Lawful but awful

I don’t usually get worked up over the drone wars and killing terrorists.  I’d rather see many of them dead before a single innocent victim is killed or maimed.  But the Justice Department “white paper” on “Lawfulness of a Lethal Operation Directed Against a U.S. Citizen Who Is a Senior Operational Leader of Al Qa’ida or an Associated Force” has chilled my blood.

I hasten to note that I am not a lawyer.  If you want the opinion of one, try Lawfare.  But I spent decades as a bureaucrat.  I could drive a massacre through the policy loopholes outlined in this memo.

The obvious first:  the memo focuses on “imminent” threats, but then it includes in “imminent” an operation that hasn’t even yet been planned.  That’s a neat trick.  By that standard, Ron Paul’s election as president was imminent before he announced he was running.  That’s not what the word means.  If you call a horse’s tail a leg, how many legs does a horse have?

Capture has to be “infeasible” for the killing to be lawful.  But infeasible is in the eye of the beholder.  I suspect it is infeasible more often than not because we no longer have anyplace to put such captives.  Or is it only infeasible because a military operation with capture as its purpose cannot be mounted without unreasonable risks?  And what would unreasonable risks be?

But the problems don’t end there.  The decision-maker in the memo is not the president of the United States.  It is a well-informed senior official.  Presumably he or she gets a delegation of authority from the president.  Do we really think killing a U.S. citizen in Yemen by a drone operator in Utah does not require the decision of an elected leader?  It should be done by a GS-15?  Admittedly we delegate the authority to decide whom to kill on a battlefield to 18-year-old soldiers.  But that is the difference between targeted killing at a great distance and conventional warfare requiring split-second decisions to protect our forces.

What is a “senior operational leader?”  Here the white paper is more explicit:  it is someone known to be “actively engaged in planning operations to kill Americans.”  I’ve got no problem with targeting someone who is targeting Americans.  But how do we know that a particular person is a senior operational leader?  The obvious problem is someone like Anwar al Aulaqi, who certainly encouraged killing Americans but publicly available evidence that he was an operational commander at the time of his killing in 2011 was thin.  Did the Administration have more?  Or is the definition of “senior operational commander as loose as the definition of imminence?  Did some well-informed senior official get worked up over Aulaqi’s explicit incitement of violence against Americans?

Then there’s that “associated force” loophole.  Is the Taliban a force associated with Al Qaeda?  Their goals are certainly distinct, but they have been associated.  Is the Movement for the National Liberation of Azawad (the Tuareg rebel organization in northern Mali) associated with Al Qaeda in the Maghreb (AQIM)?  It certainly was for a while last spring, but right now it seems to be helping the French do in AQIM.  Is the Pakistani Inter Service Intelligence directorate “associated” with the Haqqani network?  Some days yes, who knows right now?

Let’s not forget the problem of collateral damage:  innocent people (including children) who happen to be nearby when a Predator strikes, or targeting errors.  That too is a problem on the conventional battlefield, but I might hope that it could be considered more fully when our own soldiers are not at risk.  We need to ask the obvious question:  are drone strikes creating more enemies than they are killing?  Are we raising the risks to ourselves rather than lowering them?

What difference does it make that the person killed is a U.S. citizen?  A lot of the problems I see would be just as troubling if the person were not.  Nor do I see much in this paper that makes me think it could not also be applied inside the United States.  Now that gets a bit paranoid, but would we feel comfortable with drone strikes against terrorists–U.S. citizen or no–holed up in a bunker in Alabama?*

This white paper raises more questions than it answers.  It is hard to imagine that no mistakes are made.  Judicial review is the method we use to avoid mistakes in the criminal justice system.  A soldier’s behavior on the battlefield is subject to military judicial review.  But there is no judicial review of drone strikes, before or–if the Administration continues to have its way–after the fact.  Nor is it clear that the bureaucratic process envisaged is adequate to minimize error.

I’m convinced:  killing terrorists is not unlawful.  But for more than legal reasons we need to be careful about who, how, when, where and why we do it.  The white paper suggests the system in place is still far from adequate, even after several hundred drone strikes that have killed thousands.  That really is awful.

*PS, March 6, 2013:  For those who think I was hallucinating about drone strikes inside the US, read what Attorney General Eric Holder has now said on the subject.