The idea that the president can authorize the killing of a human being far from any traditional battlefield without any publicly accessible set of constraints, conditions, or requirements is unacceptable in a country committed to the rule of law. In his first and only speech on security and our national ideals, at the National Archives in May 2009, President Obama insisted that adherence to the rule of law is essential in the fight against terror, and to that end, promised to be transparent about his actions “so that [the people] can make informed judgments and hold us accountable.” Yet after four years and hundreds of killings authorized in secret, the most the president has been able to offer us about the scope of his most awesome power is a handful of vague paragraphs in a handful of administration officials’ speeches, which experts must then parse for clues as to what the rules might actually be.
This secrecy is causing some severe problems for our Democracy. Here are four cited by the author David Cole in Its Time to Stop Killing in Secret :
1. Critics claim that the attacks have resulted in hundreds of civilian casualties. The administration has suggested that these charges are exaggerated, and that the attacks are extraordinarily precise, generating only minimal collateral damage. But since the administration will not acknowledge even its decision to undertake any specific attack, it cannot give its side of the story in any credible way.
2. The administration claims it targets “imminent” threats to the United States, invoking the international law concept of self-defense. But as I have noted previously there are serious questions about how it defines “imminent.” The core idea of the imminence requirement is that a state should not attack unless there is no time left, so that lethal force is being used only as a last resort. Yet until now, we have yet to see a single report of a drone strike actually halting a truly imminent attack on the United States. Instead, the administration appears to have redefined imminence to be satisfied by the fact that an individual is a member of a group that seeks to attack the United States whenever it has the chance to do so. Thus, US citizen Anwar al-Awlaki was said to pose an imminent threat even though there was no claim he was engaged in any sort of attack or preparations for an attack when we killed him in Yemen with a drone. Without public rules, we don’t know what criteria the administration is using for its decisions; and without acknowledgement of the grounds for specific attacks, we can’t assess whether those criteria are being properly applied.
3. The Times reports that the drone strikes, initially justified as focused on the senior commanders of al-Qaeda, have more recently been deployed against militants who are not part of al-Qaeda and do not directly threaten the United States at all, but who are enemies of states with which we are seeking to curry favor, such as Pakistan and Yemen. If this is correct, this would be a dramatic expansion of drone policy, one that veers far from any justification in the law of war. But again, because the policy is secret, we don’t know why the administration feels such strikes are warranted.
4. Finally, the administration apparently authorizes not only “personality strikes” to target identified and known individuals who have been placed on a “kill list” by an advance review process, but also “signature strikes,” in which drones are used to kill unidentified individuals who are acting in ways that suggest that they are combatants, that they belong to a particular militant or terrorist group. Such attacks might well have a place on a hot battlefield, where the law of war has never required soldiers to identify their enemies before shooting at them. But the president has also reportedly authorized “signature strikes” in Yemen, far from any battlefield, where we are not at war, and where it is much more difficult to assign combatant status to individuals based on patterns of activity.
The above issues illustrate why the article closes with:
The rules of the game need to be public, so that they can be debated and assessed, and so that we the people can hold our leaders accountable to the laws they claim to be following in secret.