On Thursday, President Obama will give the first major speech on counterterrorism of his second term. The New York Times reported that the speech will mark the opening of "a new phase" of counterterror efforts with greater restrictions applied to the use of lethal drone strikes. There's reason for skepticism.
On Wednesday afternoon, in a letter to Congress, Attorney General Eric Holder for the first time formally acknowledged that U.S. drones had killed four U.S. citizens -- including Anwar al-Awlaki and his 16-year-old son. Bearing out long-held concerns in the human rights community over the description of these strikes as "targeted" killings, only one of these U.S. citizens (al-Awlaki senior) was on the government's kill list.
The New York Times' typically administration-friendly report suggests that Obama's speech will hail the dawn of a new age of high precision, unproblematic drone strikes. The language used in Holder's letter, however, alongside recent disturbing comments from top Pentagon officials, give us reason to doubt that the boundless, limitless War on Terror is coming to any sort of clean end.
The Times reported:
A new classified policy guidance signed by Mr. Obama will sharply curtail the instances when unmanned aircraft can be used to attack in places that are not overt war zones, countries like Pakistan, Yemen and Somalia. The rules will impose the same standard for strikes on foreign enemies now used only for American citizens deemed to be terrorists.
Lethal force will be used only against targets who pose “a continuing, imminent threat to Americans” and cannot feasibly be captured, Attorney General Eric H. Holder Jr. said in a letter to Congress, suggesting that threats to a partner like Afghanistan or Yemen alone would not be enough to justify being targeted.
The standard could signal an end to “signature strikes,” or attacks on groups of unknown men based only on their presumed status as members of Al Qaeda or some other enemy group — an approach that administration critics say has resulted in many civilian casualties. In effect, this appears to be a step away from the less restricted use of force allowed in war zones and toward the more limited use of force for self-defense allowed outside of armed conflict.
An end to strikes aimed simply at military-aged males displaying suspicious, "signature" behaviors would certainly be a welcome shift. And indeed any steps taken to limit the number of civilian casualties are to be welcomed. However, the Times seems to be suggesting that there is some clear, transparent standard in place already for targeting American citizens deemed to terrorists (a standard that could be neatly applied to foreign enemies). But to be sure, Holder's letter makes no such standard clear.
His referral to "a continuing, imminent threat" relies on the same problematic rubric that administration has used all along in justification of lethal drone strikes. As Sarah Knuckey, NYU lawyer and special adviser to the U.N. special rapporteur on extra-judicial killings, stressed at a recent Congressional hearing, "the legal concepts employed appear to be stretched beyond long-accepted understandings. Particularly concerning are broad or ill-defined interpretations of terms which regulate targeting, including an elongated concept of imminence, 'associated forces' and 'directly participating in hostilities.'"
As legal clinics from NYU and Columbia Law Schools, as well as human rights groups including Amnesty and Human Rights Watch, noted in a joint letter last month, the administration's construal of "imminence" (amongst other concepts) is in vital need of clarification and compliance with international law:
Some administration statements imply that the U.S. government may be attempting to borrow interpretations of “imminence” from the law regarding resort to the use of force (jus ad bellum), which involves a wholly separate inquiry into whether a state can lawfully use force in violation of another state’s sovereignty, to defend itself against an imminent threat.
If Holder's letter is anything to go by, Obama's comments Thursday are unlikely to assuage legal advocates and activists around the world demanding that U.S. policy and application of legal concepts apply to international standards. "Much more openness is still needed. The government must disclose its still-secret targeted killing memos so the public can determine if they contain criteria as vague and elastic as its definitions of ‘imminence’ and ‘feasibility of capture,’” said Hina Shamsi, director of the ACLU National Security Project, in response to Holder's letter.
"Dirty Wars" author and journalist Jeremy Scahill, in an early response to Holder's letter, highlighted how a new drone policy based on the standards applied for killing U.S. citizens deemed terrorists still needed much explaining:
Attorney General Eric Holder's letter raises more questions than it answers. While the Obama administration now admits it intentionally killed Anwar Awlaki despite never having charged him with a crime, it continues to insist that the evidence against him is too sensitive to be made public. The assassination of Anwar Awlaki was a watershed moment and crossed a dangerous line. The public has a right to know the full, legal basis for killing an American citizen without providing him any access to due process. How would Awlaki have surrendered when he was not even charged with a crime? How do you surrender to a drone?
Meanwhile, the Times notes that "Obama hopes to refocus the epic conflict that has defined American priorities since the attacks of Sept. 11, 2001, and even foresees an unspecified day when the so-called war on terror might all but end, according to people briefed on White House plans." And yet there have been troubling signals in recent months that drawing the boundless, limitless War on Terror to an end is far from the U.S. defense schedule. Firstly, plans to shift drone programs increasingly from the CIA to the Pentagon will codify shadow drone wars as fully integrated into modern U.S. warfare. Secondly, recent comments by top Pentagon officials to a Congressional hearing asserted that the War on Terror would continue without geographical boundary for at least another decade or two. Defending AUMF and its current controversial iteration, the assistant defense secretary told the Senate Armed Services Committee last week that U.S. military operations against al-Qaida and associated forces “is going to go on for quite a while… beyond the second term of the president. . . . I think it’s at least 10 to 20 years.”
Obama is expected Thursday to vehemently defend drone strikes as crucial counterterror operations, while attempting to assuage concerns about civilian casualties with the promise of more restricted policy. But the details of this policy and its undergirding tenets show no sign of making it into public view.