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.