The Kill Chain, Unredacted: A review of Jameel Jaffer, The Drone Memos: Targeted Killing, Secrecy, and the Law

For those seeking to understand targeted killing policy under the Obama administration, The Drone Memos (2017), a collection of ten key legal documents, memoranda, and measured speeches by senior Obama administration officials, is a crucial resource. Much ink has been spilled over the drone campaign, including a number of very fine books, but The Drone Memos creates new meaning by collecting, for the first time in a single volume, this core body of primary source material, much of which was at one point highly classified, on the official thinking undergirding what was unquestionably Obama’s most controversial policy.

The volume is edited by Jameel Jaffer, a renowned human rights lawyer now serving as the director of the Knight First Amendment Institute at Columbia University. In some senses, Jaffer, who leads the documents with a hard-hitting but level-headed 60-page introduction, is closer to the drone campaign and has had a greater influence upon it than anybody who has not served in government. A vocal critic of drone strikes, he spent the full span of the Obama presidency at the ACLU, where he worked on a range of high-profile lawsuits that sought the disclosure of classified documents and information on strikes and, in some cases, directly challenged the legal basis for the targeted killing program. Operating in what the judge who presided over one of the suits describes as “the thicket of laws and precedents that effectively allow the [government] to proclaim as perfectly lawful certain actions that seem on their face incompatible with our Constitution and laws, while keeping the reasons for its conclusion secret,” Jaffer’s aim was to erode the government’s “overbroad secrecy” and bring to light evidence of illegal actions in the conduct of the War on Terror (29).

This thicket of laws and precedents was a harrowing space. Jaffer and his colleagues faced an obstinate opponent. For the first three years of Obama’s presidency, no public official would formally acknowledge the government’s drone strikes outside of hot war zones, even though, thanks to a stream of presumably orchestrated leaks to journalists, everyone already knew that they were real and regular occurrences. Jaffer calls the Administration’s position a “fiction of secrecy” of “absurd proportions” (27) wherein success was, and remains, far rarer than failure. In one suit, filed in 2010, Jaffer represented Nasser al-Aulaqi, the father of U.S.-born radical cleric Anwar al-Aulaqi who, in an unprecedented move, had been selected for lethal targeting by the U.S. administration. The suit was ultimately unsuccessful, and nine months after a federal district court judge ruled against Nasser, Anwar was killed in a drone strike in Yemen (Jaffer 4, 5), the first intentional killing of a U.S. citizen outside of a war zone in modern times.

Nevertheless, Jaffer had some victories. Indeed, several of the documents in the book were released as a result of suits brought forward by Jaffer’s community. These efforts pushed the government from a position of outright denial to one of relative openness. More importantly, they shifted policy. In the first four years of the Obama presidency, the drone war was particularly bloody and unrestrained. But in a speech in 2013, the president acknowledged the questions that Jaffer and others had been asking, without success, since 2009, “about who is targeted, and why; about civilian casualties, and the risk of creating new enemies; about the legality of such strikes under U.S. and international law; about accountability and morality” (265). This wasn’t just an exercise in lip service. The previous day, the president had issued the Presidential Policy Guidance, a lengthy classified document that deals with those questions by imposing an array of limits and strict procedures on drone strikes outside of war zones. Thanks to a lawsuit brought forward by the ACLU, the full “Playbook,” as it is known informally, was released in 2016 and is included in this volume (225).

With their...