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A Touch More on Drone Strikes…

[ 53 ] October 2, 2011 |

So I’m having trouble reconciling this Ben Wittes:

Finally, Spencer might be suggesting that the government should at least be accountable to the public for such a targeting–that is, that these operations will not have legitimacy to the extent that the President keeps secret the program, its legal rationale and standards, and the evidence underlying targeting decisions. If this is his point, I am in full agreement. The secrecy associated with the drones program is understandable historically, but it has grown absurd as the program has ballooned in size and importance in U.S. counterterrorism policy. Today, everyone in the world knows that the United States kills Al Qaeda people with drones in Pakistan and (sometimes) Yemen. Each strike is a news story, and everyone knows who’s flying the drones. The government talks liberally about the strikes to a great many reporters–though never, of course, on the record. It boasts of its triumphs. The program has become the central element of the nation’s war against its enemy. And yet all of it is notionally a covert action; its legal rationales are classified and described only in the most general terms; the substantive standards for targeting are kept from public scrutiny; and the government feels no need–as Spencer describes–to share its evidence that a target was actually a legitimate target under the standard that it also won’t articulate.

Some of this secrecy is necessary; these operations necessarily involve a great deal of legitimately classified intelligence, and the need to protect sources and methods is real.

But some of the secrecy is not necessary. And the farcical situation in which we conduct our covert operations in public but won’t justify them publicly because they are covert, is not sustainable. It’s not sustainable precisely because people like Spencer Ackerman will not have faith in a program conducted under these circumstances. Indeed, why exactly should they?

With this Ben Wittes:

Remember, this is a person who:

  1. is believed to be “part of” enemy forces within the meaning of the AUMF;
  2. has been on notice for a lengthy period of time that he is regarded as such, is clearly aware of that, and has not only not denied it but actively taunted U.S. forces about their inability to get him;
  3. has not made any attempt to surrender;
  4. is believed to be playing an active, operational role in attacks against the United States; and
  5. is camped out in a country that is unable to exercise civilian authority in the region in which he is located.

Emphasis mine. Seems to me that the person who believes that the process through which we conduct our covert operations is “farcical” and “not sustainable”, and who finds it completely understandable why someone would “not have faith” in such operations should have some degree of skepticism regarding the “is believed” elements of the above argument. If it’s entirely reasonable for Spencer Ackerman to have doubts, then why should Ben Wittes (or Glenn Greenwald, the target of the second linked post) have such confidence about the charges against al-Awlaki?

I should also note that Wittes has been far too dismissive on point number 5, in this post and others.  If the United States can launch drone strikes in Yemen, and SOF raids in Pakistan, then it potentially could have launched an SOF raid in Yemen to grab/kill al-Awlaki.  The US launched such a raid against bin Laden because of what amounted to political reasons; the need to determine with a high degree of certainty than bin Laden was dead.  I would imagine that the Obama administration judged that the political cost-benefit analysis of a similar mission to grab al-Awkali was negative, and decided to blow him up instead.  We need to appreciate, however, that this is effectively a political judgement; not something that was demanded by military or legal necessity.  On this point, it is entirely reasonable to criticize the political priorities of the Obama administration.

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Comments (53)

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  1. Ken Houghton says:

    ” Today, everyone in the world knows that the United States kills Al Qaeda people with drones in Pakistan and (sometimes) Yemen.”

    There. Fixed.

  2. David Nieporent says:

    If it’s entirely reasonable for Spencer Ackerman to have doubts, then why should Ben Wittes (or Glenn Greenwald, the target of the second linked post) have such confidence about the charges against al-Awlaki?

    I would go further, and point out that the term “charges” is misplaced. I think you mean allegations. Al-Awlaki hasn’t been charged with anything. (And, one presumes, he never will be.) One of the common arguments we’ve seen in favor of killing the guy was Wittes’s points #2-3:

    has been on notice for a lengthy period of time that he is regarded as such, is clearly aware of that, and has not only not denied it but actively taunted U.S. forces about their inability to get him;

    has not made any attempt to surrender;

    But surrender to what? There was no indictment, no request to extradite him, no warrant out for his arrest. Had there been, that would have changed the flavor of things considerably. But since there wasn’t, Al-Awlaki wasn’t under any legal obligation to “surrender.” Many people acted as if he were a fugitive, but he wasn’t. The fact that he knew that the U.S. government was saying mean things about him didn’t create any duty for him to do anything at all. Indeed, if he had tried to “surrender” — if he had walked up to the U.S. embassy in Sana’a and said, “Hi, I’m Anwar Al-Awlaki” — they would have had no grounds to detain him.

    • rea says:

      Are you under the impression that pending charges and a warrant are needed for an arrest? Because that’s not true.

      • anon says:

        Instead of playing self-congratulatory lawyer games, why not stop being an asshole for one moment to tell us what indeed are the requirements for an arrest.

        • rea says:

          Probable cause is all you need for an arrest. And, lawyer or not, if you don’t know that, you probably should–that’s basic citizenship stuff. But of course, I’m just an asshole lawyer, so what do I know?

          • k says:

            That’s a nice bit of pedantry capped with an irrelevant point. Anwar Al-Awlaki *could* be arrested on vague grounds, but without charges being filed, he would have to be released within 72 hours.

            More importantly, it’s unlikely that he committed any crime. His speeches over the internet might have inflamed some passion, but they’re constitutionally protected following the precedent in Brandenburg v. Ohio.

            The administration has spun suspicions and guilt by association into claiming he had an operational role in Al-Qaida, but they ignore glaring problems like Al-Awlaki spoke Arabic very poorly and didn’t have the language skills needed to do organization.

          • Liebchen says:

            You are incorrect. Probable cause is needed to justify issuance of a warrant.

            An arrest may be made on probably cause without a warrant only if the arresting officer has seen the crime take place or has probable cause that a crime took place or that one was about to take place.

            Even then, the arrest would be subject to scrutiny later, and if there is an insufficient showing of probable cause the arrest could be rendered invalid. (Of course, this rarely happens, unless the arrest was blatantly improper. But how would a US law enforcement agent in Yemen possibly meet this burden?)

          • The Frito Pundito says:

            Asshole is obvious. Lawyer is not so clear. See below.

  3. Murc says:

    but actively taunted U.S. forces about their inability to get him;

    You know, that one statement troubles me a lot used as a justification. As well as

    is camped out in a country that is unable to exercise civilian authority in the region in which he is located.

    It implies that the privilege to not be blowed up by a drone is just that; a privilege, dependent on the state being able to seize you against your will using ‘polite’ means. If they can lay hands on you conveniently, they’ll do so. If they can’t? You eat a missile.

    The idea that sometimes people get away, and the mere fact they’ve done so doesn’t justify throwing out the rules, doesn’t seem to enter into the calculus at any point.

  4. RepubAnon says:

    How long before we send armed drones in to Mexican airspace to take out suspected druglords? Shades of the Harrison Ford movie “Clear and Present Danger”… except this time, there really won’t be any boots on the ground.

    • UberMitch says:

      Well, I suppose we can maybe accelerate this with donations to the Perry campaign.

    • Joe says:

      Well, tell Ron Paul and company not to authorize military force against them (as they did with Al Qaida in 2001) and perhaps we will not use armed drones or some other form of military force to target them.

  5. patrick II says:

    I agree that there should be a legal framework for the president to act within. However, I disagree with:
    We need to appreciate, however, that this is effectively a political judgement; not something that was demanded by military or legal necessity.

    Asserting a drone strike is not a military “necessity” is not the same as saying it has the same military risk. Sending troops into foreign territory risks their lives and is part of the assessment. I am not saying it isn’t a political judgement, only that it isn’t only a political judgement.

    • Tirxu says:

      I agree with you that there is added risk in sending troops, but I do not see why that should remove it from the reach of political judgment (even partially).

      • Njorl says:

        Sending troops after bin Laden was a political judgement because it deviated from normal military priorities. Troops were placed at avoidable risk in order to secure benefit beyond just killing him. Sending drones after al Awlaki was just military.

        There was no logical reason for capturing him. If he was an enemy combattant, he could be killed. If he were not, he could not be captured.

  6. Michael Drew says:

    A snatch mission in Yemen, besides being a completely different ballgame from Pakistan in terms of terrain according to at least one informed opinion I know of (Pat Lang’s), would also not be in any way similar to the mission to kill OBL. Snatch missions are far more difficult and fraught. In the OBL mission, SEALs were not sent in with even provisional snatch-and-grab instructions. It was a kill mission. They were basically told, unless you’re white-flag forced to accept his surrender, take out the target. They were not instructed to capture UBL.

    At some point of extremity, what you say is right. In theory you could attempt anything anywhere, so you’re dealing with probabilities of success. If you want to call that a political decision, fair enough. But I am fairly confident that his military advisers were not telling the president that a snatch mission to get Awlaki out of Yemen alive was roughly comparable in difficulty, risk, and success probability to the kill mission for OBL.

  7. Scott P. says:

    is believed to be “part of” enemy forces within the meaning of the AUMF;

    Well, we had al-Awlaki’s own words to that effect. Moreover, he publishes in al Qaeda’s own house organ. This really isn’t a “maybe he is/maybe he isn’t” situation.

    • DocAmazing says:

      Which al-Qaeda? (Big question: some are actual threats, some are unaffiliated one with the other, some are just noise.) And is “publishing” a command-and-control activity?

    • Joe says:

      “Merely” being a propagandist has been deemed a war crime when it is directly involved with indicting murder, such as in Nazi Germany or Rwanda. But, moving on from that, that wasn’t the only thing he was found to be doing.

      I second those who suggest “charge” is misleading. That is banded about — he wasn’t “charged” with anything in a criminal sense. That isn’t required to target Al Qaeda forces under the AUMF 2001 or international law. Or, the U.S. Constitution.

      The point of him knowing is that he had ample time to at least try to challenge the claims, including in federal court. I’d be supportive of giving him standing, even if not in custody (though he could have surrendered — it was a kill OR capture order), to do that.

      It was not a secret hit. His father after all went to court some time ago. It wasn’t on U.S. soil. It wasn’t somewhere that it was anywhere clear that we could capture him. Compare this to al-Marri or Padilla, seized domestically. Or, even OBL, where it is more hazy as to the ability to capture.

      • David Nieporent says:

        The point of him knowing is that he had ample time to at least try to challenge the claims, including in federal court. I’d be supportive of giving him standing, even if not in custody (though he could have surrendered — it was a kill OR capture order), to do that.

        Challenge what claims? How? While this isn’t my particular practice area, I’ve never heard of the concept of filing a declaratory judgment action seeking a finding that one is innocent of a criminal allegation. Nor can one enjoin arrest, let alone military action. (If he had brought such an action, it would probably have been blocked by, at a minimum, the state secrets doctrine.) What was he supposed to do, come up to the embassy and say, “Although the government hasn’t even seen fit to indict me, please arrest me so that I can prove my innocence”?

        While it’s true that capturing him would have been difficult, the U.S. didn’t try. The government didn’t even ask Yemen to arrest him, for instance.

        • Michael Drew says:

          You are aware that is exactly what happened, yes? His father filed a lawsuit seeking to enjoin the president from striking, and the court found that it couldn’t force the government to admit that it planned to, so there was nothing to enjoin against except a fear (and, to be fair, a Dana Priest article). This is all entirely illustrative of the problematics of the entire notion of judicial review of these matters. if an accused person is accused in court, the court controls the apparatus that actually holds the power over him (i.e. the court controls the bailiff; the imprisoning authority obeys the court as a matter of course. the right hand knows wha the left hand is doing). Courts, on the other hand, simply have no reach into the state’s war apparatus. If someone wants to accuse the president of a crime on available public evidence, that can certainly be done (though the House of Representatives is the court that has jurisdiction over such an accusation), but before the president even takes any given action, courts are frustrated in any attempts to enjoin him looking forward, because he doesn’t need to admit to any particular intention. Courts are left having to decide whether to enjoin imagined future actions. We can generally expect them to decline.

        • insipid says:

          Actually, he was tried-and convicted- in a Yemen court, in absentia. Greenwald and Company “conveniently” forget that.

        • Cinderella says:

          You’ve got to be kidding me—it’s so transrpeanlty clear now!

  8. Joe says:

    “farcical situation in which we conduct our covert operations in public”

    So, there was a public preview of how the mission to kill him was going down or what? The fact a target is in the government’s sights being public is not novel. There still is secrecy on how the force will be used as well as other things that are kept secret. What is “public” is very selective.

    “need to appreciate, however, that this is effectively a political judgement; not something that was demanded by military or legal necessity”

    Lots of military judgments are “political” in some fashion. It was “political” for the South to invade the North or do things to try to influence the ’64 elections. But, seconding Mr. Drew, how exactly do you know this was only a ‘political’ judgment especially since the two locations are quite different?

  9. Njorl says:

    Linking Witte’s arguments doesn’t make any sense. His positions are easily reconcileable. I can see how someone could disagree with either, but they are not close to being inconsistent.

    The official position on Al Awlaki was that he was an enemy combattant subject to being killed by military action. The actions of the government match the official position.

    The official position on the drone attacks in Pakistan and Yemen is no comment. That’s farcical.

  10. ajay says:

    We need to appreciate, however, that this is effectively a political judgement; not something that was demanded by military or legal necessity.

    There isn’t actually such a thing as a non-political military decision (“continuation of politics with the addition of other means”, remember?), certainly not when it’s being taken by the president of the US…

  11. karrsic says:

    Serious question: How is controlling drones by non-uniformed, civilian personnel a legal military action?

    • ajay says:

      Arguably it isn’t, as various people have argued: it’s in breach of the Geneva Conventions (the ‘non-uniformed’ point).

      http://tpmcafe.talkingpointsmemo.com/talk/blogs/b/o/bo_obama/2010/05/legal-issues-of-cia-using-pred.php

      “Hence, absent a prosecution, foreign powers – enemy combatants, fighting the United States and her allies – are lawfully allowed under Geneva to engage in reciprocal violations of the laws of war.

      This means that when the United States violates the laws of war, but does not take timely action to enforce Geneva against its own personnel, then foreign powers have the option to engage in like violations.”

      But then again, the opposition were breaking that provision first, so you could argue that the US is entitled to break the rules in its turn.

  12. Bill Owen says:

    New Rules.

    You can argue about this all day. The new rule is if the President wants to kill you, he will.

    The President has long exercised that ability globally, but now, now, President Whomever (or his designates, sure nuf) can kill you. Not even “legally”. He just can.

    Welcome to the rest of the world!

    Today we are all Americans.

  13. John Thacker says:

    I would imagine that the Obama administration judged that the political cost-benefit analysis of a similar mission to grab al-Awkali was negative, and decided to blow him up instead.

    Well, duh. People complain about holding prisoners in Gitmo. Nobody cares about killing them. I predicted this back when the protests about Gitmo started, that it would lead to a “shoot first” mentality.

  14. Forgive this very rare reader and first time commenter, but I got to toot my horn on the subjects of this post. For the non-covertness of the drone program, I wrote a post pointing out the obvious that drone strikes (bombs) are not covert to the victims or bystanders. (Classic Doonesbury strip included) The post embeds video of John Brennan’s recent speech at Harvard, which prompted the post. A small joke about covertness was made at 49 minutes, but at that point I hadn’t seen the huge guffaw people had at 52 minutes, when Ben Wizner asked Brennan, again jokingly, if the U.S. had a drone program. Funny stuff.

    I’ve been a gadfly to Ben Wittes for a while and since Lawfare doesn’t take comments, I finally had enough and went after him for the 5 points post on Facebook.

    Thanks.

  15. Kaykuri says:

    FYI: we have done boots-on-the-ground raids in Somalia, another “country” not in full control of its territory. Also coastal for easy helicopter access.

    Awlaki’s convoy has been reported as 2 vehicles. Not say that such a raid would be easy or foolproof, but spare me the “we tried and it couldn’t be done” line.

    The only thing that makes any sense is that they got the intel on short notice and didn’t have assets that could respond quickly enough. Wittes has argued that the Prez has an obligation to act when a target pops up on his screen. Fair enough, but again it places the onus back on the process by which a person becomes a legitimate target.

  16. EJ says:

    I can’t imagine that capturing him was ever on the table – so, we capture him and then do what? Put him on trial for maybe or maybe not standing next to a guy who made a phone call about a bomb plot?

    A trial would have been a farce, but now that he’s dead they can spin whatever story they want about him.

  17. elephty says:

    A serious problem with robotic targeting is that it makes killing easier. There is an existing problem of perceiving real world events in the abstract, thereby, distancing the doer from the deed. It is disturbing to think of destroying lives and infrastructure, but it is worse to divorce oneself from a controlling principle.

    The arbitrary nature of government actions and usually untenable justifications are a real threat to the democratic republic. Decisions in response to certain arbitrary government actions must be weighed against one’s understanding of the presumption of innocence, and the concept that no man is above the law.

    I was naive’ to believe that humans were flawed, subject to temptation, and error. I had no idea that there are special people who are above that petty concern.

  18. [...] a fugitive since he was never indicted by the U.S. for anything — but Robert Farley persuasively highlights the baselessness of the excuse that Awlaki could not have been apprehended (and he also documents [...]

  19. [...] any event, Awlaki was never a fugitive since he was never indicted by the U.S. for anything — but Robert Farley persuasively highlights the baselessness of the excuse that Awlaki could not have been apprehended (and he also documents [...]

  20. [...] Obama on September 30, 2011, of Anwar Awlaki and Samir Khan. Both Awlaki and Khan were killed by drone strikes, on foreign soil. Neither of the two men had been convicted of any crime in any court of law. Both [...]

  21. [...] then, for the reasons I discuss in this thread, I do think that the US government has different ethical responsibilities to American citizens and [...]

  22. floundericious says:

    You know … the real issue here, to me, is how Al-Awlaki ended up on the “kill list” and the existence of same

    The particulars of how he was murdered and by whom and by what means are moot. If the military apparatus and intelligence community receive orders to “terminate this person” they do, by God, have the capabilities these days to do it.

    The process for how and when and why and by whom a name is dropped into a list and then approved by some anonymous list of NSC principals and other key players…that’s the terrifying part of this. That arguably happened months ago…so how, exactly, does that happen…and what can anyone do about it!???

  23. [...] event, Awlaki was never a fugitive since he was never indicted by the U.S. for anything — but Robert Farley persuasively highlightsthe baselessness of the excuse that Awlaki could not have been apprehended (and he also documents [...]

  24. [...] any event, Awlaki was never a fugitive since he was never indicted by the U.S. for anything — but Robert Farley persuasively highlights the baselessness of the excuse that Awlaki could not have been apprehended (and he also documents [...]

  25. [...] any event, Awlaki was never a fugitive since he was never indicted by the U.S. for anything — but Robert Farley persuasively highlights the baselessness of the excuse that Awlaki could not have been apprehended (and he also documents [...]

  26. root_e says:

    The DOJ white paper point three is that the killing must be legal under rules of war. That is the target must be someone who is a legal target of a legal military action. To argue that this allows any citizen to be murdered is to engage in dishonest hyperbole. The white paper is a discussion of special care taken when the target of an authorized and legit military action is a US citizen.

    US Citizens joined the Wermacht during WWII and nobody bothered to take any special care of them – properly. The Constitution has never been interpreted as providing a shield for people who are engaged in military conflict with the United States. Tens of thousands of US citizens were shot by General Grand without a single judicial review. George Washington sent an army to Massachusetts to kill American citizens without judicial warrant. The responsibility of Congress is to make sure that the executive is only authorized to take military actions where absolutely necessary – a responsibility that they chickenheartedly evaded with the AUMF. But once authorized, military actions are not law enforcement actions and its really peculiar to argue otherwise.

    I’m also unimpressed with the light regard for the lives of US military personnel who according to some should be sent into tribal Yemen to safeguard the life of someone who never hesitated to proclaim his war against the US. How about we see a Civil Libertarians For Rule of Law volunteer cohort of warrant servers.

  27. [...] Anwar Awlaki, could possibly argue against using an armed drone against Dorner. [I]t’s far from clear that apprehending Awlaki would have been infeasible, and Dorner poses at least as much risk to [...]

  28. [...] killing US citizen Anwar Awlaki without a trial or charges based on suspicions of guilt: it’s far from clear that apprehending Awlaki would have been infeasible, and Dorner poses at least as much risk to [...]

  29. [...] killing US citizen Anwar Awlaki without a trial or charges based on suspicions of guilt: it’s far from clear that apprehending Awlaki would have been infeasible, and Dorner poses at least as much risk to [...]

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