The Drone Memos

jaffer-drone-memos

From the New Press on 15 November, Jameel Jaffers The Drone Memos: targeted killing, secrecy and the law:

The Drone Memos collects for the first time the legal and policy documents underlying the U.S. government’s deeply controversial practice of “targeted killing”—the extrajudicial killing of suspected terrorists and militants, typically using remotely piloted aircraft or “drones.” The documents—including the Presidential Policy Guidance that provides the framework for drone strikes today, Justice Department white papers addressing the assassination of an American citizen, and a highly classified legal memo that was published only after a landmark legal battle involving the ACLU, the New York Times, and the CIA—together constitute a remarkable effort to legitimize a practice that most human rights experts consider to be unlawful and that the United States has historically condemned.

In a lucid and provocative introduction, Jameel Jaffer, who led the ACLU legal team that secured the release of many of the documents, evaluates the “drone memos” in light of domestic and international law. He connects the documents’ legal abstractions to the real-world violence they allow, and makes the case that we are trading core principles of democracy and human rights for the illusion of security.

From Jameel’s introduction:

This book is possible because the secrecy surrounding American drone strikes has begun, at the margins, to erode. The documents collected here shed light on how a president committed to ending the abuses associated with the Bush administration’s “war on terror” came to dramatically expand one of the practices most identified with that war, and they supply a partial view of the legal and policy framework that underlies that practice. But while many of the documents collected here were meant to be defenses of the drone campaign, ultimately they complicate, at the very least, the government’s oft-repeated argument that the campaign is lawful.

To be sure, even the existence of these documents is an indication of the extent to which the drone campaign is saturated with the language of law. Perhaps no administration before this one has tried so assiduously to justify its resort to the weapons of war. But the rules that purportedly limit the government’s actions are imprecise and elastic; they are cherry picked from different legal regimes; the government regards some of them to be discretionary rather than binding; and even the rules the government concedes to be binding cannot, in the government’s view, be enforced in any court. If this is law, it is law without limits—law without constraint.

Ryan Goodman provides ’10 Questions to Ask Yourself When Reading Jameel Jaffer’s “The Drone Memos”’ here.  For me, the two most crucial on the list – which anyone writing about drones and limiting the discussion to targeted killing needs to ask themselves (and rarely does) – are these:

Despite the title of the book, how much of the discussion and issues raised are really about drones per se? How much applies to cruise missiles, night raids, and other forms of direct lethal action? What analytic or rhetorical work is being done by focusing on “drones”?

Despite the title of the book, how much of the discussion and issues raised are limited to pre-planned targeted killing? What about dynamic strikes when a moment of opportunity arises, or so-called signature strikes? What analytic or rhetorical work is being done by focusing on “targeted killing”?

UPDATE:  For an excerpt from Jameel’s introduction, see this article, ‘How the US justifies drone strikes: targeted killing, secrecy and the law‘, from The Guardian:

As the 2016 presidential primaries were getting under way, sporadic and sketchy reports of strikes in remote regions of the world provided a kind of background noise – a drone in a different sense of the word – to which Americans had become inured.

Senior officials in the administration of President Barack Obama variously described drone strikes as “precise,” “closely supervised,” “effective,” “indispensable,” and even the “only game in town” – but what they emphasized most of all is that the drone strikes they authorized were lawful.

In this context, though, “lawful” had a specialized meaning. Except at the highest level of abstraction, the law of the drone campaign had not been enacted by Congress or published in the US Code. No federal agency had issued regulations relating to drone strikes, and no federal court had adjudicated their legality. Obama administration officials insisted that drone strikes were lawful, but the “law” they invoked was their own. It was written by executive branch lawyers behind closed doors, withheld from the public and even from Congress, and shielded from judicial review…

Now the lethal bureaucracy whose growth Obama personally oversaw will be turned over to a new administration. The powers Obama claimed will be wielded by another president. Perhaps as significant is the jarring fact that the practice of targeted killing – assassination, as it would once have been called, without a second thought – no longer seems remarkable, and the fact that the United States now boasts a legal and bureaucratic infrastructure to sustain this practice. Eight years ago the targeted-killing campaign required a legal and bureaucratic infrastructure, but now that infrastructure will demand a targeted-killing campaign. The question the next president will ask is not whether the powers Obama claimed should be exploited, but where, and against whom.

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