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MIT TECHNOLOGY REVIEW
These conditions were nothing new. They came
from a 16-page Justice Department white paper that
was leaked to the press in February. The white paper’s
legal rationale was full of holes and evasions, and so
was the speech it inspired.
The white paper’s main sleight of hand was to
define the terms in such a way that the most basic fact
about these attacks—that they’re conducted outside a
war zone—is denied. To this end, it cites the Autho-
rization for Use of Military Force, a joint resolution
passed by Congress on September 14, 2001 (three
days after the terrorist attacks on the World Trade
Center and the Pentagon). Under
the AUMF, the president may
use all necessary and appropri-
ate force against those nations,
organizations, or persons he
determines planned, authorized,
committed, or aided the terror-
ist attacks that occurred on Sep-
tember 11, 2001, or harbored
such organizations or persons, in
order to prevent any future acts
of international terrorism against
the United States by such nations,
organizations or persons.
This language is strikingly broad. Nothing is men-
tioned about geography. The premise is that al-Qaeda
and its affiliates threaten U.S. security; so the presi-
dent can attack its members, regardless of where they
happen to be. Taken literally, the resolution turns the
world into a free-fire zone.
The white paper then lays down the same three
conditions that Obama later recited—ostensibly to
impose restrictions on otherwise sweeping executive
authority. In fact, they restrict nothing. Key to this
legalistic gamesmanship is the paper’s definition of
“imminent threat.” It states:
The condition that an operational leader [of al-
Qaeda or an affiliated organization] presents an
“imminent” threat of violent attack against the
United States does not require the United States to
have clear evidence that a specific attack ... will take
place in the immediate future.
In other words, “imminent,” in this context, does
not mean imminent.
The paper’s logic is that leaders of al-Qaeda and
its affiliates are “continually planning attacks” against
the United States. “By its nature, therefore,” the threat
demands “a broader concept of imminence.” That is
to say, the threat of an attack is constant; it is always
vaguely imminent, even if there are no signs of an
actual attack. And so the first condition that must
be met for a targeted assassination—an imminent
threat of attack—is not a restriction in any real sense.
The second condition—that it must be infeasible
to take the terrorist alive—is equally meaningless.
Because the threat of attack is always imminent, the
United States is likely to have “only a limited window
of opportunity” for mobilizing a raid on the ground.
By this standard, it is always infeasible to capture a
terrorist. Therefore, once he is found, it is necessary
to kill him with a drone strike. Again, it’s a test that,
by design, cannot be failed.
Lax as these standards are, the United States has
not lived up to them. For it turns out that most of
the people killed by drones, in places like Yemen and
Pakistan, are not al-Qaeda leaders. Often they’re not
affiliated with al-Qaeda at all.
In April, Jonathan Landay of McClatchy News-
papers wrote a story summarizing top-secret CIA
reports on the results of drone strikes conducted in
Pakistan over a 12-month period ending in September
2011. More than half the people that the CIA inten-
tionally killed—at least 265 of the 482 targeted—were
“assessed” as simply extremists of Afghan, Pakistani,
or unknown origin. Many of them were members of
the Haqqani Network. The Haqqani have ties with
Pakistan’s intelligence service and fight alongside
some insurgent factions in Afghanistan—but they
have never planned attacks outside the region. Dur-
ing this period, only six of the people killed by drones
were top al-Qaeda leaders.
In short, even accepting the white paper’s circu-
lar logic, the majority of those strikes fell outside the
legally permissible boundaries. They were not aimed
at terrorist leaders who pose a threat, imminent or
otherwise, against the United States.
The third and final condition for drone strikes out-
side war zones—that steps must be taken to minimize
or avoid civilian casualties—is a real restriction. Offi-
cials involved in these operations have told me (on con-
dition of anonymity) that on several occasions strikes
have been called off for this very reason, even if the
It turns out that
most of the people
killed by drones are
not al-Qaeda lead-
ers. Often they’re
not affiliated with
al-Qaeda at all.
6/5/13 2:04 PM
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