Drone Strikes & Due Process: A Legal Analysis of Targeted Killing

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“Whatever disagreement there may be as to the scope of the phrase ‘due process of law,’ there can be no doubt that it embraces the fundamental conception of a fair trial, with opportunity to be heard.”
—Justice Oliver Wendell Holmes Jr., dissenting, Frank v. Magnum, 1915

When President Obama authorized a drone strike in Yemen that targeted and killed US citizen Anwar al-Awlaki, the The New York Times (NYT) described the decision as “extremely rare, if not unprecedented[.]” Less than two-and-a-half years after the first targeted strike against a US citizen, however, and Obama appears poised to make that decision once again. Abdullah al-Shami, the nickname of an otherwise anonymous man alleged to be a top Al-Qaeda terrorist living in Pakistan, is the latest US citizen in the Administration’s cross-hairs. As Glenn Greenwald has written, these strikes against US citizens are being executed “[w]ithout any due process, transparency or oversight[.]” This week’s NYT article by Matt Mazzetti and Eric Schmitt about the potential killing of al-Shami—entitled “U.S. Militant, Hidden, Spurs Drone Debate”—disregard Greenwald’s concerns and focus on an entirely different debate. By avoiding questions about the constitutionality or transparency of drone strikes targeting US citizens, however, the NYT implicitly suggests those issues don’t matter. Here at the Fourth Estate Watch (FEW), we believe they do.

Mazzetti and Schmitt are correct when they state that the decision surrounding al-Shami’s fate “encapsulates some of the thorniest questions raised by the targeted killing program that Mr. Obama has embraced as president,” but their article somehow manages to miss all of them. Crucially, for example, the authors ask “under what circumstances the government may kill American citizens without a trial,” instead of asking whether the government can kill American citizens without a trial. The second question is essential because the Fifth Amendment states that “no person” shall be “deprived of life, liberty, or property, without due process of law,” which generally requires that the accused be afforded the right to examine the evidence against him, the right to counsel, the right to examine witnesses, the right to have his case heard before an impartial tribunal, etc. Under the Obama Administration’s targeted killing program, by contrast, you can be “deprived of life” after a group of anonymous government officials decide to authorize a drone strike against you (which is what happened to al-Awlaki). How, then, can President Obama’s targeted killing of US citizens be said to square with the Fifth Amendment? In the case of al-Shami, the Obama Administration hasn’t even disclosed his real name, notwithstanding Obama’s previous promise of an “unprecedented level of openness in Government.” How can the government be “open” in any meaningful sense if it can authorize a drone strike against a US citizen abroad in near-total secrecy?

Instead of addressing the constitutionality of targeted killings of US citizens, though, the NYT prefers to ask “whether the CIA or the Pentagon ought to be the dominant agency running America’s secret wars[.]” That strikes us as a secondary concern, something far less critical than questions relating to overall credibility and accountability. One of the anonymous U.S. officials interviewed for the article, for example, asserts that “[w]e have clear and convincing evidence that [al-Shami is] involved in the production and distribution of I.E.D.’s” without offering anything concrete in support. Given that the NYT has previously apologized for part of its reporting in the lead-up to the invasion of Iraq, stating that US government claims about Saddam Hussein were “allowed to stand unchallenged,” one wonders why the paper published the official’s comment about al-Shami without asking for elaboration or corroboration. In 2004 the NYT lamented that “we wish we had been more aggressive in re-examining the claims” made by the US government, yet in 2014 the paper seems unable to apply that lesson to the targeted killing of US citizens.

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The mistake may have far-reaching implications. If and until journalists begin to question the government aggressively regarding the constitutional concerns over the targeted killing of US citizens, this once-rare event will only proliferate. After all, the NYT itself tells us the debate on whether to kill al-Shami “comes less than a year after Mr. Obama announced new guidelines to tighten the rules for carrying out lethal drone operations” (emphasis ours). Let’s keep in mind that what we are talking about is the US government’s alleged authority to kill a US citizen without offering that person any opportunity to examine evidence, consult counsel, or present their case. That is an extreme proposition, and that it may soon happen twice in under three years should startle everyone. And not only do Obama’s new guidelines not appear to have tightened anything at all, we don’t even know what those guidelines are since they are kept hidden from public scrutiny.

With the targeted killing of US citizens wrapped in so much secrecy, it is perhaps unsurprising that the NYT concludes that “[i]t is unclear what Mr. Obama’s position is on whether Mr. Shami should be targeted.” But perhaps the President need not speak for us to know his position. Given that he has already authorized the targeted killing of one US citizen (al-Awlaki) and that he is currently weighing the decision whether to do so again, it is clear that the President believes the US government can satisfy the Due Process clause of the Fifth Amendment by unilaterally, and in secret, deciding whether a US citizen abroad should be placed on a list for targeted killing. That tells us everything we need to know.

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On Targeted Killing: The Establishment Media & Administration Officials are One and the Same

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Today’s editorial in the Chicago Tribune, which proclaims that the U.S. government’s targeted killing program “needs to keep flying,” is perhaps the worst editorial on the subject we have ever read. Since the editorial raises a number of arguments that are consistently raised by those who support “death by unreliable metadata,” to quote Glenn Greenwald and Jeremy Scahill’s memorable phrase to describe drone strikes, here at the Fourth Estate Watch (FEW) we wanted to take the opportunity to debunk some of these baseless claims, many of which have been advocated by Administration officials as well.

In the context of the recent report from the Associated Press that President Obama is again weighing the decision whether to kill a U.S. citizen abroad, the Tribune declares: “we know [that] U.S. government officials have been debating since last summer whether to authorize a strike against the man. What’s taking so long? If he poses an imminent threat…” (emphasis ours). Clearly impatient that blood has not yet been drawn in the matter, the Tribune blindly accepts the Administration’s assertion that the man in question poses an “imminent threat.” But based on what evidence, and what definition of “imminent”? The AP article itself was based on statements from anonymous U.S. officials, who should not be viewed as having credibility on these matters as Dan Froomkin’s latest article in The Intercept shows us that “[t]he White House’s record of truth-telling when it comes to drone warfare is appalling.” One wonders what media organizations are doing, then, if they are content to repeat anonymous government claims without even the slightest attempt to square them with existing evidence.

Caught in the matrix of the Administration’s deceit and deception regarding the drone war, then, the Tribune appears happy to take the blue pill when it describes targeted killing as “extraordinarily effective” and “[o]ne of America’s most effective anti-terrorist programs” (emphasis ours). But that makes no sense, unless an “effective” anti-terrorist program is one that is designed to create more terrorists. As we know from Scott Shane and Jo Becker’s reporting in The New York Times, “[d]rones have replaced Guantanamo as the recruiting tool of choice for militants” (emphasis ours). Similarly, Glenn Greenwald has extensively documented how those engaged in attacks against the United States “emphatically all say the same thing: that they were motivated by the continuous, horrific violence brought by the US and its allies to the Muslim world[.]” Not to mention that civilians on the receiving end of a drone strike are often afflicted with terrible, constant psychological trauma and fear regardless of whether the drone strike is aimed at them or not. To proclaim that the targeted killing program is an effective anti-terrorist tool, as both the Tribune and Administration Officials have argued, is to engage in self-deception and a willful blindness to the facts on the ground.

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Second, the Tribune—again like the Obama Administration—treats the question of national sovereignty as somewhat of a joke, mocking Pakistan’s leaders who “have loudly denounced drone strikes as a violation of their country’s sovereignty.” Instead of offering a serious analysis on sovereignty, then, the Tribune prefers to gloss over the issue and implicitly assert that the United States government must exercise its innate authority to seek, surveil, and strike anyone in the world it deems an imminent threat. We’re not necessarily surprised by this cavalier attitude. After all, why would the Tribune want a serious discussion about sovereignty when the government itself doesn’t appear interested in that conversation?

Lastly, the Tribune argues that the U.S. should “wait until a new [Afghan] president is elected in April” in order to get the new Afghan President to sign the currently-stalled U.S.-Afghan security agreement. Readers interested in the U.S.-Afghan pact should review our previous article on the subject, but for the moment it is sufficient to note that the Tribune—and the Obama Administration—generally tend to ignore a critical provision when discussing the proposed agreement: that the U.S. demands immunity for U.S. troops as a condition of the agreement. In other words, given that U.S. soldiers in Afghanistan have been videotaped urinating on deceased Afghanis, have killed civilians in numerous instances, and have sent drone strikes to various Afghan villages, is it any wonder the Afghan government would hesitate to sign an agreement that affords U.S. soldiers immunity? How would the people of Afghanistan benefit from this? The short answer is as follows: the only ones who benefit from such an arrangement are the ones endowed with immunity.

In sum, today’s editorial in the Tribune offers a classic example of establishment media organizations publishing material that belongs more to public relations experts than serious journalists. Virtually all of the claims in the Tribune have been advanced by Administration officials at one point or another and all are demonstrably false or exaggerated. Here at the FEW, we believe in Judge Gurfein’s observation from the Pentagon Papers case that the press must fight to preserve “the even greater values of freedom of expression and the right of the people to know.” The right of the people to know, however, is seriously and perhaps irreparably harmed when major media outlets are content writing articles and editorials packed with demonstrable lies. The public deserves better.

Government DoubleSpeak & the Permanent War Footing

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“The Party told you to reject the evidence of your eyes and ears. It was their final, most essential command.”
—George Orwell, 1984

While the phrase “War on Terror” may have dropped from official parlance years ago, the term’s core feature—a violent conflict that knows no limits in terms of time or terrain—remains part and parcel of U.S. counterterrorism policy. Here at the Fourth Estate Watch (FEW), we look at the media’s discussion of the current drone war and we’re left wondering whether the more things change, the more they stay the same. Yesterday we learned from The Intercept that NSA surveillance of electronic metadata provides the intelligence behind many drone strikes, and we also learned from the Associated Press that the Obama Administration is weighing whether to kill (another) U.S. citizen via drone strike abroad. Taken together, these reports suggest that the U.S. government’s “Assassination Program”—to borrow the phrase from Glenn Greenwald & Jeremy Scahill—has expanded beyond the realm of reason or rationality. Indeed, that the U.S. government even has such a program should shock and awe those who value national sovereignty, international law, human rights, the U.S. Constitution, and human dignity. If we are to have any hope of changing the tide of history, however, we must begin to wrestle with the reality that this war has no end. After all—how can we hope to confront what we have not yet understood?

When President Obama declared that “America must move off a permanent war footing” in his State of the Union (SOTU) address, he could only have been intentionally channeling Orwellian DoubleSpeak for that phrase to make sense. In its first of a three-part series on Obama’s counterterrorism practice of targeted killing, for example, The Washington Post (Post) details the “disposition matrix” that the Obama Administration employs to determine whether an individual in the matrix lives or dies. A critical aspect of the Post’s article emerges partway through: the targeted killing program transcends the boundaries of time. “Among senior Obama administration officials,” the Post reports, “there is a broad consensus that such [targeted killing] operations are likely to be extended at least another decade” (emphasis ours). That time frame—another decade—would drag the drone war into 2024. Some Administration officials apparently conceded 2024 may be closing the curtain too soon on targeted killings, noting there was “no clear end [in] sight” for the program, and that there are plans to “continue adding names to kill or capture lists for years” (emphasis ours). And despite presiding over the implementation and expansion of these very programs, President Obama speaks with a straight face about moving away from a permanent war footing. How can that be? Obama has also allowed the NSA to launch surveillance programs such as XKeyscore and PRISM that, like the targeted killing program, suggest the government is engaged in a conflict that is almost infinite in scope and duration.

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And don’t take our word for it. Obama’s SOTU—yes, the same speech where he spoke of moving off the war footing—itself presages a conflict on which the sun will never set. “While we’ve put al-Qaida’s core leadership on a path to defeat,” Obama intoned, “the threat has evolved as al-Qaida affiliates and other extremists take root in different parts of the world. In Yemen, Somalia, Iraq, Mali, we have to keep working with partners to disrupt and disable these networks” (emphasis ours). Numerous aspects of that sentence should immediately jump out to careful readers. Notice that while the President suggests the war is over with one hand (al-Qaida is on the “path to defeat”), with the other hand he informs us the war is not really over at all (it has grown to include “Yemen, Somalia, Iraq, Mali”). And look at the countries Obama mentioned. Mali? Do most Americans even know where that is? (Answer: West Africa). More critically, what are U.S. drones doing in Yemen and Somalia? We—and the public in general—have essentially no idea. Obama has refused to release most of the legal memos that outline his alleged authority to engage in targeted killing, and so despite having previously assured Americans “an unprecedented level of openness in Government,” we only get a glimpse into the drone war during the occasional news story such as when a U.S. drone strike converts a Yemeni wedding into a family funeral. Iraq is also mentioned as a site of extremist activity to “disrupt,” which is somewhat curious given that here is a video Obama declaring the war in Iraq is over—back in 2011. How can the war in Iraq have ended in any meaningful sense if, three years later, we are actively “working with our partners” to “disrupt and disable” extremist activity there and around the world? It seems that the way to get America off the war footing (at least in DoubleSpeak) is to kill more people. This is not hyperbole: Obama has launched eight times as many drone strikes as his predecessor and there’s no end in sight. The light at the end of the tunnel is (yet another) drone strike.

Media outlets must write candidly about a war that appears to have no end, otherwise the debates surrounding the tactics, strategy, and legality of the drone war will reverberate into an echo chamber where they will be heard only by the speakers themselves. In the interim, those running the drone war and targeted killing programs will likely continue their actions more-or-less unchanged. A good example of this phenomenon is exemplified in the AP article cited above regarding the latest U.S. citizen abroad the Obama Administration has set its sights on. The AP begins its piece noting the targeting of another American citizen “underscores the complexities of President Barack Obama’s new stricter targeting guidelines for the use of deadly drones.” Read that sentence carefully. Why didn’t the AP say, for example, that the Obama Administration’s targeting of yet another U.S. citizen underscores a drone war gone out of control? Or that it underscores the increased acceptance of the (in our view, absurd) proposition that it’s OK to kill U.S. citizens abroad without due process? If, as The New York Times has reported, the targeted killing of a U.S. citizen abroad is “extremely rare, if not unprecedented,” then wouldn’t yet another targeting of a U.S. citizen just a few years later underscore something slightly more fundamental than “the complexities” of Obama’s “stricter targeting guidelines”? Various news outlets have already reported that Obama’s new guidelines are nothing but Orwellian “pure wind,” devoid of any real substance and designed to make murder respectable. To make matters worse, the AP article itself quotes Amnesty International’s Naureen Shah for the proposition that “[s]o little has changed since last year[.]”

The evidence suggests Shah stands correct, not just for last year but for many more before that. If and until journalists understand that the U.S. government is firmly implanted on a permanent war footing—in other words, understand that Obama’s SOTU was primarily delivered in DoubleSpeak—we will continue to witness the expansion of a drone war that has no end. And if that turns out to be the case, we will find ourselves in the company of the protagonist of 1984, for as we know, “Winston could not definitely remember a time when his country had not been at war…”

The NYT on US-Afghan Security Pact: Nothing to see Here

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A recent article by David Sanger & Eric Schmitt in The New York Times (NYT) about the proposed U.S.-Afghan security pact obscures more than it informs, and as a result, the unsuspecting reader is left with a distorted view of reality. Journalism should be aimed at empowering the public through relevant information, and here at the Fourth Estate Watch (FEW) we believe in aggressive journalism that both empowers readers and holds authority to account. Below are just some of the more serious flaws in the NYT article:

  • The entire article is ostensibly devoted to the U.S.-Afghan security pact and the potential repercussions if President Obama is “forced to pull all American troops out of Afghanistan by the end of the year[.]” Afghan President Karzai is generally portrayed as something of a grouch or spoiler in the security pact negotiations, as he “delays signing the security accord and poses new demands to the United States.” Unfortunately, the article never explains why ratification of the new security pact has stalled. The reason for this is left to the reader’s imagination, since the NYT never bothers to elucidate the underlying reason for the lack of agreement aside from implicitly condemning Karzai as a tough negotiator who may be biding his time so that “he may be able to strike a better deal.”
  • The reporting by Sanger & Schmitt is unnecessarily misleading. Although the NYT doesn’t explain it, the actual reason the security pact has not been signed is because the United States demands immunity for U.S. troops as a condition of the agreement. Lesley Wroughton and Jessica Donati previously reported for Reuters that negotiations regarding the pact ended since Secretary of State Kerry and President Karzai “could not agree on the issue of legal immunity for U.S. troops.” Similarly, David Cloud wrote in the Los Angeles Times (LAT) that the pact “provides legal immunity to U.S. troops.”
  • In short, it appears a major sticking point in the security pact negotiations is that the US demands immunity for its troops. Given that U.S. soldiers in Afghanistan have been videotaped urinating on deceased Afghanis, have killed civilians in numerous instances, and have sent drone strikes to various Afghan villages, is it any wonder the Afghan government would hesitate to sign an agreement that affords U.S. soldiers immunity? How would the people of Afghanistan benefit from this?
  • Indeed, a previous piece by David Zucchino in the LAT detailing the results of a drone strike in Afghanistan—“There were pieces of my family all over the road,” according to one person—made clear that the grief and rage felt by villagers after a strike may “help explain the approval among some Afghans of President Hamid Karzai’s thus far non-negotiable demand that civilian casualties cease if he is to sign a proposed 10-year security agreement with the United States.” (emphasis ours). Readers of the NYT article, however, are left entirely unaware of the legal immunity the U.S. is demanding from Afghanistan.
  • The NYT piece also fails in aggressive, adversarial journalism since it allows a logical inconsistency to stand unchecked. David Sanger and Eric Schmitt write that, in tomorrow’s State of the Union address, President Obama “is expected to say that by the end of this year the Afghan war will be over[.]” In literally the very next sentence, however, they note that “Mr. Obama’s hope is to keep 8,000 to 12,000 troops … in Afghanistan after the NATO combat mission ends this year” (emphasis ours). How can a war be “over” if thousands of troops are expected to remain in Afghanistan?
  • Marine Corps Gen. Joseph F. Dunford Jr.—the U.S. commander in Afghanistan—plans to ask President Obama to keep 10,000 troops in the country after the year is over. Again, in what meaningful sense can a war be said to be “over” when thousands of troops will remain? The NYT never bothers to question what President Obama means by “over” or how the notion of ending a war squares with maintaining a presence of thousands of troops on the ground. Why didn’t the NYT explore these apparent inconsistencies, or at minimum raise the issue to empower their readers?
  • Lastly, the NYT engages in a bit of revisionist history when it refers to “the American decision to withdraw all its troops from Iraq” (emphasis ours). In a parallel to what’s currently happening in Iraq, the US government wanted to reach an agreement with the Iraqi government to allow some U.S. soldiers to remain in that country. As Scott Wilson and Karen DeYoung reported for The Washington Post, however, “[t]he negotiations foundered over the U.S. demand that American troops receive legal immunity for their actions[.]” (emphasis ours). In short, the US “decision to withdraw” from Iraq was, in large part, motivated by their inability to obtain immunity from U.S. soldiers in the country. It appears a similar sequence of events is playing out presently in Afghanistan, although readers of the NYT would never know it.