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January 20, 2013

The Folly of Obama National Security Officials Making Their Own Drone ‘Rules’

Posted in: Drones,Secrecy,Security,US Foreign Policy,War on Terrorism

Screen shot from C-SPAN broadcast of President Barack Obama’s announcement of John Brennan’s nomination to position of CIA chief

A “rule book” for drones that the administration of President Barack Obama has been developing is reportedly near completion, according to the Washington Post. Unnamed US officials told the newspaper the CIA is set to benefit from a “major exemption” that would allow them to continue conducting CIA drone operations without having to follow the rules. But the Obama administration is fine with this exemption because John Brennan, a national counterterrorism adviser, is set to take the position of CIA chief. The articleby Greg Miller, Ellen Nakashima and Karen DeYoung appropriately declared:

The adoption of a formal guide to targeted killing marks a significant — and to some uncomfortable — milestone: the institutionalization of a practice that would have seemed anathema to many before the Sept. 11 , 2001, terrorist attacks. [emphasis added]

The “rule” book, which the Obama administration has described as a “counterterrorism ‘playbook,’” is expected to outline “the process for adding names to kill lists, the legal principles that govern when US citizens can be targeted overseas and the sequence of approvals required when the CIA or U.S. military conducts drone strikes outside war zones.” Last year, the Post reported Brennan was responsible for “compiling the rules for a war that the Obama administration believes will far outlast its own time in office, whether that is just a few more months or four more years.” He devised the dystopian-sounding “disposition matrix,” which included the “administration’s evolving procedures” for targeted killings against individuals the administration believes are members of Al Qaeda and its affiliates or at least have minimal ties. However,  the Obama administration was unable to convince the CIA that it should abide by these rules so its Pakistan operations will not have to follow the new rules.

The decision to allow the CIA strikes to continue was driven in part by concern that the window for weakening al-Qaeda and the Taliban in Pakistan is beginning to close, with plans to pull most US troops out of neighboring Afghanistan over the next two years. CIA drones are flown out of bases in Afghanistan.

“There’s a sense that you put the pedal to the metal now, especially given the impending” withdrawal, said a former US official involved in discussions of the playbook. The CIA exception is expected to be in effect for “less than two years but more than one,” the former official said, although he noted that any decision to close the carve-out “will undoubtedly be predicated on facts on the ground.” [emphasis added]

The key there is “predicated on facts on the ground.” The global War on Terrorism, as it stands currently, is a permanent war. The CIA will always be able to point to “threats” in order to prevent the agency from being subject to constraints. The history of the agency is a history of taking advantage of the reluctance of presidents to oppose its commitment to operating in the shadows outside of the law.

According to the Post, the Obama administration is convinced with “playbook” architect Brennan at the helm the exemption may be closed in one to two years. A former administration official told the newspaper, ”CIA officials are likely to be ‘quite willing, quite eager to embrace’ the playbook developed by their presumed future director…It’s his handiwork.’”

Brennan apparently agreed to the compromise “late last month during a meeting of the “‘principals committee,’ comprising of top national security officials, that was led by” him. At minimum, Brennan consented to a decision that would allow him to take over the agency and not have to follow his own rules.

The process, legal principles and information on sequence of approvals in the book of “rules” should be made public. Supposedly, it will include “requirements for White House approval of drone strikes and the involvement of multiple agencies — including the State Department — in nominating new names for kill lists.” If what the Post reports is accurate, the majority of it will be the outcome of interpretations of what is and is not legal. However, the Post story suggests Americans will continue to be subjected to secrecy and propaganda around US drone operations, as the “rules” will be classified. What the public learns about it will be what officials are willing to selectively leak to the press to convince the public to calm down and trust the Obama administration.

The government under Obama has fought efforts by the American Civil Liberties Union and New York Times to have the legal basis for the targeted killing program released under the Freedom of Information Act (FOIA). On January 2, a judge mostly dismissed both a lawsuit brought by the ACLU and the Times and concluded, “I can find no way around the thicket of laws and precedents that effectively allow the Executive Branch of our Government to proclaim as perfectly lawful certain actions that seem on their face incompatible with our Constitution and laws, while keeping the reasons for their conclusion a secret.” One should not expect any change. Should the American Civil Liberties Union (ACLU) submit a FOIA request and pursue a lawsuit to force the release of at least some of the “rules,” the Obama administration will fight to keep concealed the text of “controls” it plans to apply to its targeted killing program.

Additionally, US Senator Ron Wyden of Oregon, who serves on an intelligence committee that by law is supposed to have access to classified legal opinions on the targeted killing program, has been denied access to documents containing the legal basis for the CIA and military programs, particularly when the government may kill US citizens with drones. Would members of Congress get to read this “rule” book once complete? Or would the administration continue to obstruct access on behalf of the national security state?

And though this may be considered a “rule” book, one must dispel all illusions and ask, what happens if the “rules” are not followed? Does anyone expect the administration to do anything to any official or section of the agency that would make it impossible for that official or section to enjoy wide latitude to execute operations “necessary” to kill targets?

Think about the nature of the drone programs now: They operate completely in the dark free from the constraints of law. There is no judicial review of targets selected for execution. If the government counts the members of Al Qaeda or its affiliates killed, it does not make such counts public. If civilian deaths are counted, it does not make such counts public either. It will neither confirm or deny how many people are being assassinated extrajudicially. The officials involved know there are aspects that are completely immoral. They also are well aware that government agencies could be launching attacks with flying killer robots for the next century if the status quo remains in tact because all involved are able to operate with great impunity.

These same officials have now developed a “rule” book and the public, without being able to read it, is expected to believe that it will constrain the programs? How do we know that aspects that have stirred outrage have not been made permissible by “rules” written by individuals who have an interest in keeping the drone programs going? Does anyone else see how perverted this is that a third party did not develop the “rules”?

Those who favor more accountability and transparency may find this is a step in the right direction, but one could argue it is a proactive measure to dissuade the establishment of any process of independent judicial review and may be worse than now.

Currently, the administration can claim drone operations are somewhat new and officials are working through all issues and concerns to develop policies that make everything more legal and just. After careful deliberation, the president will retain the power to act as judge, jury and executioner. The Executive Branch will continue to pervert the concept of “due process” by arguing they engage in a fair process of reviewing intelligence to appropriately determine who to kill. There will be nothing to excuse the inhumane, immoral and lawless acts of the Obama administration in countries like Pakistan, Somalia or Yemen, but, having been further entrenched in government, it will be even more impossible for Congress, civil society organizations or US citizens to challenge the technocratic barbarism of empire.


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