The Senate hearings on the CIA this week were a turning point in rethinking US drone policies, the first official ripping away of the official veil of secrecy after a decade of congressional silence and administrative cover up.
Some critics of the drone war, like former CIA analyst Mel Goodman on Pacifica, have dismissed the February 7 hearing as only “a walk in the park,” but their anger may have distorted their analysis. Other critics were right to denounce the likely confirmation of John Brennan as CIA director. But the New York Times was correct in noting that it was “the first extensive public discussion” engaging a top administration official in serious questioning.
Critics also are right in criticizing the Committee chairperson, Sen. Diane Feinstein, for accepting the CIA’s estimate that annual civilian casualties are in the single-digits, for refusing to release her committee staff’s critical analysis of administration policy, and for her proposal to only slightly widen the circle of secret-keepers by creating a closed judicial proceeding to approve drone strikes in advance. Those positions are too timid for the scale of the problem.
But the ice of secrecy is breaking. The state secrets have been kept from the American people, the American media and, according to the testimony, even from the very Senate committee that was established as a public watchdog after the CIA scandals that were exposed in the 1970s. Even if the watchdogs of yesterday became lapdogs in the present, now they are beginning to bark.
On the eve of the hearing, President Obama disclosed to the committee a classified legal memorandum providing the rationale for the assassination of Anwar al-Awlaki. The memo, which is sure to leak out more widely, may include the “evidence” used to place al-Awlaki on the secret list that led to his killing in September 2011. The evidence is presumably so ambiguous that the administration was forced to expand its legal definition of “imminent threat” beyond all previous boundaries. According to the administration’s document released earlier this week, what is required is that “an informed, high-level official” determine that someone like al-Awlaki is a ranking leader of Al Qaeda or “an affiliate” and poses an “imminent threat of an attack against the US” (not a threat of an imminent attack). It is not necessary under current policy that the government of Yemen give permission for a CIA drone attack. The criteria also require a finding that capturing the targeted individual is not feasible.
Thus the White House, basing its decisions on either CIA or Pentagon evidence, often obtained from subjective informants on the ground, is the judge, jury and executioner of individuals on a “kill list” without any form of judicial due process or public notice.
Beyond the hearing, the next logical step should be hearings to draft legislative solutions to the current lapse of checks-and-balances under the regime of secrecy. This will be the first such effort since the 1973 War Powers Resolution, which Congress passed in the face of Richard Nixon’s objections during a time of public uproar over Vietnam and Watergate. The War Powers Act, which has received only voluntary compliance by all subsequent presidents, is lacking in any appropriate mechanisms to place checks on drone attacks. The legislation was written to cover ground combat – “sustained fighting” – and impose timelines for presidential reporting to Congress before requiring an official war declaration.
In the case of Libya, Obama reported to Congress on May 20, 2011, pursuant to the War Powers reporting requirements, that he had employed “precision strikes by unmanned aerial vehicles against a limited set of clearly-defined targets in support of the NATO-led coalition’s efforts.” The presidential letter signaled that drone strikes could fall under the War Powers Resolution provisions, but not if they are limited in scope and direction and if direct US military intervention on the ground is not required. Such a view is hardly shared by peace advocates, including some members of Congress. The Congressional Research Service (CRS) on February 17, 2012, concluded:
“…should Congress conclude that the War Powers Resolution should unambiguously require statutory congressional authorization of the military use of UAVs for counterterrorism operations, then it would likely have to amend this statute….” (CRS, p. 47)
In its original Senate version, the War Powers Resolution required prior congressional authorization for the introduction of American forces, not the presidential window of 60 to 90 days of military action allowed before seeking authorization.
Judicial review has been proposed before, including granting individual members of Congress standing to sue over violations of the War Powers Resolution, but never adopted.
Broader consultation with Congress has been proposed before as well, requiring a permanent consulting group of up to 18 members of both houses, as either an independent body or, suggested by Rep. Lee Hamilton back in 1993.
Revising the Long War Doctrine
The 2001 Authorization for the Use of Military Force (AUMF) is the underpinning of the administration’s legal position, and would need to be revised or terminated in addressing the drone question. From Harold Koh to John Brennan to Eric Holder, US officials have claimed that a state of permanent armed conflict exists with Al Qaeda, the Taliban and “associated forces.” A United Nations rapporteur has argued that that the US is carrying out extra-judicial killings, while the US asserts a right of self-defense to use lethal force “against our enemies…outside of an active battlefield.” (Brennan, September 16, 2011)
In the same speech, Brennan said that “over time, an increasing number of our international counterterrorism partners have begun to recognize that the traditional conception of what constitutes an ‘imminent’ attack should be broadened in light of the modern-day capabilities, techniques, and technological innovations of terrorist organizations.” Brennan’s words are striking in their implied assertion that “traditional conceptions” of law can be simply altered as conditions warrant – without judicial or congressional review.
According to a CRS memo by Jennifer Elsea, “the administration takes the position that targeted killings of foreign militants are not restricted to situations in which the target is planning, engaging in, or threatening an imminent armed attack against the United States,” can occur outside an “active battlefield,” and may be done in violation of the sovereignty of the foreign nation where the target resides. (CRS, May 4, 2012) Those criteria have evolved to include “signature strikes,” which is a kind of racial profiling based on “patterns” of group or individual activity, like any gathering of young males. (Washington Post, October 23, 2012) The kill lists are evolving into a broader “disposition matrix,” a database designed to target individuals who are somehow beyond the reach of drones. (Washington Post, October 23, 2012)
That’s what John Brennan was working on up until this year, as founding director of the targeting hub known as the National Counter Terrorism Center (NCTC). But in recent months, something began changing fundamentally, which led to this week’s tumultuous Senate hearing. Without knowing the reasons why – that may take another Bob Woodward book – Obama himself began unraveling the secret policies he had designed, authorized and implemented. This pattern by the president first was established in the period 2008-2011, when he advocated ending the war in Iraq while escalating the US combat mission in Afghanistan. He was the first president to campaign as dove and hawk, appealing to contrary impulses and constituencies at the same time. Now Obama seems to be both advocating the drone strikes while at the same time scaling back their indispensible layers of secrecy.
Consider: The drone strikes shot up with the Obama surge in Afghanistan, from 54 in 2009 to 122 in 2010, largely against insurgent sanctuaries in Pakistan. The killing of Osama bin Laden occurred on May 2, 2011 – and in that year the drone strikes dropped to 73, then to 48 in 2012, and 6 to 8 during this year thus far. (Long War Journal; New America Foundation) After the bin Laden killing, Leon Panetta, then CIA director, told Pakistani officials that the drone war in their country soon would be winding down. He quickly was told by the White House to avoid talking about the subject. (Washington Post, October 23, 2012) But it’s true, because any real peace settlement in Afghanistan will require ending drone attacks in Pakistan – and because the number of targets is dwindling to a “handful,” according to the Post account.
After Afghanistan and Pakistan, Obama did initiate the use of lethal drones across North Africa, though in smaller numbers, in countries where he says he has no intention of deploying US ground troops. They jumped in Yemen from four in 2010 and ten in 2011 to 42 last year and another five so far this year. (The Long War Journal) Those drone attacks, as in the case of Yemen, have continued to provoke controversy and opposition despite their lower cost and visibility.
In September last year, Obama spontaneously (or so it seemed) began a unilateral declassification of his own administration’s secrecy around drones, while casually acknowledging their use in a press conference and calling for a national “conversation” on the subject. Since then the president has been a steady source of leaks. On October 18, 2012, he told Jon Stewart that Congress should draft some “new legal architecture” in order to “rein in” himself, as well as future presidents. The presidential leaking – otherwise known as disclosure – continued right up to the eve of the Senate hearing when he ordered the release of the internal legal memo on targeting killings.
While the drone bureaucracy seems may seem to have a life of its own, the underlying policy has taken on a death of its own. An empire cannot be maintained by terror raining from the sky. The “reigning in” has begun.
For more, please see also by Tom Hayden, "'Bug Splat': Think Tank, Rep. Ellison Call for Drone Reform."