
Obama with advisors in the Oval Office on July 27, 2010 (Photo by The White House)
The administration of United States President Barack Obama feared they might lose re-election and in the weeks before Election Day began to develop a set of rules for using drones, according to a New York Times report by Scott Shane.
An unnamed official with the Obama administration told Shane:
…“There was concern that the levers might no longer be in our hands,” said one official, speaking on condition of anonymity. With a continuing debate about the proper limits of drone strikes, Mr. Obama did not want to leave an “amorphous” program to his successor, the official said. The effort, which would have been rushed to completion by January had Mr. Romney won, will now be finished at a more leisurely pace, the official said.
The revelation is remarkable in that it shows GOP presidential candidate Mitt Romney—not the fact that the power to extrajudicially kill people suspected of committing or having ties to terrorism was being claimed—was why the administration began to have increased concerns over drone warfare.
A video had circulated just after the Democratic National Convention in Charlotte, North Carolina, where John Cook was stopping Democrats to ask if Romney could be trusted with the kill list. It was a shrewd way to expose how they had given Obama a pass to normalize targeted killings when they would not like the program if a Republican had the power. Lanny Davis, who served as special counsel to President Bill Clinton, said, “I’m not regarding that question as a serious questions so I’m not interested in your interview.” Sen. Charles Schumer answered, “I don’t think he’ll do that, but I think there are a lot of other issues we shouldn’t trust him on.” Gloria Allred, a lawyer known for taking women’s rights cases, did not answer the question but in a follow-up stated she would trust Obama “one thousand percent” with the decision to extrajudicially assassinate people on the kill list.
In another video, Luke Rudkowski of We Are Change demonstrated this with Obama supporters. He asked them what they thought about Romney expanding the use of a secret kill list (and other national security policies). One supporter said that sounded “unconstitutional.” One said Romney was watching “too much Terminator.” Another said, “Coming from a country that used to be a dictatorship, I don’t really want to go back to that.” Rudkowski told them that Romney would “drone bomb countries” where the US had not declared war. Supporters said, “Of course, he did,” “That’s incredible,” and “Crazy.” One young woman suggested Romney was trying to “appeal to the war hawks.” At the end of the video, Rudkowski told the same supporters he had really been describing Obama’s kill list policy (and other policies) and each supporter went into overdrive trying to explain away their support for Obama.
Back in May, Shane and Jo Becker published a major story on the secret kill list, which contained details on how Obama had become “immersed” in deciding who to order killed. The Times report described him as a “student of writings on war by Augustine and Thomas Aquinas.” They suggested he was someone, who believed “that he should take moral responsibility for such actions. And he knows that bad strikes can tarnish America’s image and derail diplomacy.”
The lack of outrage or concern over the institutionalization of a “kill list” for drone operations, with policies that include dystopian-sounding mechanisms like a “disposition matrix,” has largely been due to the belief in the individual judgment of Obama. It may be unlawfully or illegitimately used, however, Democrats and Obama supporters have convinced themselves drone program is not likely to be employed improperly by Obama, even though the program killed a sixteen year-old who once lived in Denver, Colorado, and had absolutely no involvement in plans or plots to commit terrorism. (For more background on the development of a targeted killing program during Obama’s first term, go here.)
It is not like the administration had been preparing throughout Obama’s first term to establish these “rules” either. It is not clear from the story that they ever completed the establishment of a set of rules. Presumably, if Romney had won, officials would have scrambled to setup some kind of framework or architecture that Romney would have been beholden to when he took office. Republicans would have cried out against the move when they found out about it from Romney advisors. And the “rules” may have been poor or woefully inadequate because they had been created as a way to provide cover for the administration so the drone program would not come back to haunt former administration officials during a Romney presidency.
Additionally, Shane suggests Obama had indicated he would setup a “legal architecture” during his interview with Jon Stewart on “The Daily Show”:
Mr. Obama himself, in little-noticed remarks, has acknowledged that the legal governance of drone strikes is still a work in progress.
“One of the things we’ve got to do is put a legal architecture in place, and we need Congressional help in order to do that, to make sure that not only am I reined in but any president’s reined in terms of some of the decisions that we’re making,” Mr. Obama told Jon Stewart in an appearance on “The Daily Show” on Oct. 18.
One must presume one of the two officials informed Shane he had already said something about establishing an architecture for drone use, which led Shane to go look for his statement, because at no point in the exchange would it have been evident Obama was specifically referring to drone policy.
As I covered, Stewart said to Obama, “Here’s a little game that I like to call, “Still or No?” Before when you ran, you had things you thought, I wonder if four years as president has in any way changed that. Ok, first one is we don’t have to trade our values and ideals for our security.” Obama answered, “We don’t.” Stewart quickly followed up, “Do you still feel that way?”
OBAMA: We don’t. There’s some things that we haven’t gotten done. I still want to close Guantanamo. We haven’t been able to get that through Congress. (applause) One of the things we got to do is put a legal architecture in place and we need congressional help to do that, to make sure that not only am I reined in but any president is reined in terms of some of the decisions that we’re making.
Now, there are some tough trade-offs. I mean, there are times where there are bad folks somewhere on the other side of the world and you got to make a call and it’s not optimal. But, when you look at our track record, what we’ve been able to do is to say we ended the war in Iraq. We’re winding down the war in Afghanistan. We’ve gone after Al Qaeda and its leadership. It’s true that Al Qaeda is still active, at least sort of remnants of it are staging in northern Africa and the Middle East and sometimes you’ve got to make some tough calls, but you can do that in a way that’s consistent with international law and American law. [emphasis added]
It appeared Obama was suggesting that the targeting of individuals in Al Qaeda and those tied had required some scenarios where there was possible danger but it had been done “consistent with international law and American law.” Re-contextualized after Shane’s report, it could be interpreted as Obama admitting at some points the drone program has violated international law and American law and that is why a “legal architecture” should be setup.
There are no additional details in the story by Shane so it is impossible to know right now what the administration is doing to establish “rules.” They may move slowly and establish rules one year or two years into Obama’s second term. When they are established, civil liberties and human rights advocates are not likely to find out about them. If they are created internally in the Executive Branch without Congress’ involvement and/or issued as part of a secret presidential directive (like the recent directive on cybersecurity), the public will not see any of the “rules.”
Already, the Obama administration has chosen to keep a legal memo secret that lays out the justification for ordering terror suspects killed overseas. Groups have pushed for the release. The American Civil Liberties Union (ACLU) and Center for Constitutional Rights (CCR) and the Times have filed Freedom of Information Act (FOIA) lawsuits demanding access to the memo and any other legal memos used to justify or create a basis for the targeted killing program.
The idea of a “legal architecture” should make one leery of the fact that it could be entirely setup in the purview of the Executive Branch. Decisions on who to kill should, at minimum, be argued before a judge in a court of law before they can be carried out. A real debate on that should be had in addition to any discussion on the need for transparency.
Finally, Shane must be challenged over the data on drones, which he used in his report. His story relied on numbers from the Long War Journal, which has been proven to have flawed statistics on the drone war. A human rights clinic at Columbia Law University concluded the Long War Journal and New America Foundation had data that showed a lower number of reported deaths and civilian deaths. The clinic expressed concern over how news organizations had relied on this data and concluded, “Exclusive or heavy reliance on the casualty counts of these two organizations is not appropriate because of the significant methodological flaws we identify.”
It found the Bureau of Investigative Journalism’s count of civilian casualties to be far more accurate. Shane cited Long War Journal figures that find “some 2,500 people” have been killed. The Bureau of Investigative Journalism’s figures indicate more than 3,000 have likely been killed.
In future stories, the Times should have to justify using the Long War Journal figures over the figures delineated by the Bureau of Investigative Journalism, as they are demonstrably flawed and incomplete.



22 Comments

Thank you, Kevin.
A “legal architecture” emerging solely from the Executive ought well be concerning, not merely to the “average” citizen or to the ACLU, but very specifically to the Judicial and the Congressional “branches” of government.
The current Congress and Federal Courts may well not wish to “intrude”, having been “convinced” that neither has any “right” of oversight or determination … Yet that might well not remain the case forever, “looking forward”, and it would be wise of these two “lesser branches” to revisit their actual responsibilities regarding the waging of war and the determination of what, actually, and quite precisely, constitutes the Rule of Law, domestically AND internationally.
The present “drift” does not offer any reassurance to the many, nor any guidance for the executive as regards what actually constitutes the Rule of Law, domestically or internationally … and frankly, it is a vacuum that an ever-expansive executive seems inclined to fill as it, alone, sees fit.
This is a recipe for full-blown tyranny, and the complacency of the “fourth estate”, nay even its willingness to propagandize in service to the executive suggests that many, even as the interview above makes clear, do not have the slightest of clues as to what is actually already going on or has long been achieved, in terms of the destruction of due process and the desperate need of actual, functioning checks and balances within the higher reaches of government …
DW
The lack of a written set of rules for drone use is telling, it shows just how unrestrained this regime is in it’s use of executive power. The idea that they might be held responsible for abuse of power by a new regime is their only concern. This is truly the rule of man over the rule of law.
I understand the importance of accurate body counts but this numbers argument does seem to dehumanize those who are dying. We have become so desensitized to the human suffering we inflict on others that the only accepted way to discuss it is the sanitary body count, like humans were only animals to be tallied like a business account.
And the of course you have the response of Debbie Wasserman-Schultz when confronted by a reporter on, just this issue, of whether Romney could be trusted with the kill list; she feigns (?) total ignorance of the kill list and brusquely huffs off.
http://www.guardian.co.uk/commentisfree/2012/oct/20/wasserman-schultz-kill-list (video embedded in Glenn G story)
One wonders what her imperial highness would answer, if at all, to the question ‘should there be a kill list?’
I marvel to remember the early days of Obama’s term when the media would speculate whether he could be hard enough to order actions that might result in death on the battlefield. Whether this sensitive, Nobel prize winning, war-escalating, Constitution-teaching, doting daddy could find it in himself to pull the trigger — and whether he could handle the outcome.
We certainly have the answers, if the questions ever had any basis in anything but one side of the well-tempered myth of the wunderkind Obama.
Yeah, better paper it over with a legal architecture alright. Never know what those rights-obsessed historians of the future might think elsewise.
But you know that is not the point. I’m calling out inaccuracy in reporting.
A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear drones shall not be infringed.
There is existing institutionalization related to a kill list. It’s called the US Constitution plus amendments and the US Court System. And it already specifies a procedure. The thing is, if the Obama administration institutionalizes the kill list to make its current procedures formal and the rubber stamp conservative courts stand behind that presidential power, it can no longer be considered “extrajudicial”. Now, there’s where familiarity with constitutional law comes in right handy.
You have it already, just call it experimental aircraft. FAA will be interested in whether you can fly it safely. Arduino is ready when you are.
And this is all further proof as to why, even before his first election in 2008, there were so many concerns about Obama’s reliance on his personal judgment (and that of his advisers). There is no better example of the importance in the ideal that we are a government of laws, and not of men. Shane’s article presents the efforts as an attempt to “codify” what had otherwise admittedly been ad hoc rules, by their nature subject to alteration by the whim of the man in the Oval Office. But any rulebook drawn up by the Executive Branch is not a codification in any true sense of the word, as it can be revised or tossed out entirely whenever it is deemed convenient to do so. This, indeed, is a feature of tyrannies, even those that outwardly have the trappings of a democracy.
It is hard to see how we, as a people, will be able to constrain these powers and their misuse at any time in the foreseeable future. And with drones expanding to use by other countries, it’s only a matter of time before we relegate to ourselves and our supposed special rulebook the near-exclusive right to deploy drones anywhere we determine a threat exists. Hello, American exceptionalism, yet again.
What is so alarming about the kill list is that we think that this is the only time the US has done this. Up until Ford issued an executive order banning assassinations, the US has in the past executed so called “enemies.” One great thing about this day and age is that we are demanding sunlight on the list.
The HUGE mistake the US made was to kill two American citizens without any public due process. I believe that if the two Americans were alive today, the intensity towards restraining this affront to our civil liberties would be an order of magnitude less.
My impression is that the administration already thinks the killings, by drones or otherwise, are legal, maybe under the AUMF, (it’s us sticklers who think it’s not) — they surely wouldn’t EVER admit to it’s being not legal. The extra-judicial part is just nitpicking what’s already legal they would say. The architecture part simply fleshes out internal procedures. Whether they would have the force of law, that may be another question. But as to the “legality”, methinks that memo already exists.
So there may be at least two questions: extrajudicial killing under US law(particularly of US citizens); and use of drones under international law. Here’s an article that deals primarily with the international law aspect.
http://www.cfr.org/counterterrorism/targeted-killings/p9627
As to the international aspects, a government that thumbs it’s nose at torture — clearly a violation of international law — will have no problem with rationales for drones.
I wasn’t being critical of your work Kevin i was trying to make another point that i think may be part of the reason we are losing the debate over drones and our foreign policy in general.
what is particularly disturbing is that obama seems not to know the next president will make his own rules, siting war powers and using both bush and obama as precedent setters
so it doesn’t matter what rules obama had, they would be gone in less then the time it takes to look at your watch
I think it is a good point. Your concern is valid. I do not like the idea of merely calling for transparency for drones, as if that would be a remedy for fact that it operates with very little oversight and outside the purview of the rule of law. Transparency would only serve to further normalize operations. So, after we had more information on how it worked, we would still have to challenge the kill list itself.
Which is not to say that we should not be for transparency but that we need to have multiple objectives in mind for reining in executive power.
Kevin, what you are challenging is US Imperial Power and drones are just a minor aspect of that. Uncovering the not so secret wars is important but the shame is that so few seem to care or actually support the madness.
With his expanded ability to play 007, I wonder if he’s got a secondary goal:
His very own landspeeder before he leaves office…
He seems to have such a God complex, it wouldn’t surprise me in the least bit if he’s got a little Star Wars dream on the side… ugh.
I have to wonder if drones could ultimately go the way of chemical weapons.
I just don’t see how CongressCritters, Justices, etc. don’t see the likely end game. They all know history repeats itself.
But then, drones may be more akin to nukes than chemicals… or at least that’s how various national chief executives will want to view it as they’re the beneficiaries of drones.
So scary. And so clueless our elected officials seem to be that they don’t see technology getting smaller and smaller and more and more weaponized.
We’ve had kill lists for years over in the bad wars. In fact one of our home town Iraq killers, A SNIPER, was killed while killing. He was following a kill list. So it’s removing the human from the killing machinery, is it ? Or is it the sense that while there is no declaration of war for as long a I lived we always seem to be killing people for some unseen kill list.
But the cat’s out of the bag now with these flying killing machines and they will get smaller and more agile. Equipped with a spy eye to ID a suspect. I can see miniature machines armed with a .45 bullet tracking you through your house because YOU wound up on some kill list, then blowing you away leaving your family to clean up the mess.
We have failed to address the use of murder as a policy and the longer we put it off the worse it will be to deal with.
The Obama administration wasn’t willing to trust Romney with a secret kill list? That’s why we’re supposed to be a nation of laws, not of men.
Know who I trust with a secret kill list? No damn body. No damn body at all. Obama is a disaster of epic proportions. He’s turned even the Great Charter into toilet paper and used it to wipe his arse.
The Obama legacy will be kill lists, secret government, the destruction of habeas and the gutting of the already meager social contract. His (falsely) perceived liberalism has allowed him to do more harm than even Bush. And worse, it’s allowed him to institutionalize these horrors as bipartisan consensus with almost no opposition from the “he means well” crowd.
No, he doesn’t mean well. He means to serve power at the expense of humanity. And that’s exactly what he’s doing.
“This is truly the rule of man over the rule of law.”
Yes, it is. And there’s no quicker path to ruination.
Funny – not haha – the Republicans are searching so desperately for an impeachable offense (gun walking, Benghazi etc) and they have one here, but won’t take advantage because they want to keep that power for the next Rethug president.
Which is why it’s so critical to support FDL.
Jane’s chronicled Google’s destruction of the 4th Estate.
Amen.