The Kill Chain, UnredactedA 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 veils of secrecy drawn open, the documents assembled in the book reveal remarkable details about what Jaffer describes as the government’s “bureaucratic infrastructure” for targeted killings (4). Taken together, they bring to light patterns and themes that do not necessarily stand out in any single document when considered in isolation (all of the documents are available for free on the ACLU website). For example, the administration’s rehashing of certain phrases and arguments with an almost robotic repetitiveness: both Attorney General Eric Holder and CIA Director John Brennan, for example, speak of “the false choice between our values and our security” (164, 193). What is most striking about this body of material, particularly when viewed within the framing provided by Jaffer’s effective introduction, is the extent to which the drone war turns the conduct, laws, and language of war on their heads. Of course, it is by now well established that the drone as a tool of war marks a radical departure from traditional notions of warfighting. But equally radical is the way in which this bureaucratic machinery enables a war that is conducted in secret, sometimes against U.S. citizens, on the basis of classified evidence, beyond declared war zones, and without the direct approval of the public or congress. Jaffer argues that it is a war that has “eras[ed] rule-of-law strictures that were taken for granted only a generation ago” (2).
Jaffer calls the administration’s successful effort to justify drone strikes “a remarkable feat of legal alchemy” (39), and reading all of the documents together, it certainly feels as though the central arguments on which the drone war was built could all be argued in the opposite direction with equal cogency: that at the bottom of it all, there is no fundamental truth in this debate, no hard line of truth. Just one generation ago, it was generally understood that assassinations were illegal (they had been banned under the Ford administration). Killing a senior terrorist leader outside of a war may seem to fit the common definition of an assassination, but the U.S. government doesn’t see it that way. In an address from 2012, one of the six speeches included in the book, Holder explains that targeted killings are not assassinations, because “assassinations are unlawful killings” (194). This sounds like a spurious defense, like saying, “When I killed that person, it wasn’t murder because murders are illegal.” It suggests that illegality is merely a matter of the government’s opinion. In this war, that may just be the case.
According to the administration’s reasoning, strikes are lawful because they are carried out in self-defense—unlike assassinations, which are unprovoked acts of aggression (97). For a strike to count as self-defence, the target of the strike must present “a continuing, imminent threat to U.S. persons” (another oft-repeated phrase) (255). Of course, a middling al-Qaida operative in Pakistan would not, by most definitions, qualify as an imminent threat to U.S. persons unless, perhaps, he is literally holding a gun to an American’s head. Killing him while he sips tea with a drone operated from an air base in Nevada, likewise, would not by most people’s definition qualify as an act of outright self-defense in the traditional sense of the word. And besides, as Jaffer asks (as others have before), “What kind of threat could be both ‘imminent’ and ‘continuing’?” (22).
As Jaffer’s introduction and the documents that follow it demonstrate, in this war words don’t necessarily mean what you think they mean. In one speech, Brennan—who elsewhere refers to the targets of strikes as “the cancerous tumor known as an al-Qa’ida terrorist” (208)—admits that “a more flexible understanding of ‘imminence’ may be appropriate when dealing with terrorist groups (165). In other words: the only terrorist attacks that are successful are the ones that the U.S. and its allies did not know about prior to the fact. All successful terrorist attacks, then, come as a surprise, and so, by definition, it is impossible to prepare for a successful terrorist attack. As such, a terrorist group like Al-Qaeda, which could—in theory at least—attack anywhere and at any time without warning, presents an imminent threat to the U.S. and its interests by mere virtue of its existence. (To be sure, terrorist groups have proven themselves able to attack the U.S. and U.S. allies with nearly the same range as the U.S. and its drone operations.) In short, as the authors of a DoJ White Paper from 2011 explain, just because the U.S. government “may not be aware of all al-Qa’ida plots as they are developing,” it “cannot be confident that none is about to occur” (178). If the U.S. were to adhere to the common definition of imminence, the authors of the White Paper explain, , it would not have enough time to prevent a future attack. As such, they write, labelling a target as an “‘imminent’ threat of violent attack against the United States does not require the United States to have clear evidence that a specific attack on U.S. persons and interests will take place in the immediate future” [emphasis added] (176). “Imminent,” then, appears to actually refer to the opposite of imminence: “sometime.” And though the government later clarifies in the 2013 Playbook that “it is simply not the case that all terrorists pose a continuing, imminent threat to U.S. persons” (255), the determination as to whether a terrorist poses an imminent threat is, of course, based on classified information that the government is under no obligation to disclose, making such decisions impossible to audit.
Many commentators, including Jaffer, have focused on arguments about “imminence,” because while they are both crucial and dubious, the legal justification for drone strikes on U.S. citizens, in particular, also hinges on the equally dubitable notion of “public authority.” Here, too, the drone war reveals itself as a thoroughly postmodern enterprise. “Public authority” refers to the legal concept that certain actions—in this case, killing U.S. persons without first giving them a trial—are exempt from the usual legal scrutiny if they are carried out by public officials in their best judgement and in the service of advancing a national interest. In a 2010 memo outlining the legal basis for a strike against Anwar al-Aulaki, the DoJ’s Office of Legal Counsel explains that just as it would be absurd to give a speeding fine to a policeman rushing to the scene of a crime—or, to use an analogue that is preferred within the government, to charge with murder a policeman who shoots an aggressive armed suspect—the law banning the murder of U.S. persons abroad does not apply to national security officials who carry out drone strikes against known terrorists who are U.S. citizens (80).
This reading of public authority rests on a somewhat chaotic logic. In this memo and others, the government argues that public authority exempts national security officials from a law known as Section 1119 that bans the killing of U.S. citizens abroad. Alongside the ban on assassinations, this law comes the closest to rendering such strikes illegal. But the authors of the law never made any mention targeted killing, nor did they include any language to suggest their intention was to prevent public officials from exercising their duties by killing terrorists (82). This is because Section 1119 stems from a 1991 bill that was intended to close a loophole that prevented federal authorities from prosecuting a U.S. national accused of murdering a colleague in South Korea (82), a bill that had nothing to do with war, intelligence, or counter-terrorism, and which was passed at a time when striking targets on foreign soil using unmanned aircraft would have seemed like a distant fiction (106, 109 and 139). In effect, the administration’s argument is based on what is omitted from the law rather than on what is included. This is not an uncommon legal tactic. But elsewhere, the administration used what is included in unrelated legal precedent: in particular, a case known as the VISA Fraud Investigation, which found that public officials could legally issue unlawful visas as part of a legitimate undercover operation (108).
This is not the only example of the administration drawing on scant historical precedent to justify a war that has no strong analogues in history. As the authors of the 2010 memo point out, “There is little judicial or other authoritative precedent” for a remote war against a non-state group in a country that is not party to that war. Their sole historical example of a legal targeted killing is the targeting of Isoroku Yamamoto, the Japanese general behind the Pearl Harbor attack in 1943, nearly three decades prior to the ban on assassinations. The administration admits that they must therefore base their justification for that war on legal decisions that were never made with such a war in mind (94). In his introduction, which touches on these points about imminence, self-defence, public authority, and the Yamamoto killing, Jaffer calls the unrelated laws that govern the targeted killing program “imprecise and elastic.” “They are cherry picked,” he continues, “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” (7).
Even the definition of “civilian,” a legal term with heavy implications in the laws of armed conflict, appears to be up for debate. While the government maintained, effusively, that it did not deem all military-aged males in the vicinity of a strike to be legally targetable combatants (294), Jaffer and others assert that the CIA’s criteria for distinguishing fighters from civilians appeared to have been used losely at certain points in the campaign. Even the U.S. ambassador to Pakistan from 2010 to 2012, Cameron Munter, conceded that when it comes to distinguishing civilians from fighters, “One man’s combatant is another man’s—well, a chump who went to a meeting” (12). Here, again, the determination as to whether a person is a legitimate target or merely a chump is based on intelligence that is invariably classified. A judge tells Jaffer that public officials must be trusted (47). But that is not in Jaffer’s nature. “If this is law,” he writes, “it is law without limits—without constraints” (7).
In such a war where precedent is thin and laws and words are malleable, searching for a fundamental answer to the question “Are drone strikes legal?” may therefore be a fool’s errand. As several of the judges who presided over Jaffer’s unsuccessful legal challenges acknowledge, the fact that a policy is found to be legal does not, by default, have anything to do with whether or not it is good policy. In the suit filed by the ACLU on behalf of al-Aulaki’s father, the judge dismissed the case, noting that the question of whether it is lawful for the U.S. to kill a U.S. citizen considered to be an enemy of the state was a “political question” that ought to be put to congress and the White House rather than to the courts (46). The debate seems to come down to whether or not one can stomach President Obama’s dictum, quoted by his legal adviser Harold Koh in one of the book’s six speeches, that “the instruments of war do have a role to play in preserving the peace” (121). For their part, the “political” figures that do have a say in drone strike policy are very much convinced that strikes are the best option (or, as one military official involved in the UK’s targeting program put it to me recently, the “least bad option”). These people don’t lie awake in bed every night tormented by their actions. Nor would most Americans—who largely support drone strikes ("Public Continues to Back U.S. Drone Attacks")—or Congress, which hasn’t passed a single piece of legislation that directly restricts drone strikes. But in their place, it is fairly clear that Jaffer wouldn’t sleep a wink.
If the first rule of the drone war is that nothing is necessarily as it seems, the second rule is that things which are as they seem may not necessarily be so for very long. If Jaffer believed that Hillary Clinton was going to win the election, he likely assumed that the documents he has assembled would remain in standing until at least 2020 or even 2024. But under the Trump administration, the drone war is evolving. On January 21, 2017, the day after President Trump’s inauguration, the President visited the headquarters of the Central Intelligence Agency in Langley, Virginia. Trump, who had asserted multiple times during the election campaign that he wished to “bomb the shit out of ISIS,” was reportedly impressed when he stopped at the department where the Agency manages its drone strikes. Trump made it clear that he did not approve of how the agency seemed to be very much limited by rules imposed by the Obama White House in “The Playbook.” According to officials who spoke to NBC News, he instructed incoming CIA director Mike Pompeo “to take a more aggressive posture” (Dilanian and Kube).
Shortly thereafter, a number of the limitations placed on strikes under the Obama administration—which, at least in Pakistan, had an almost instantaneous effect on the number of strikes and civilian casualties (Ackerman)—appear to have been stripped. Breaking from the guidelines set forth by the previous administration, the White House granted the CIA greater autonomy to conduct strikes with “less micromanaging” in places like Yemen, according to NBC. A few months later, the White House implemented new, more lenient rules to supersede the Playbook (Hartig)—which the ACLU has obviously sued for. Since then, independent groups have noted a startling uptick in drone strikes in Yemen and Somalia, in particular (“Drone Wars: The Full Data”).
Even so, The Drone Memos remains a highly relevant read. In addition to establishing, as a historical text, the legal contours of a war that broke with all precedents, it also represents the legal, ethical, and political baseline upon which Trump will have built his own counter-terrorism policy. As such, the book will serve not only as a record of the Obama administration’s lasting legacy in this space, but also as a useful mark of contrast against which to evaluate the current administration’s policies, assuming they are ever fully disclosed.
More broadly, the book is significant because it represents a very workable model for how to represent, interrogate, and challenge the kind of war that may soon be the norm: confounding and “saturated,” as Jaffer puts it, “with the language of law” (7). It is becoming all too clear that under the new administration, The Drone Memos will need a sequel that replicates the formula. It would be a good thing if Jaffer were involved.
Arthur Holland Michel is the co-director of the Center for the Study of the Drone, a research institute at Bard College in New York. He is the author of Eyes in the Sky: The Secret Rise of Gorgon Stare and How it will Watch Us All (Houghton Mifflin Harcourt). His work has appeared in Wired, Slate, Vice, The Verge, Fast Company, Motherboard, Al Jazeera America, U.S. News, Bookforum, Mashable Spotlight, and an Oxford Research Encyclopedia, among other outlets.