Holder’s Drone Memo: More Questions Than Answers

In advance of the President’s counterterrorism speech today at the National Defense University in Washington, D.C. – where it’s anticipated he will lay out new restrictions for America’s drone programs - Attorney General Eric Holder released a 5-page memo disclosing that, since 2009, America has assassinated four of its own citizens in “counterterrorism operations” - more specifically, via drone strike.

Unfortunately, the memo’s admissions create more questions than answers.

1) The memo asserts that targeting and killing of citizens can only happen outside the U.S., tacitly readdressing the concerns Senator Rand Paul addressed in his 13 hour filibuster. But the right to due process is not contingent on geography; like it or not, these rights extend to citizens overseas. The fundamental assertion in the memo is, as Spencer Ackerman points out, that “Holder defended killing Americans the administration believes to be members of al-Qaeda without due process, a constitutionally questionable proposition.”

2) The memo explains in detail why one of those targets, Anwar Al-Awlaki, was targeted. The memo admits the other three were “not specifically targeted.” What does that mean? Were these accidents? Or were these like police-car-chases-gone-bad? I don’t think “25% of the time, drones work every time” is a sufficient policy.

What will likely result from the memo is an overhaul of “signature strikes.” As initially reported by the New York Times:

“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.”

Reining in this criteria could bring about a restructuring of the Administration’s “disposition matrix,” the “next-generation capture/kill list” the Administration intends on making a permanent feature of counterterrorism operations, but that is yet to be seen.

3) As stated, the memo notes four deaths since 2009. In February, at the Senate Intelligence Committee’s confirmation hearing of John Brennan as CIA Director, I also noted (here at United Liberty) that four Americans had been killed by drone strike overseas. Problem is, I didn’t count Jude Kenan Mohammad – not an officially confirmed death until now – but I did count one person not on the list: Kamal Derwish, killed in 2002. That raises an eerie question: Was anyone else was left off the list?

4) The most disturbing of these deaths is that of Anwar Al-Awlaki’s son, Abdulrahman, who was dining outside with friends when he was assassinated, two weeks after his father had been killed. Abdulrahman has never been accused of wrong-doing. An Administration official stated Abdulrahman was not being targeted, but was “in the wrong place at the wrong time,” and that “the U.S. government did not know that Mr. Awlaki’s son was there” before the airstrike was ordered, implying complicity with assassinating children that are not U.S. citizens.

Lest we forget what former White House Press Secretary Robert Gibbs told a gaggle of reporters said about Abdulrahman’s death in October 2012:

“I would suggest that you should have a far more responsible father if they are truly concerned about the well-being of their children. I don’t think becoming an al-Qaeda jihadist terrorist is the best way to go about doing your business.”

Abdulrahman’s death warranted one mention in Holder’s memo, which did nothing to answer the question: Who, if anybody, was actually being targeted when Abdulrahman was killed? Remember, the intelligence we trust to properly assign drone targets is the intelligence we trust for carrying out those strikes.

5) Holder’s memo also does nothing to clarify what level of “imminence” is required to be killed by drone strike. Indeed, in the February Department of Justice White Paper which laid out the general rules for assassinating American citizens with drones, via a presidential “kill list” hinted at a ”broader concept of imminence.

In his February confirmation hearing before the Senate Intelligence Committee, John Brennan expanded on what that “broader concept” might mean, illuminating the Minority Report-style criteria we maintain for drone strikes:

“Our judicial tradition is that a court of law is used to determine one’s guilt or innocence for past actions, which is very different from the decisions that are made on the battlefield, as well as actions that are taken against terrorists. Because none of those actions are to determine past guilt for those actions that they took. The decisions that are made are to take action so that we prevent a future action, so we protect American lives.”

That American citizens are being killed for potential crimes is an oft-overlooked egregious affront to due process. Holder’s memo maintains the status quo on this issue.

6) It is still unclear what level of efficacy drone strikes have had in the broader war on terror. Put another way: Are we sacrificing long-term security for short-term gains? U.S. Naval Postgraduate School professor Bradley Jay Strawser told the New York Times:

“Drone warfare, in abstract terms, seems to be a moral improvement from alternative forms of aerial combat… [Drones strikes] are more accurate and allow drone pilots to be more capable at discriminating between combatants and civilians than alternative means. However, it is quite possible that current actual drone warfare is doing more harm than good. If so, this is because of the way this weapon is being used, not drones themselves. In particular, the U.S. policy of targeted killings and the fear that at least some of these killings are done not as acts of legitimate necessary defense against an imminent threat, but are instead simply more expedient or easier to carry out than capturing suspected terrorists.”

Additionally, Jeremy Scahill reports the strikes killing children in Yemen have reportedly helped al Qaeda “recruit thousands.” Why should we maintain such a self-defeating program?

7) Questions remain as to what the CIA is currently doing and what the Pentagon should be doing. Why aren’t all military operations carried out by the Pentagon? While a drone program would enjoy a similar level of secrecy if moved from the CIA to the Pentagon, Congress would be given more oversight in the budget approval process, thereby returning War Powers to Congress, where they belong.

Finally, it’s admittedly too easy to blame the drones; drones are as much to blame for extrajudicial assassinations as Hellfire missiles are.  The problem is the legal framework that is trampling Americans’ right to due process and exacerbating our national security issues abroad while killing hundreds of innocent people. Hopefully Obama’s speech today will help clear up some of these unanswered questions.


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