Killing Machine (34 page)

If one was not disturbed reading the early sections of the white paper, on page fourteen there was this sentence: “A lethal operation against an enemy leader undertaken in national self-defense or during an armed conflict that is authorized by an informed, high-level official and carried out in a manner that accords with applicable law of war principles would fall within a well established variant of the public authority justification and therefore would not be murder.”
Who would qualify as an informed, high-level official? A new CIA director, John Brennan, who for four years had been known as the “czar of drones”? The chair of the Joint Chiefs of Staff? A drone pilot who spotted a target of opportunity from the kill list?

When the white paper appeared, the “informed” public had not yet absorbed all the revelations about presidentially decreed death sentences from six months earlier, or the follow-up story about the White House concern to write a rule book lest someone less trustworthy win a presidential election and gain entrance to the Oval Office. But John Bellinger, a legal adviser in the State Department during the Bush years (the post now held by drone defender Harold Koh), had already expressed concern about the legal risks of heavy reliance on drone warfare. He feared it could become Obama’s “Guantánamo.” The problem was that the legality of drone warfare (as it was practiced by the United States) had not been accepted by other nations, including America’s allies, and human rights groups. For a time Bellinger had thought that there was only a 25 percent chance these criticisms would malign the administration, given the overwhelming support Obama had when he became president. “But over the last eighteen months,” he wrote in January 2013, “I have seen a crescendo in international criticism, resulting in lawsuits in the U.S., Britain, and Pakistan, and a potential decrease in intelligence cooperation . . . I would not be surprised if, in the next year, war crimes charges are brought against senior Obama officials in a European country with a universal jurisdiction law. The Administration is increasingly on the back foot internationally in explaining and defending the legal aspects of the drone program. It needs to step up its efforts.”
⁵

The white paper’s talk about an informed, high-level official’s authority to act in place of the president—or even without his knowledge—raised a host of new questions not only about the memo’s argumentation but also about the events surrounding its construction. The afternoon the first
Times
article appeared, May 29, Jake Tapper of ABC News questioned White House press secretary Jay Carney on the air, asking how the president squared the “guilty until proven innocent” standard used in “signature strikes” with his
past language on human rights and avoiding civilian casualties. This administration had tools, Carney said, “that allow for the kind of precision that in the past was not available.”

       
TAPPER:
It’s fact that he has tools to avoid civilian casualties.

       
CARNEY:
Mmm, hmm.

       
TAPPER: SO
you are disputing the
New York Times
story or the Dan Klaidman excerpt in the
Daily Beast
today that there have been civilian casualties?

       
CARNEY:
I’m not—I don’t have the assessments of civilian casualties. I’m certainly not saying that we live in a world where the effort to fight against al-Qaida, against people who would, without compunction, murder tens of thousands if not millions of innocents—

       
TAPPER:
I’m not talking about them. I’m talking about the innocent people that the United States kills.

       
CARNEY:
No, no, no. No, but . . . we don’t live in a world where it is possible to achieve, you know, no civilian casualties.
⁶

In the days and weeks before and after the
Times
article, the United States carried out a series of drone strikes in Pakistan. The strikes had little—in fact, nothing—to do with saving Americans in the homeland, but reeked of retaliation for Pakistan’s continued refusal to reopen supply lines into Afghanistan after the clash the previous winter that had left twenty-four Pakistani soldiers dead, and its sentencing of Dr. Shakeel Afridi to thirty-three years in prison for his aid to Americans in planning the attack at Abbottabad that killed Osama bin Laden. Bill Roggio, the editor of
Long War Journal
, reported that nearly twenty strikes had been carried out in recent months, including two in recent days: “No senior leaders from al Qaeda, the Taliban, or other allied terror groups have been reported killed in either strike. A US intelligence official involved in the drone program in the country told
The Long War Journal
that the strikes would continue now that Pakistan has refused to reopen NATO’s supply lines for the International Security Assistance Force in Afghanistan.”
⁷

A week or so later, American officials claimed that they did hit an important target, senior al Qaeda leader Abu Yahya al-Libi. He was so important, it was said, that they would be hard pressed to find any one person to step into his shoes. Libi fit the Awlaki mold and was much better suited to leadership roles than Ayman al-Zawahiri, al Qaeda’s current number one. He had “gravitas” as a long-standing leader in the movement, and “his religious credentials meant he had the authority to issue fatwas and provide guidance to the Pakistan-based operation.” It was no longer required, evidently, to demonstrate imminence—membership in al Qaeda was enough. There were two strikes that day. The first killed Libi, and a second killed “12 more militants who had arrived at the scene.” These follow-up strikes that killed people who came to the scene were an especially sore spot with the Pakistani government. Islamabad called anew for an end to the drone strikes, issuing a statement that they represented “a clear red line for Pakistan.” “Many observers believe that the attacks have been a means of applying pressure on Islamabad,” reported the BBC, “after a deal to reopen NATO supply routes fell through.”
⁸

More interesting than what many observers believed, however, was the BBC’s comment that the United States did not normally talk about individual drone operations, but this one came after the
New York Times
revealed the president “personally approves or vetoes each drone strike.” In other words, the official statements were a follow-up to Jay Carney’s assertion that Americans had the tools to take out the really bad guys with precision. That did not answer the question, however, about signature strikes against anyone who shows up at the scene within a given period of time.

Strikes in the tribal areas continued at a high rate throughout the summer, each drawing a protest from Islamabad, until the question of national sovereignty seemed but a quaint reference to long-ago days. “A volley of C.I.A. drone strikes in Pakistan’s tribal belt early Friday,” reported the
New York Times
, “killed at least 18 people . . . capping a week of missile attacks that have renewed tensions between Pakistan and the United States, but may have killed a major militant leader.” In Vietnam body counts, the magic kill
ratio to defeat an insurgency was ten to one; do that and you win the war. Now it seemed that you could kill eighteen without losing one—but the war continued anyway.
⁹

The article also noted that American officials were eager to confirm another big kill, Badruddin Haqqani, whose family’s crime syndicate had long bedeviled U.S. efforts in Afghanistan through high-profile kidnappings, smuggling, and day-to-day militant operations. Furthermore, Pakistani officials, who had reopened the supply lines (maybe drone pressure worked), had proposed that they carry out future strikes using their fleet of American-built F-16s. “The Obama administration has rejected those demands, saying the covert campaign offers the most effective tool against militants in an area where the Pakistani state has largely lost control.”
¹⁰
Covert, in this sense, meant secret from Islamabad, because of fears that the ISI and the Haqqanis sometimes worked together.

Thus the summer of 2012 saw a more audacious use of drones by the CIA—presumably working not under an expanded version of either of the Authorizations for Use of Military Force of 2001 and 2002 but Article II of the Constitution, which named the president commander in chief of the armed forces and pledged him to defend the Constitution. These legal niceties had everything to do with the question of whether such attacks could be called acts of war or acts of self-defense. Using the latter rationale, the CIA had truly become the president’s private army with rules all its own outside any current international obligations under laws of warfare between sovereign states. The killings of Libi and Haqqani blurred the distinctions somewhat, as American officials wanted to claim the former death under Article II (a global terrorist eliminated) and the latter under the Authorization to Use Military Force (an enemy combatant killed in pursuit of the Afghan War). But the CIA had planned and executed the attacks in both instances. The solution would be to name the Haqqanis “a terrorist entity”—that would take care of it.

Also in the summer of 2012, the Obama administration reaffirmed commitments to the authoritarian regimes in Kazakhstan and Turkmenistan as rewards for their “assistance in Afghanistan
and the fight against terrorism.” Washington, wrote Walter Pincus, “seems to be seeking long-term footholds in these two countries, which are adjacent to Russia, China and Iran.” There was much talk in the summer about a pivot to Asia as the Afghan War (or, at least, American participation in the Afghan War) dwindled. The sums of aid proposed were tiny compared with the cost of one or two drones, but it allowed the regimes to claim “to their people that they have the Obama administration’s endorsement.” Next up there might well be requests, under the rubric of fighting terrorism, for drone bases.
¹¹

The spread of new drone bases went on apace, some of them closely guarded secrets—for example, one in Saudi Arabia. It was constructed after two failed strikes in Yemen—the first aimed at Awlaki—killed dozens of civilians and a popular deputy governor, “inciting angry demonstrations and an attack that shut down a critical oil pipeline.” The Obama administration had asked the
Times
and the
Washington Post
to keep the existence of the base secret, on the usual grounds of “national security.” “The first time the C.I.A. used the Saudi base was to kill Mr. Awlaki in September 2011.”
¹²

One reason for the continued stonewalling about drone strikes that everyone knew were “made in the USA” was to conceal the existence of this Saudi base. After the Department of Justice white paper emerged, however, the two papers decided they had made a mistake in agreeing to keep silent. If there was to be a full debate, the public had a right to know everything it could about how the drone war was conducted. The Brennan nomination also prompted the break, out of concern that his leading role constituted a fair subject for discussion. The public editor of the
New York Times
, Margaret Sullivan, explained all of this in an editorial.

I’ll be writing more about this, including how The Times is trying in court to obtain an important, classified memo on the killing of an American, Anwar al-Awlaki, in a drone strike. His teenage son, also an American citizen, was also killed by a drone. The lack of due process and government accountability in those deaths are
worthy of the attention The Times is giving it—and more—in articles from Washington, in reporters on the ground in the region of the strikes, and in court.
¹³

One would be hard pressed to find a similar challenge to officialdom when the government has declared that it is at “war” with an enemy force. During World War II posters in factories and military bases proclaimed, “Loose Lips Sink Ships.” That was enough. Things had changed radically since then, beginning with revelations about the way the government had obtained the Tonkin Gulf Resolution in 1964, which enabled Lyndon Johnson to send half a million American troops to Southeast Asia under false pretenses, and George W. Bush’s claims that Iraq had a panoply of weapons of mass destruction ready for use against the “free world.”

The rationale for drone warfare, of course, was that normal conditions of warfare did not exist in this case—and likely ones in the future. Counterinsurgency theory had posited wars without front lines; now drone theory and practice simply assumed that national boundaries did not really mean sovereignty. If states were unable or unwilling to chase down “terrorists” in remote areas, the United States would do it, with or without permission. In some cases, for example Yemen, local rulers found that drones offered an advantage in fighting insurgents—who could always be labeled jihadist militants—and no more need be said. But if drone warfare ignored national boundaries, the blowback at home also meant that official statements no longer commanded automatic obedience whenever the magic words “national security” appeared in press briefings or Justice Department court filings.

The argument government officials made in requesting that the base be kept secret warned that publication could set off protests inside Saudi Arabia if it were revealed, potentially destabilizing America’s staunch ally. “The Saudis might shut it down because the citizenry would be very upset,”
Times
editors were told.
¹⁴

Concern about the stability of America’s chief Middle Eastern oil supplier was not something new. At the end of World War II when the United States sought its first air base in Saudi Arabia,
the negotiations were complicated by the Saudi royal family’s fear of stirring up the population against the idea of such an intrusion. The main selling point Washington had was that such a base would increase domestic communications—and control. Leaping forward to the period before the Second Gulf War, Paul Wolfowitz, a key planner in the Department of Defense, told an interviewer that removing Saddam Hussein from the scene would enable the United States to get its ground forces out of Saudi Arabia.