Rules of Disengagement

The Drone Memos: Targeted Killing, Secrecy, and the Law edited by Jameel Jaffer. The New Press. . $28.

How quickly talk of war turns into talk of law! When a hospital is bombed in a military action, whether by the United States in Afghanistan, Russia in Syria, or Israel in Gaza, what typically draws outrage is the "war crime"—the violation of the laws of armed conflict—while the choice to wage war itself evades condemnation or analysis. Opposition to the Iraq War was commonly voiced as a matter of respect for international law. And now that Washington is helping a Saudi-led coalition bomb Yemen, one common apologia is that American targeting assistance saves lives by bringing air strikes into compliance with "international humanitarian law," the euphemistic term for the laws of war.

Such opposition as exists to US drone strikes in Afghanistan, Pakistan, Syria, Iraq, Libya, and Somalia is also frequently expressed as concern about inadequate legal procedure. But as Jameel Jaffer points out in the introduction to his new anthology, The Drone Memos, the problems with these strikes are hardly limited to questions of legality. Dennis Blair, a former director of National Intelligence under Obama, has worried that drone strikes might be harming the "national interest"—presumably, the security of the domestic United States—in the long run. Even perfectly executed tactics can undermine larger strategy: Not mentioned in Jaffer's introductory essay is this past May's drone assassination of Mullah Akhtar Muhammad Mansour, the leader of the Afghan Taliban. Instead of causing the Taliban to disintegrate or surrender, it merely brought forward new leaders, who have turned out to be even more hostile to negotiations for peace and power-sharing deals with the Kabul government and its American patrons. At this point, reaching such a deal is Washington's aim in the Afghan war, but because of the successful drone assassination of a high-value target, this goal has been set back at least a year.

Jaffer's brief discussion of the strategic fundamentals of drone strikes—whether or not they create a net security benefit or liability and for whom; whether or not they are an act of defense or aggression—is the most important part of this book, and I wish it were longer. The rest of the volume, true to its subtitle, Targeted Killing, Secrecy, and the Law, collects texts and speeches about the legal side of drones by various high-ranking government officials from Obama to Harold Koh, the former legal adviser at the State Department and a scholar of human-rights law, who devised and presented the legal rationale for drone assassination. Many of these writings discuss what exactly due process consists of for targets who are US citizens. But while the power to kill Americans is of course important, even a total ban on targeting them would not much alter the weapons' use. Of the more than five thousand people killed by drones, only eight have been American citizens, and just one of them (Anwar al-Aulaqi) was specifically targeted.

The usual liberal criticism of drone assassination is that the program lacks transparency and needs a more rigorous legal procedure—standard good-government activism applied a little incongruously to death by unmanned aerial vehicle. These two issues are not negligible, but they are ancillary to the first-order issues of consequences and morality. In fact, both greater transparency and thicker legal procedure could be perfectly consistent with an aggressive drone-assassination program.

Because the CIA's drone program is highly classified, what we know of it comes from official leaks (unnamed "senior officials" in mainstream news outlets) along with a few gonzo exfiltrations. It would be good if we knew more. But the black lacework of redaction throughout these drone docs gives them a sexiness they don't deserve, the concealments due more to compulsive overclassification than the suppression of earthshaking information. As Jaffer notes, the secrecy of the drone program is, "in significant part, a fiction." We already know enough about drones to make an informed decision about their use. (Besides, support for drone strikes is strong among Democrats, including Bernie Sanders, Republicans, and independents; even if targeting procedures were broadcast on C-Span, there's no evidence that the needle of public opinion would move.)

Drone launch from the flight deck of the USNS Amelia Earhart, 2010. Mass Communication Specialist 1st Class Kim McLendon/Wikicommons

What matters more than the government's pretense of secrecy are the willful blind spots regarding drones and their consequences. Two recent serious attempted terrorist attacks on domestic soilnot the kind of plots ginned up by FBI informants preying on local sad sacks—have been, according to the perpetrators' own candid statements in court, motivated in part by drone strikes on the Pashtun lands that straddle the border of Afghanistan and Pakistan: Najibullah Zazi's plan to bomb the New York City subway, for which he was convicted in 2010; and Faisal Shahzad's attempt to bomb Times Square, which was foiled after the bomb failed to detonate. Yet terrorism at home is rarely connected to drone strikes or other acts of military force abroad, as if it were forbidden for those wires to touch. For instance, the Stimson Center's 2014 think-tank report on the strategic costs of drones failed to mention Zazi's and Shahzad's motives entirely. Fifteen years after the September 11 attacks, to attribute terrorist behavior to anything beyond "hatred" or "fanaticism" is generally seen as making excuses and violates an imperial taboo.

If greater transparency is unlikely to slow the use of this weapon, what would be the consequences of a more elaborate legal procedure for drone strikes? Although Jaffer frets about untrammeled executive power, it's not clear that greater involvement from the judicial and legislative branches would alter the program in the least. Jaffer admits that the creation of special drone courts would serve to normalize the tactic, just as the special FISA court has approved the overwhelming majority of federal wiretap requests. As for the legislative branch, Congress contents itself with occasional proceduralist hand-wringing about executive oversight, but if it did intervene, the result might well be even looser restrictions on targeting. As Jaffer writes, in 2015 the Senate Intelligence Committee pushed back against the Obama administration's effort to shift control of the drone strikes from the more secretive CIA to the theoretically more accountable armed forces.

More fundamentally, the assumption that legal procedure can restrain or refine the use of deadly force is worth getting rid of. The clashing claims of right-wingers and liberals both inflate the importance of the laws of armed conflict and mutually reinforce each other. On one side are bellicose nationalists for whom the laws of war are a scapegoat for strategic incompetence: In this view, overly restrictive "rules of engagement," from Vietnam to Afghanistan, have tied our soldiers' hands and are among the primary reasons for military defeat abroad. In the past year, complaints about excessively dainty ROE were a leitmotif in the Republican-primary debates, with Senator Ted Cruz and Donald Trump competing to shed the most legal inhibitions in their threats to attack the Middle East. On the other side are liberal legalists for whom the laws of war are a powerful tool that might someday sterilize military force and turn it into an instrument suitable for humanitarian surgery—war without war crimes, perhaps without tears. Surely, if enough human-rights lawyers like Samantha Power and Harold Koh are involved, couldn't drone strikes and war in general become so much nicer?

What both these claims miss is that the real function of the laws of armed conflict is not to restrain lethal force but to optimize its application. Amid the complexity of modern warfare, law is an essential organizational and coordinating tool, not a humanitarian add-on; as indispensable a component as the computer systems. And as US Air Force Major General (retired) Charles J. Dunlap Jr. has pointed out, the legal apparatus that takes part in target selection more often spurs hesitant soldiers to pull the trigger than holds them back. There is simply nothing inherent in law or lawyers that limits deadly force. According to journalist Daniel Klaidman's inside account of the drone program, Harold Koh's legal rationale, and his human-rights pedigree, were mainly a prestigious hood ornament for the Hellfire missiles. The military and the CIA "called the State Department lawyer 'Killer Koh' behind his back. Some of the operators even talked about printing up T-shirts that said: 'Drones: If they're good enough for Harold Koh, they're good enough for me.'"

I hope this hard look at drone legalism will not seem ungenerous to Jaffer's book or to his lawyerly work at the ACLU; that group has had some triumphs holding the national-security state to account, and a rights-based NGO can only play its position. But it is high time for us civilians to step back from all the law talk and take a new interest in the politics of war: the interplay of interests, strategy, and yes, morality, which jurisprudential discourse often fails to capture.

There are other ways to look at drones, including some important texts that might supplement Jaffer's anthology with strategic and political heft. For instance, court transcripts from the trials of Zazi and Shahzad, in which the two would-be bombers talk about their hatred of US drone strikes on Pashtun lands. Another must—Freedom of Information Act permitting—is at least one report by Pentagon intellectual Rex Rivolo, whose analyses of targeted killing show that eliminating the heads of non-state armed groups generally leads to more violent chaos, not less. (Rivolo is a major presence in Andrew Cockburn's superb 2015 book Kill Chain, a deep political and military history of Obama's drone program.) The leaked diplomatic cables from US ambassador to Pakistan Anne Patterson, warning in 2009 of the destabilizing damage wrought by drone strikes, are another essential text. It's disturbing to note that similarly measured objections to some assassinations made by her successor, Cameron Munter, were overruled—a nutshell encapsulation of the militarization of US foreign policy. Drone strikes and war in general are more than a matter of law. Only by relearning to see armed conflict as a morally charged strategy, with lawyers as minor helpmeets, can we even begin to hope to find peace.


Chase Madar is the author of The Passion of [Chelsea] Manning: The Story Behind the Wikileaks Whistleblower (Verso, 2013).