(photo: Barack Obama)

Described by the New York Times as a “sloppy strike,” on December 17, 2009, a US drone launched a cruise missile carrying cluster bombs and hit al-Majalah in the Abyan province of southern Yemen. The attack targeted Saleh Mohammed al-Anbouri, who allegedly had been bringing people from different countries to train them to become members of al Qaeda. It did not only kill Anbouri but also forty-one civilians including twenty-two children and a dozen women (five who happened to be pregnant).

The attack left a “grisly scene,” according to a commission of inquiry into the attack that was setup by the Yemeni parliament. Victims had to be buried in “communal graves” because the bodies had been completely torn to pieces and were unrecognizable. Tribal leader, Sheik Saleh Ben Fareed, told journalist Jeremy Scahill that if somebody had a weak heart, they would have collapsed because goats and sheep were all over. So, too, were heads of those who had been killed. One could see the remains of children and nobody could tell which meat belonged to animals or human beings.

It is this kind of strike, the very first strike in Yemen under President Barack Obama, which Obama and his administration have sought to prevent by being more precise in their executions of terror suspects through the use of drones.

The move toward a more “pragmatic” approach to counter-terrorism that involves the use of drones is the focus of a wide-ranging story by Jo Becker and Scott Shane of the New York Times. It also is the focus of an excerpt published by Newsweek from Daniel Klaidman’s new book Kill or Capture: The War on Terror and the Soul of the Obama Presidency.

Both stories reveal key tenets of the Obama administration’s counterterrorism policy: (1) a policy seen as violating the law can be made to seem legal by shaping the law to give it proper justification (2) if it seems illegal, rewrite terminology so that the policy is now legal (3) anyone killed is likely a militant or terrorist because the US killed them (4) the president must have many options available when dealing with terror suspects so that he can appear to be pragmatic; (5) the president is willing to sign off personally on the executions because he believes he is taking a measured approach to ordering the killings and it is the moral thing to do.

The first tenet is already known because of speeches given by Attorney General Eric Holder and now-“Assassination Czar” John Brennan. The administration has sought to normalize a drone policy that is an affront to both domestic and international law because it lacks both accountability and transparency. They have built up a program that centers on extrajudicial and preemptive executions and maintained that these executions should not be subject to any sort of judicial process.

Obama’s legal expertise or experience as a constitutional lawyer, as mentioned in the New York Times story, is used to “enable” and “not constrain” the campaign against al Qaeda. For example, the execution of American cleric Anwar Al-Awlaki was “an easy one” for Obama. This is not dissimilar from the way that Bush lawyers such as Jay Bybee, William J. Haynes or John Yoo used law to craft the legal justification for “enhanced interrogation techniques” or torture.

Second, the terms can simply be rewritten. “The Justice Department’s Office of Legal Counsel, according to the New York Times, prepared a lengthy memo justifying that extraordinary step, asserting that while the Fifth Amendment’s guarantee of due process applied, it could be satisfied by internal deliberations in the executive branch.”

Though this makes the president and his staff judge, jury and executioner and defies all traditional understanding of the term due process, the “more than 100 members of the government’s sprawling national security apparatus gather” about every week. They “pore over terrorist suspects’ biographies and recommend to the president who should be the next to die.” They consider “the infeasibility of capture, the certainty of the intelligence base, the imminence of the threat.” They look through PowerPoint slides with names, aliases and life stories of these suspects and carefully make recommendations in a process that the president considers to be “judicious” enough to constitute “due process” for these suspects.

(This is also how policies of rendition, military commissions and indefinite detention have been continued. The terminology is refined to be more legal than it was when President George W. Bush was president. A “new definition” of “detention facility” that excluded “places used to hold people ‘on a short-term, transitory basis’” was established to solve the problem of having to explain to the public why there were still terror suspects being held in CIA custody abroad, even though Obama had ordered all overseas “black” prison sites to be closed.)

Third, anyone nearby a terrorist is likely a terrorist. This is perhaps one of the most significant parts of the New York Times story. President Obama uses a method for counting civilian casualties that does not “box him in.” All “military age males in a strike zone” that are found dead are considered “combatants” unless “there is explicit intelligence posthumously proving them innocent.”

The method is further explained:

Counterterrorism officials insist this approach is one of simple logic: people in an area of known terrorist activity, or found with a top Qaeda operative, are probably up to no good. “Al Qaeda is an insular, paranoid organization — innocent neighbors don’t hitchhike rides in the back of trucks headed for the border with guns and bombs,” said one official, who requested anonymity to speak about what is still a classified program.

This counting method may partly explain the official claims of extraordinarily low collateral deaths. In a speech last year Mr. Brennan, Mr. Obama’s trusted adviser, said that not a single noncombatant had been killed in a year of strikes. And in a recent interview, a senior administration official said that the number of civilians killed in drone strikes in Pakistan under Mr. Obama was in the “single digits” — and that independent counts of scores or hundreds of civilian deaths unwittingly draw on false propaganda claims by militants.

The Bureau of Investigative Journalism (TBIJ) has previously exposed this “method” of counting. TBIJ reacts in an analysis, “The revelation helps explain the wide variation between credible reports of civilian deaths in Pakistan by the Bureau and others, and the CIA’s claims that it had killed no ‘non-combatants’ between May 2010 and September 2011 – and possibly later.”

Fourth, the president must be able to have his options open. If all military-age males are not likely “militants,” that restricts the number of strikes he can order on terror suspects so he has to use this method to count casualties. Additionally, the president won’t order the execution until he is in the moment. When the president was going after Anwar Al-Awlaki, according to Klaideman, he told his staff, “If there was a clear shot at the terrorist leader, even one that risked civilian deaths, he wanted to be advised of it. ‘Bring it to me and let me decide in the reality of the moment rather than in the abstract.’”

The president is “comfortable” with using lethal force on human beings. But, unlike President George W. Bush, he won’t just let anybody be waterboarded or subjected to rendition or denied habeas corpus or killed away from the battlefield. He wants to make these kinds of decisions on a case-by-case basis.

It is Obama’s confidence that he is taking a measured approach that weighs all the options that gives him the confidence to be executioner-in-chief. He is not merciless. It is like Russian roulette. Sometimes strikes will be waived off because there are family members. Sometimes, like in the case of Baitullah Mehsud, strikes will not be called off because the US can take the shot and no longer have to worry about a target.

The key is that all of this gives President Barack Obama the cover to argue that it is not dragging the US into regional conflicts. By all accounts, the Obama administration is now waging a war against people they can consider to be a part of an al Qaeda affiliated group because, as one unnamed senior official put it, “these people are murderous thugs, and we are not going to stand idly by and allow these massacres to take place.” But, what happens as mission creep occurs and the administration begins to strike at people who aren’t so-called al Qaeda militants but are actually rebels challenging the client regime of Abd Rabbuh Mansur Al-Hadi, the recently “elected” president who managed to win the presidency largely because nobody was running against him.  (I expect this to be part of the focus of the FRONTLINE documentary on Al Qaeda in Yemen that is airing tonight.)

The use of drones greatly exacerbates the problem of terrorism in Pakistan. As Dr. Amna Buttar, a Pakistan parliamentary member describes:

In Lahore alone, I think there have been more than 30 terrorist-mediated bombings. And it happens – there is a drone attack and then there is a terrorist-mediated attack. Our markets, our hotels, our restaurants, our schools, our railway stations. Just two weeks ago there was an attack on railway station. We have to think of these victims. We have to think of 190 million whose lives have been made living hell because of this war on terror and these terror attacks and these remote-controlled killings.

Neither reality matters to the Obama administration because it is convinced that the “war on terrorism” is right and just and the killing of people must be carried out whenever the administration decides to kill people so that “terrorism” can be effectively fought. And, the expanded use of flying killer robots is supposedly a departure from the muscular and unilateral cowboy foreign policy of George W. Bush, as it is more precise and does not involve invading countries. This is why there is a scant amount of outrage from Democratic Party supporters/voters. In reality, however, what Obama is doing is not much different.

The use of drones has a destabilizing effect on countries just like military occupations. The presence of drones and the inevitable killing of civilians push people to fight back against the United States. The drones target the same group of people with the same flawed intelligence that Bush used to render, torture and imprison hundreds of innocent people in Guantanamo Bay. It all still relies on the doctrine of preemption — this idea that if there is a 1% chance that someone poses a threat that person should be targeted.

The likelihood of people who are innocent being eliminated is amplified by the fact that it is the president, who is making the decision. His credibility, his integrity and his re-election and ability to get things done is dependent on not making a mistake and letting someone go that just might pose a threat later on down the road. Someone with that sort of emotional stake in deciding whether a suspect is executed should not be considered a fair arbiter of justice.

In that respect, the preemptive drone warfare in Yemen, Pakistan and Somalia is just as bad as the preemptive invasion of Iraq. The people of Iraq were violated all at once when they became an occupied country. They lived in fear of being bombed or subjected to night raids where they would be sent to a prison and tortured. They lived in fear of suicide bombers that wanted to attack US personnel. They still live in fear because a large amount of US personnel remains in the country.

Fast forward. Now, under Obama the people of Yemen and Pakistan face similar terror.  The key difference is that US soldiers do not come in the night to violate their home and take family members away. They also cannot get used to a US military presence. Instead, they are reminded that the US is conducting operations inside their country every time another compound is hit and people are killed. They also hear robots buzzing around in the air searching for a target, which fuels fear over whether they might be next because who knows what it takes exactly for one to end up on a list of people the US government thinks might be associated or linked to a group that is thought to be connected to Al Qaeda.