Removing some of the droning-on about drones

WASHINGTON — For the past week, Washington has been consumed by nutty fantasies about drones. Republican Sen. Rand Paul waged a 13-hour filibuster, ranting that President Barack Obama might unilaterally send unmanned aircraft to kill innocent Americans in their own country. Other senators, Republican House leaders, conservative pundits and right-wing demagogues encouraged this lunacy. It’s a complete misunderstanding of how drones work and what we should be asking about them.

If you want to understand drones, tune out the rants. Read well-sourced reports about how the United States government actually prepares, justifies and executes drone strikes. The best such report in quite a while is Sunday’s 3,600-word investigative story in The New York Times about the targeted killing of Anwar al-Awlaki, an American-born al-Qaida operative. The story — based, according to the Times, on "interviews with three dozen current and former legal and counterterrorism officials and outside experts" ­­— punctures several myths about the drone program. But it also raises deeper and more difficult questions about how targets are chosen and justified. Here’s what we can learn from it.

• Captures are more useful than kills. The paranoid vision of Obama sending drones to terminate U.S. citizens at home assumes the government would rather kill targets than capture them. Granted, the administration has argued — a bit too conveniently — that drone strikes are OK because if we tried to capture our targets instead, our troops might die. But that’s overseas. In this country, we have better options. The Times story details how a terrorist captured here, underwear bomber Umar Farouk Abdulmutallab, gave us important information under interrogation, including Awlaki’s role in the bomb plot. Two years ago, even though Awlaki was in Yemen, largely beyond the reach of our government or Yemen’s, Yemeni security forces searched house to house in a village where he was thought to be hiding. They didn’t find him. But the episode suggests we do try to capture targets, even in enemy-infested countries where we can’t easily deploy troops.

• Drone warfare is an intelligence operation. In the paranoid vision, drones hover above us, targeting defenceless humans. But drones can’t do much by themselves. Even if they weren’t operated by human pilots — which they are — they need humans to feed them intelligence. The Times reports that long after White House lawyers had approved Awlaki for lethal targeting, the U.S. government had no idea where to find him. The CIA, the National Security Agency, the military and Saudi agents had to hack into computers, monitor cellphones and recruit spies within al-Qaida and other militant networks. It took the CIA more than a year to get the tip that led to the fatal strike.

When the intelligence is bad, the results are bad. Two weeks after Awlaki died, a second strike killed his son, who was also a U.S. citizen. The kid was 16 years old and had no record of terrorism. The Times says this wasn’t deliberate: The strike was based on erroneous intelligence that an Egyptian al-Qaida operative was at the site. That’s one reason the CIA, a spy agency, runs the drone warfare program against al-Qaida: The intel is crucial. At his confirmation hearing last month, John Brennan, President Obama’s new CIA director, said the CIA should be less involved in military operations. But it was Brennan, according to the Times, who, as Obama’s counterterrorism adviser, put the CIA in charge of hunting down Awlaki.

• Don’t believe anything you hear from foreign governments about drones. By now, everyone knows the Pakistani government lies about drone strikes in its frontier provinces, even to the point of blaming drones for strikes they had nothing to do with. Now you can add other governments to the list of frauds. According to the Times, Yemen permitted drone strikes "as long as the United States did not acknowledge its role." Similarly, "Saudi officials had given the CIA permission to build [a drone] base on the condition that the kingdom’s role was masked."

• Some of Obama’s secret legal memos are half-baked. For months, members of Congress have asked to see memos from Obama’s Office of Legal Counsel that outline the lawfulness of the administration’s targeting policies. The White House has been stonewalling them. Why? One reason might be that some of the memos are defective early drafts. The Times says that after Obama’s lawyers wrote their first memo, they discovered by reading a blog that they hadn’t taken into account a federal law that seemed to prohibit drone strikes on American citizens abroad. The lawyers had to dig up a court ruling that construed the law in their favour. They addressed the troublesome law and the ruling in a second memo.

• The memos hide more than they reveal. Critics (including me) have accused the administration of asserting dangerously broad authority to kill people it views as threats. The Times suggests this is less about grabbing power than about withholding information. According to the story, the original long memo that justified targeting Awlaki was full of intelligence specific to his case. The administration didn’t want to release this intelligence, so it stripped out all the facts in the memo and converted the framework into a Justice Department "white paper" that was leaked to the press. This means there were lots of contextual factors that, in the view of Obama’s lawyers, justified killing Awlaki. Many of these factors wouldn’t apply in other cases, such as targeting an al-Qaida underling who happens to be a U.S. citizen. By omitting those factors from the white paper, the administration makes it appear as though almost anyone is fair game. To clarify the limits of drone targeting, Obama will have to say more about the conditions that warranted the strike on Awlaki.

• There’s a shadow target-evaluation process the government isn’t telling us about. So far, the administration’s speeches and legal memos have told us only about the rules for approving explicit targets. Explicit targets are the people whose presence at a site officially justifies a lethal strike. But officials who authorize such strikes often know, from the intelligence that leads to the decision, who else will be at the site. These additional victims may include implicit targets — people who don’t quite meet the standards for being targeted, but whose deaths the U.S. government wouldn’t exactly mourn.

Awlaki may have been one such target. The first airstrike that was thought to have killed him actually took place in December 2009, nearly two years before his death. It was a manned Yemeni air assault, not a U.S. drone strike, but it was guided by U.S. intelligence. At that time, the U.S. didn’t have sufficient evidence to justify targeting Awlaki. Nevertheless, Yemen announced that Awlaki was "presumed to be at the site." According to the Times, the strike officially targeted other people at the scene, and Awlaki would have been "collateral damage — legally defensible as a death incidental to the military aim."

In the September 2011 strike that finally killed Awlaki, the same thing may have occurred. By then, U.S. officials had marked Awlaki for death. According to the Times, they had decided that Samir Khan, a fellow U.S. citizen who ran al-Qaida’s online magazine, "was not a significant enough threat to warrant being specifically targeted." But the strike on Awlaki took out Khan as well, and Obama’s lawyers argued that Khan’s death "was legally defensible as collateral damage."

Marcy Wheeler, a blogger who tracks targeted killing, suggests that the U.S. has been doing this since 2002, when it knowingly killed Kamal Derwish — an American citizen accused of recruiting and training al-Qaida operatives — during a drone strike in Yemen. U.S. officials said Derwish was just "collateral damage," tragically "in the wrong place at the wrong time."

That’s three U.S. citizens who died or were expected to die in strikes that didn’t officially target them. Maybe it’s coincidence. Or maybe, when the U.S. wants to kill an American it can’t explicitly target, it finds a way to catch him in the wrong place at the wrong time. How does the government make such decisions? I’ve never seen any explanation of that process or its ground rules, in any speech or memo, under any administration. Maybe it’s time to ask.

William Saletan covers science, technology and politics for Slate.

—Slate