Killing Machine (33 page)

Thus Brennan left open several side avenues leading out from the main line of his thinking. Vengeance was not a motive, but previous acts counted when considering the imminence question. And imminence could increase if the individual was deemed to possess “unique operational skills” or presumed political leadership qualities. In effect, drone war death warrants were like “John Doe”
warrants police used in chasing down suspects. Perhaps without quite meaning to do so, Brennan actually confirmed what many thought about drone warfare: that the United States could well be fighting in other countries’ civil wars and that the term “unique operational skills” covered myriad attributes, but in the signature case of Awlaki it meant being inspirational. During the speech a woman rose “to speak out on behalf of innocent victims” killed by drone strikes in Pakistan, Yemen, and Somalia. A burly guard lifted her and carried her out as she shouted out the names of alleged drone victims and declared she was speaking out “on behalf of the Constitution—on behalf of the rule of law.”

With Brennan’s speech the administration rested its case. Then on Sunday, May 29, 2012, the
New York Times
pulled aside the curtain that had hung over White House deliberations and decisions. Jo Becker and Scott Shane titled the long article—really a mini-history of the administration’s reimagining of the war on terror—“Secret ‘Kill List’ Proves a Test of Obama’s Principles and Will.” Two statements framed the article: first, Obama was “a realist who, unlike some of his fervent supporters, was never carried away by his own rhetoric”; second, his national security team had advised him in 2008 that the bywords of his campaign and presidency should be “Pragmatism over ideology.”

In a sense, the authors were telling the American public that Barack Obama had never been what they thought he was: “A few sharp-eyed observers inside and outside the government understood what the public did not. Without showing his hand, Mr. Obama had preserved three major policies—rendition, military commissions and indefinite detention—that have been targets of human rights groups since the 2001 terrorist attacks.”

That was pretty plain. But the article was even more specific about “Terror Tuesdays,” the weekly White House meetings at which, at his insistence, Barack Obama presided and was presented with “what one official calls the macabre ‘baseball cards’ of an unconventional war.” His aides told the reporters that he had several reasons for being so personally involved in the fateful decisions. He was a student of writings on war by Augustine and Thomas Aquinas
and believed he should “take moral responsibility for such actions.” The control he exercised “also appears to reflect Mr. Obama’s striking self-confidence: he believes, according to several people who have worked closely with him, that his own judgment should be brought to bear on strikes.”

The article described how shocked the president had been at some of the errors in the drone strikes that caused civilian deaths, and how he and his drone adviser John Brennan worked hard to bring better discipline. Protection of innocent life, said Michael Hayden, a former CIA director, “was always a critical consideration.” But then pragmatism took over again and Obama “embraced” signature strikes as an accepted method for getting at terrorist planning meetings. “It in effect counts all military-age males in a strike zone as combatants . . . unless there is explicit intelligence posthumously proving them innocent.”

It is at this point that we begin to understand why the administration had refused to release the memo from the OLC that justified the killing of Anwar al-Awlaki. Any attempt to cover all the policies “embraced” by President Obama in one memo or a series of memos would cause the whole rationale to collapse in a heap of legal jargon that would convince no one. It was much better to talk about precision and lives saved as opposed to airplane bombings and ending the war in Afghanistan sooner than the Pentagon wanted. Only “crazy leftists,” as one Obama spokesperson put it, would continue to complain that the president was not perfect.

But within days—hours, even—the
Times
article was reverberating across the Web and then solidifying into hard copy in magazines and newspapers. For some it came as an unpleasant surprise that there actually had been debates inside the administration about how far down the “Qaeda totem pole” one could go—“how much killing will be enough.” Others commented on statements about the president’s chief political adviser, David Axelrod, sitting in on the “Terror Tuesday” meetings, “his unspeaking presence a visible reminder of what everyone understood: a successful attack [in the United States by al Qaeda] would overwhelm the president’s other aspirations and achievements.” Still others would concentrate on
the blowback of drone attacks on foreign policy efforts, as illustrated in this quote: “His focus on strikes has made it impossible to forge, for now, the new relationship with the Muslim world that he had envisioned. Both Pakistan and Yemen are arguably less stable and more hostile to the United States than when Mr. Obama became president.”

Soon after the article was published, said one of its authors, Scott Shane, the administration began to write a rule book for targeted killings. Revelations about the president’s central role “in the shifting procedures for compiling ‘kill lists’” provided the impetus. The president was afraid to leave an “amorphous” program to his successor: “There was concern that the levers might no longer be in our hands.”
⁵¹

Once Obama defeated Mitt Romney, the urgency seemed not so great—the administration could relax a bit and make sure such a rule book did not hamper important targeting goals for places where signature strikes had been used most often, Pakistan. The assertion that this new form of a “better war” could not be entrusted to a future president without safeguards in place revived the “trust us” standard and placed it higher than ever. But more than that, it skipped right past the question of whether the Oval Office could act by itself in writing such a rule book, to say nothing of how easy such an action would make it for any future president to take out rules that proved difficult to manage or just plain irksome.

Obama’s reelection set the stage for a fundamental debate on American military strategy when the president nominated John Brennan to head the Central Intelligence Agency.

8

AMERICAN HUBRIS

Do
the United States and its people really want to tell those of us who live in the rest of the world that our lives are not of the same value as yours? That President Obama can sign off on a decision to kill us with less worry about judicial scrutiny than if the target is an American? Would your Supreme Court really want to tell humankind that we, like the slave Dred Scott in the 19th century, are not as human as you are? I cannot believe it
.

—Bishop Desmond M. Tutu, letter to the
New York Times
, February 11,2013

A letter written by Bishop Desmond M. Tutu to the editors of the
New York Times
in February 2013 referred to an article that had appeared in that paper about an idea floating around the hearings on John Brennan’s nomination to head the Central Intelligence Agency—the idea of a special court to vet the killing of American citizens. Even the most ardent drone supporters had become nervous about setting a precedent when it came to targeting citizens. But Tutu’s letter challenged
all
drone warfare. The Nobel Peace Prize winner tied the deadly use of drones to the 1857
Dred Scott
decision in order to place claims of moral outrage at the top of the agenda. He did not concern himself with arguments about the precision of drone attacks or that fewer people died as a result than would have been the case in bombing raids. He argued instead that drones were a weapon used exclusively for death-dealing strikes within countries the West sometimes called “failed states,” populated by non-Western peoples.

The failure to understand Tutu’s point offers evidence of just how far American policy makers have sealed themselves into their
Hazmat suits. But a few have not, such as Hank Crumpton, a former CIA Counterterrorist Center officer who told Mark Mazzetti there should be a huge debate about when and where we apply lethal force. In a place like Yemen or Somalia or Pakistan, he said, “it seems like just another part of war.”

But, he asked, what if a suspected terrorist is in a place like Paris, or Hamburg, or somewhere else drones can’t fly, “and you use a CIA or [military] operative on the ground to shoot him in the back of the head?

“Then,” he said, “it’s viewed as an assassination.”
¹

From the opposite end of the spectrum came a warning that Tutu’s argument could not be ignored, for it reflected a general shifting of the sands of ethical warfare away from the old just-war theories, like those advanced by Tutu’s fellow Nobel Peace Prize laureate President Barack Obama. Western society, with its growing concerns about torture and the universal nature of human rights, had moved toward “an increasingly empathetic culture,” wrote James Jay Carafano, a foreign and defense policy specialist with the
Heritage Foundation
. Carafano was hardly happy about the implication, as he saw it, that “feelings rather than reason” would come to rule international affairs. The just-war tradition that Obama had invoked from the time of his Nobel speech was falling before the onslaught of the “lawfarers,” whose efforts to blur the line between law and political advocacy threatened to “undermine America’s legitimate efforts to exercise its sovereignty and act in its own interests as it sees fit.”

All the same, he conceded, President Obama’s passion for drones had speeded up the undoing of just-war doctrine: “The president may have to ponder if he accelerated that change by pursuing a strategy fixated on playing global whack-a-mole with terrorist leaders. An overreliance on technological ‘fixes,’ after all, always strikes a nerve among people who prize the heart far beyond the head.”
²

Others might argue that technological fixes in warfare such as the atomic bomb had ruled both the head and the heart of many
Western policy makers, especially in confrontations with “backward” societies. From the beginning, the whole idea of the “American way” of war preferred using machines to avoid losing men. Metropolitan armies rode tanks, flew airplanes, and dropped bombs from the skies. But the point to consider here is that President Obama’s second term opened with perhaps the most significant debate—or at least the potential for a debate—about the nation’s direction in both foreign and domestic policy since the end of the Cold War. George H.W. Bush had pursued a “new world order” by driving Noriega out of Panama and chasing Saddam Hussein out of Kuwait. Clinton used airpower in Kosovo. After 9/11 George W. Bush focused on Iraq’s imaginary weapons of mass destruction, and so could not find Osama bin Laden; President Obama had accomplished closure on that era by bringing its author to “justice.”

But the Game of Drones continued, with the stakes getting ever higher, or lower, depending upon one’s viewpoint. The idea of a special court—one that would meet in secret to oversee death sentences—was in the air at the time of the Senate hearings on Brennan’s nomination. But also before the public eye was a sixteen-page Department of Justice white paper leaked to NBC News, a document that derived from still-secret memos from the Office of Legal Counsel used to justify the killing of Anwar al-Awlaki.

Various members of Congress had requested access to those memos on fourteen different occasions since February 2011, continuing right up to the Brennan hearings two years later—without success. During lawsuits to see the memos brought by the American Civil Liberties Union and the
New York Times
, government lawyers argued that the plaintiffs had not defined what was meant by calling for documents about a “targeted killing program,” as if such a program did not exist. The Senate Judiciary Committee under Democratic control supported the administration’s noncompliance in the requests. But Iowa Republican Charles Grassley complained that on January 20, 2009, the newly inaugurated President Barack Obama promised his would be the most transparent administration in U.S. history. “So we’ve got a license to kill Americans, and we don’t know the legal basis for the license to kill Americans. And we
oughta know that. And we’re not going to find out if we don’t legislate it because our letters haven’t been answered.”
³

Arizona Republican Jon Cornyn, a staunch conservative, added:

We’re not mere supplicants of the Executive Branch. We are a coequal branch of government with the Constitutional responsibility to conduct oversight. . . . So it is insufficient to say, “[P]retty please, Mr. President, pretty please, Mr. Attorney General, will you please tell us the legal authority by which you claim the authority to kill American citizens abroad?” It may be that I would agree with their legal argument, but I simply don’t know what it is, and it hasn’t been provided.
⁴

The Department of Justice memorandum would be the closest thing to an official response that Congress would get—and it shocked readers out of their post-inaugural parade daydreaming about the next four years.

Revelations

Although the administration was careful to say that nothing “classified” had been revealed in the memo NBC News obtained, the language of the memo certainly suggested it was an amalgam of the still secret justifications locked away in Attorney General Holder’s safe. By leaking the document and not calling it “classified,” the administration apparently hoped to satisfy demands for more information and clarification without breaking with its stolid insistence that “national security” issues were at stake should the actual memos be released.