America’s Drone War: Soft License to Kill

Many things about America’s drone war are secret. Only since a memorandum revealed how offhandedly the White House decides issues of life and death has the country started to discuss the morals of a remote-controlled anti-terrorism war.

Until recently, Daniel Benjamin was the coordinator for counterterrorism at the U.S. Department of State. He resigned in January, at the same time as his boss, Hillary Clinton, whose husband, Bill Clinton, he had already worked for on the Nation Security Council of the White House. Perhaps he did not like the shadow in which he was standing. These days, Benjamin says about John Brennan, the chief counterterrorism advisor and President Barack Obama’s nominee to head the CIA: “He’s probably had more power and influence than anyone in a comparable position in the last 20 years.”

Benjamin does not deny that Brennan’s power appears eerie to him. He probably does not stand alone in that opinion; however, the American media and public are taking their time to realize what influence Brennan actually has: He has the power to decide matters of life and death, which derives from the secret air force of 6,000 drones that is at his disposal. In his office on the ground floor of the White House, Brennan has the power to define who goes on the “kill list.” He presents the names of enemies of the state who should be killed to the president. Obama usually follows the suggestions of his appointee and approves the order to kill the named terror suspects.

“Legal, Ethical and Wise”

On Thursday, Brennan had to attend a hearing before the Senate, where he had to undergo a critical interrogation. It is probably no coincidence that two days prior a copy of a memorandum was leaked to NBC, which does not bear Brennan’s signature but otherwise perfectly fits his politics. Brennan, in his position as deputy national security advisor for homeland security and counterterrorism, is the intellectual architect of the drone war, which has been extended since Obama’s inauguration.

The not only unsigned but also undated “White Paper” consists of 16 pages – the brief version of a longer legal opinion. Only shortly before the start of the hearing, Obama agreed to pass on the still confidential long version to the members of the Senate Intelligence Committee. The now published memorandum was written by the Justice Department and is titled: “Lawfulness of a Lethal Operation Directed Against a U.S. Citizen who is a Senior Operational Leader of Al Qaida or an Associated Force.” The short paper itself is not classified as confidential. It was presented to the members of the Senate Intelligence and Judiciary Committees this past June on condition that it would not be discussed publicly.

The memorandum has led to a fierce public debate that could no longer be ignored by the White House. During the turbulent press conference on Tuesday, Press Secretary Jay Carney consistently sought refuge in a written statement whose sound is typical of the president and his staff’s stance: “These strikes are legal, they are ethical and they are wise”, said Carney. But the legal opinion on the license to kill contains several blurry paragraphs.

Virtually No Limits

To begin with, three requirements are laid out for a targeted killing of an American citizen who is suspected to be a senior operational leader of al-Qaida or an associated force. First, “an informed, high-level official of the U.S. government” – in most cases this would have hitherto been John Brennan – has to determine that he is a terrorist leader and that he “poses an imminent threat of violent attack against America.” Secondly, the official has to be convinced that an imprisonment of the suspect would be impractical. Thirdly, it has to be consistent with all four basic principles of the war law: The strike has to be necessary, precise, reasonable and humane.

Nonetheless, later on these confinements are so softened that they virtually do not set any limits. “The condition that an operational leader present an ‘imminent’ threat of violent attack against the United States does not require the United States to have clear evidence that a specific attack on U.S. persons and interests will take place in the immediate future.” The general suspicion suffices that the suspected person is or will be involved in planning an attack against Americans or American interests at some point.

Even the limitation that the seizure of a suspect (and later on a fair trial before a civil or a military court) is not possible only means that at a precisely defined time the arrest only appears possible under high risk to the soldiers, or that another state refuses its approval for an operation leading to the arrest. As a matter of fact, however, for hundreds of drone attacks, Washington does not seek any approval but rather acts as it pleases. As is known, the Pakistani government was not informed prior to the operation against Osama bin Laden on May 2, 2011. During this operation, which was undertaken by a special unit of the American naval force in Abbottabad, an arrest would have probably been possible without exposing soldiers to a high risk. But the orders for the Navy SEALS was clearly to kill the head of al-Qaida instead of arresting him.

A Secret Airport for an Almost Secret Air Force

The third limitation is also widely stretched: The act of humanity during an attack is already fulfilled when “unnecessary suffering is avoided,” and it is again up to the “high-level official” to distinguish unnecessary from necessary suffering. According to the expert’s opinion, civilians are only to be spared if “their suffering was excessive in relation to the anticipated military advantage.” The fact that, according to inquiries by the Bureau of Investigative Journalism in London as well as by Pakistani human rights groups, during the 310 drone attacks against al-Qaida and the Taliban in Pakistan since Obama’s inauguration up to 890 civilians were killed – among them at least 176 children — shows that the White House acts in a rather large scope at its own discretion. The total number of casualties is estimated to be between 2,600 and 3,400.

As far as anyone knows, so far three American citizens have been killed during drone attacks: On Sept. 30, 2011, Anwar al-Aulaqi, the American-Yemeni hate preacher who was born in New Mexico, as well as Samir Khan, who was of Pakistani descent, were killed in South Yemen. On Oct. 16, 2011, Aulaqi’s then 16-year-old son Abdul Rahman was killed along with many others during a further drone attack. By now, it is known that those drones were sent off from a secret CIA base in Saudi Arabia – Brennan’s “secret airport” for an almost secret air force.

Years of Collective Silence

The CIA and Pentagon’s armada of unmanned aircrafts consists of approximately 6,000 drones today. The targeted killing of the three American citizens during Obama’s presidency has thus far created less popular outrage in the U.S. and abroad than the practice of waterboarding, a method of interrogation considered to be torture, which was used against the three foreign terrorist leaders – Khalid Sheikh Mohammed, Abu Zubaydah and Abd al-Rahim al-Nashiri – during George W. Bush’s term. These three foreign terrorist suspects are now – after their imprisonment in secret CIA prisons from 2003 until 2006 – held in Guantánamo and are represented by assigned American counsels during trials before the military tribunal.

After years of collective silence, the American media is now starting to ask questions. Why is it more humane to “drop a bomb” on someone than to torture him, wondered ABC correspondent to the White House Jonathan Karl. Ari Shapiro of the public radio channel NPR asked: “Why does the government believe it’s legal to kill Americans abroad, but not inside the U.S.? There’s no Constitutional distinction — it’s just that capture is not feasible [inside the U.S.]? If imminence is one of the major tests, a plot in the United States would be more imminent than something abroad?”

Sarah Holewinksi of the Center for Civilians in Conflict at Columbia University New York summarized the change in strategy in the war on terrorism from George W. Bush to Barack Obama as follows: “We’ve shifted from major boots on the grounds to an entirely secret operation in which not even the American people understand the costs or strategic benefit to what is being carried out in their name.”