be released because that inadmissible evidence identified them as security risks.  The military tribunals for those deemed try-able are a travesty perpetuated by GOP hysteria and Democratic cowardice. Eric Holder, who I regard as a disaster on many fronts, completely botched the effort to establish the principle of civilian trials for al Qa'ida principals. 166 detainees remain, 55 of whom the administration has cleared for transfer to other countries.   The administration has been pusillanimous in response to Congressional restrictions imposed in the last two NDAAs on its freedom to transfer detainees from Guantanamo.

Obama has expressed an intention to create a legal framework for indefinite detention of those who can't be prosecuted but are deemed to dangerous to release:

For detainees who cannot be prosecuted--but pose a danger to the American people--we must have clear, defensible, and lawful standards. We must have fair procedures and a through process of periodic review, so that any prolonged detention is carefully evaluated and justified. And keeping with our Constitutional system, it will be subject to checks and balances. The goal is an approach that can be sustained by future Administrations, with support from both political parties and all three branches of government ( National Security Strategy p. 36). 

Getting such "fair procedures" passed , assuming they could be devised, is doubtless impossible with our current GOP in the mix. As for closing Guantanamo, my own sense is that by this point the prisoners there would be far worse off in U.S. maximum security prisons; the issue is not where they are detained, but how we can dispose of their cases with justice.  Given the distortions imposed by the Bush torture regime, the unwillingness of other countries to take some detainees cleared for transfer, and the distortions in our political system created by the perpetual national security hysteria of the GOP, the problem of disposal is in some measure insoluble. What I fault the administration for on this front is trying to make the travesty of military tribunals viable rather than battling to work through the try-able cases in civilian court.

The hardest moral question posed by the continuing struggle against al Qa'ida and other terrorist groups targeting the U.S. is developing fair and accountable procedures for determining who may be targeted for killing. I am not sure that the question of whether a prospective target is a U.S. citizen is central.  The U.S. should not be targeting anyone who is not legitimately deemed (in effect) an enemy of war or a criminal carrying out a lethal attack who cannot be stopped by means other than killing; due process is not for U.S. citizens alone. 

I do think that under the current system for determining kill lists -- or lack of accountable system -- there's a real risk that a future president could target people whose rhetoric or non-lethal political action the president doesn't like.  It's true that the recently linked  Justice Dept. white paper defines parameters only for targeting someone deemed an "operational leader of al Qa'ida" who is "actively engaged in planning operations to kill Americans." But if such determinations are made in private by the executive branch, without presentation of evidence to any outside authority indicating that a prospective target fits the definition, it's easy to see how the definition might become infinitely elastic -- or simply replaced by a broader definition more to a future administration's liking.

I don't really know what to do about this. This "essay" will be a prompt to me to read more.  Regarding the possibility of a FISA-like court to sign off on targetings, the New York Times' Scott Shane recently reported some powerful if not definitive objections:

Indeed, Hina Shamsi, director of the American Civil Liberties Union’s national security project, said that a drone court would be a step backward, and that extradition and criminal prosecution of suspected terrorists was a better answer. “I strongly agree that judicial review is crucial,” she said. “But judicial review in a new secret court is both unnecessary and un-American.” 

Nor are judges clamoring to take up the challenge. At an American Bar Association meeting in November, a retired FISA judge, James Robertson, rejected the idea that judges should approve “death warrants.” 

“My answer is, that’s not the business of judges,” Mr. Robertson said, “to decide without an adversary party to sign a death warrant for somebody.”

I can see the logic, in fact, in the argument that targeting operative leaders of al Qa'ida is a military operation, and that the responsibility therefore rests with the president as commander in chief (the attacks have  not been mainly carried out by the military, but perhaps they should be;the military is accountable in ways that the CIA is not).  The problem is, again, that al Qa'ida and its ilk are hybrids -- not a military enemy but not easily quelled purely by criminal justice procedures. Also, the president in war does not generally make individual determinations whom to kill.  In fact I could almost envision the decision moving down the food chain, to military officers operating under the discipline of military codes of conduct.  That would mean transferring operations from the intelligence agencies to the military. And honestly, it's probably not the solution. So again, I am going to have to punt on the hardest question, and read more, and come back.