Jameel Jaffer - The Drone Memos: Targeted Killing, Secrecy and the Law

Also by Jameel Jaffer

Administration of Torture: A Documentary Record from Washington to Abu Ghraib and Beyond (with Amrit Singh)

2016 by American Civil Liberties Union Foundation

All rights reserved.

No part of this book may be reproduced, in any form, without written permission from the publisher.

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Published in the United States by The New Press, New York, 2016

Distributed by Perseus Distribution

LIBRARY OF CONGRESS CATALOGING-IN-PUBLICATION DATA

Names: Jaffer, Jameel, editor. | American Civil Liberties Union, sponsoring body.

Title: The drone memos: targeted killing, secrecy, and the law / edited and introduced by Jameel Jaffer.

Description: New York: The New Press, 2016.

Identifiers: LCCN 2016027796 (print) | LCCN 2016028118 (ebook) | ISBN 9781620972601 (e-book)

Subjects: LCSH: Targeted killingUnited States. | War and emergency powersUnited States. | Uninhabited combat aerial vehicles (International law) | TerrorismPreventionLaw and legislationUnited States. | BISAC: LAW / Constitutional. | POLITICAL SCIENCE / Political Freedom & Security / Terrorism. | POLITICAL SCIENCE / Political Freedom & Security / International Security.

Classification: LCC KF7225 .D76 2016 (print) | LCC KF7225 (ebook) | DDC 344.7305/32517dc23

LC record available at https://lccn.loc.gov/2016027796

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This book was set in Minion Pro and Alternate Gothic No. 2

Printed in the United States of America

10 9 8 7 6 5 4 3 2 1

I know not what answer to give you, but this, that Power always Sincerely, conscientiously, de trs bon Foi, believes itself Right. Power always thinks it has a great Soul, and vast Views, beyond the Comprehension of the Weak; and that it is doing God Service, when it is violating all his Laws.... And I may be deceived as much as any of them, when I Say, that Power must never be trusted without a Check.

John Adams to Thomas Jefferson, 1816

Remove everything that has no relevance to the story. If you say in the first chapter that there is a rifle hanging on the wall, in the second or third chapter it absolutely must go off. If its not going to be fired, it shouldnt be hanging there.

Anton Chekhov, 1887

Its basically a hit list.... The Predator [drone] is the weapon of choice, but it could also be someone putting a bullet in your head.

John Rizzo, former acting general counsel, CIA, 2011

CONTENTS

The sun had yet to rise when missiles launched by CIA drones struck a clutch of buildings and vehicles in the lower Kurram tribal agency of Pakistan, killing four or five people and injuring another. It was February 22, 2016, and the American drone campaign had entered its second decade. Over the next weeks, officials in Washington and Rome announced that the U.S. military would use the Sigonella air base in Sicily to launch strikes against targets in Libya. American strikes in Yemen killed four people driving on a road in the governorate of Shabwah and eight people in two small villages in the governorate of Abyan. A strike in Syria killed an Indian citizen believed to be a recruiter for the self-styled Islamic State, and another strike killed a suspected Islamic State fighter in northern Iraq. A particularly bloody series of drone strikes and airstrikes in Somalia incinerated some 150 suspected militants at what American officials described as a training camp for terrorists. In southeastern Afghanistan, a series of drone strikes killed twelve men in a pickup truck, two men who attempted to retrieve the bodies, and another three men who approached the area when they became worried about the others.

Over just a short period in early 2016, in other words, the United States deployed remotely piloted aircraft to carry out deadly attacks in six countries across Central and South Asia, North Africa, and the Middle East, and it announced that it had expanded its capacity to carry out attacks in a seventh. And yet with the possible exception of the strike in Somalia, which garnered news coverage because of the extraordinary death toll, the drone attacks did not seem to spark controversy or reflection. As the 2016 presidential primaries were getting under way, sporadic and sketchy reports of strikes in remote regions of the world provided a kind of background noisea drone in a different sense of the wordto which Americans had become inured. Questions about the morality, wisdom, and lawfulness of the drone program had receded, though they had not been answered.

This book is an effort to bring those crucial questions to the fore once again. The documents collected here supply much of what is known about the legal and policy framework for the U.S. governments practice of targeted killingthe killing of suspected terrorists and militants, typically using armed drones, often away from conventional battlefieldsand collectively they set out the rules that govern drone strikes carried out by the United States today. The legal memos, white papers, and speeches presented here are also a record of official decisions that remain deeply unsettling to many people around the world, including to many Americans. A reflection of a deep transformation in American attitudes, the documents are a measure of the extent to which the perceived demands of counterterrorism are erasing rule-of-law strictures that were taken for granted only a generation ago.

Senior officials in the administration of President Barack Obama variously described drone strikes as precise, closely supervised, effective, indispensable, and even the only game in townbut what they emphasized most of all is that the drone strikes they authorized were lawful.

In this context, though, lawful had a specialized meaning. Except at the highest level of abstraction, the law of the drone campaign had not been enacted by Congress or published in the U.S. Code. No federal agency had issued regulations relating to drone strikes, and no federal court had adjudicated their legality. Obama administration officials insisted that drone strikes were lawful, but the law they invoked was their own. It was written by executive branch lawyers behind closed doors, withheld from the public and even from Congress, and shielded from judicial review.

Secret law is unsettling in any context, but it was especially so in this one. For decades the U.S. government had condemned targeted killings, characterizing them as assassinations or extrajudicial executions. On its face, the drone campaign signified a dramatic departure from that positiona departure that demanded explanation, at the very least. It was far from obvious what distinguished American drone strikes from the targeted killings the United States had historically rejected as unlawful. Nor was it clear how these targeted killings could be reconciled with international human rights law, with a decades-old executive order that bans assassinations, with the constitutional guarantee of due process, or, for that matter, with domestic laws that criminalize murder.