Senate Committee to Focus Attention on Legality, Transparency of Drone Warfare

April 10, 2013

by Jeremy Leaming

Though then-presidential candidate Barack Obama often blasted President George W. Bush’s expansion of presidential powers to fight terrorism, once in the White House he quickly embraced those powers which have only swelled during his tenure.

Earlier this year, Bill Moyers, during a segment, “The Legal and Ethical Case Against Drones,” highlighted a comment President Obama gave early in his first term.

“Our actions in defense of our liberty will be just as our costs, and that ‘We the People,’ will uphold our fundamental values as vigilantly as we protect our security,” Obama said. “Once again, America’s moral example must be the bedrock and the beacon of our global leadership.”

The president’s rhetoric, however, does not mesh with what we are discovering about the ramped up use of Reaper and Predator drones to target suspected terrorists. Reporting by Mark Mazzetti for The New York Times provides insight into the “origins of a covert drone war that began under the Bush administration, was embraced and expanded by President Obama, and is now the subject of fierce debate.”

Part of the debate includes whether the Obama administration has tossed aside some of the fundamental values the nation cherishes, such as due process and being a defender of human rights globally.

A “white paper,” leaked earlier this year and made public by NBC is apparently a summary of a lengthier document prepared by a few attorneys in the Department of Justice’s Office of Legal Counsel (OLC). The white paper makes the argument that a high-ranking government official, like the president, can order the killing of a U.S. citizen integral to or associated with al Qaeda abroad if the person poses an “imminent threat of violent attack” against America, the person is unlikely to be captured and that the killing operation would be conducted in accordance with laws governing war.” The OLC white paper also asserts that no court oversight of the administration’s targeted killing regime is required.

The Senate Judiciary Committee’s Subcommittee on the Constitution, Civil Rights and Human Rights chaired by Sen. Dick Durbin (D-Ill.) will conduct a hearing on April 16* to explore the “constitutional and counterterrorism implications of targeted killings.” According to a statement announcing the hearing, senators will “also explore proposals to increase transparency regarding U.S. drone policy and establish a legal architecture to regulate drone strikes.”

The administration has endeavored to shroud its policy on drone warfare in secrecy, but release of the OLC white paper and the mounting numbers of civilians killed in drone strikes are making it more difficult to keep the policy under wraps. The ACLU has lodged a Freedom of Information Act lawsuit to force the administration to release the entire memo, for instance.  

The escalation of drone warfare is likely also not helping Obama’s desire for America to remain a beacon of “global leadership.” As The Times’ Scott Shane reports, since taking office the CIA and military “have killed about 3,000 people in counterterrorist strikes in Pakistan, Yemen and Somalia, mostly using drones.”

Jonathan S. Landay reporting for McClatchy Newspapers uncovers U.S. intelligence reports that undercut the Obama administration’s repeated claims that its drones are being deployed only against top leaders and allied groups of al Qaeda.

“The intelligence reports list killings of alleged Afghan insurgents whose organization wasn’t on the U.S. list of terrorist groups at the time of the 9/11 strikes; of suspected members of a Pakistani extremist group that didn’t exist at the time of 9/11; and of unidentified individuals described as ‘other militants’ and ‘foreign fighters.’”

The reports also reveal, according to McClatchy that the drone strikes are not terribly accurate and that scores of civilians have been wiped out by drone warfare. “At least 265 of up to 482 people who the U.S. intelligence reports estimated the CIA killed during a 12-month period ending in September 2011 were not senior al Qaida leaders but instead were ‘assessed’ as Afghan, Pakistani and unknown extremists. Drones killed only six top al Qaida leaders in those months, according to news media accounts.”

The intelligence documents reviewed by McClatchy, Landay notes, “do not reflect the entirety of the killings associated with U.S. drone attacks in Pakistan, which independent reports estimate at between 1,900 and 3,581.”

Constitutional law scholar David Cole, in a piece for NYR blog, says drone “technology has made it possible to use lethal force in many situations where we could not or would not have considered it in the past. Unlike conventional military operations, drone attacks require no ‘boots on the ground,’ and therefore do not pose a risk to American lives.” But such technology, Cole continues is radically reducing “the disincentives to killing. And that may well make a nation prone to use military force before it is truly a last resort.” (The ACS Chicago Lawyer Chapter and the ACS law student chapter at Chicago-Kent College of Law are hosting an event tonight on targeted killings at which Cole will provide featured remarks.)

John O. Brennan, the CIA director and former counterterrorism adviser to Obama, has acknowledged the drone warfare program and continues to insist that it is being operated within legal boundaries and without violating human rights. Shane reported Brennan maintains that the administration carries an “unqualified preference” to “only undertake lethal force when we believe that capturing the individual is not feasible.”

The evidence continuing to surface surrounding the administration’s drone warfare policies, however, seriously undercut Brennan’s claim. Hopefully the Senate subcommittee will highlight action to be taken to provide much needed oversight of the Obama administration’s escalation of drone warfare. As it stands now, it appears the president needs help in holding to his early promise of vigilantly protecting fundamental values while waging counterterrorism efforts.

* Editor's Note: The Subcommittee hearing has been postponed until April 23.