Among talk of voting reform, cyber attacks, the Violence Against Women Act, and the mantra of “They Deserve a Vote,” the word “drones” was notably absent from President Obama’s State of the Union address. That isn’t to say he sidestepped the highly contentious issue entirely. While addressing the “range of capabilities” the U.S. would enlist in the war on terror, the president said he would “continue to engage with Congress to ensure that not only our targeting, detention, and prosecution of terrorists remains consistent with our laws and system of checks and balances, but that our efforts are even more transparent to the American people and to the world.” One can readily assume that the “range of capabilities” includes targeted killings, of which the drone program is part and parcel. But what does engagement with Congress mean for the drone program and targeted killings?
Before addressing that, let’s consider the administration's record of transparency by looking at the history of the drone program up to the recent leak of the Department of Justice white paper that lays out the legal terms in which targeted assassinations can be directed at U.S. citizens. Before becoming part of public conversation (due in no small part to Jane Mayer’s excellent 2009 piece “The Predator War”), drones were used throughout the 1990s, particularly in the Gulf War and the Balkans conflicts as a means of surveillance and gathering intelligence. While these had “a kill capability,” it wasn’t until October 2001, in the first month of the war in Afghanistan that the first armed drones were flown, with the CIA’s first targeted killings occurring in February 2002. Since that time, America’s drone arsenal has increased from 167 to over 7,000, with strikes occurring mostly in Pakistan and Yemen, but also in Somalia, and to a lesser extent, the Philippines.
The nature of these strikes has expanded under the Obama administration into so-called “profile” or “signature” strikes, which are based on a “pattern of life” analysis that essentially renders “groups of men who bear certain signatures, or defining characteristics associated with terrorist activity, but whose identities aren’t known” into targets. At present, these defining characteristics are not in the realm of public knowledge. Obama’s aides said if the CIA “did not have a ‘near certainty’ that a strike would result in zero civilian deaths, Obama wanted to decide personally whether to go ahead,” and the U.S. publicly states that drone strikes result in no more than single digit civilian deaths. The fact that the blast radius of a hellfire missile is around 20 meters, not including flying shrapnel, and that blast waves are known to crush organs, calls these numbers into question, and indeed, independent sources place civilian deaths in Pakistan alone in the hundreds.
This brings us to the most recent phase of the drone program debate, highlighted by the recent leak of the DOJ white paper. The paper, while not a legal document, summarizes a memo that lays out the legal framework for which the “U.S. can use lethal force in a foreign country outside the area of active hostilities against a US citizen.” This lethal force can be carried out if the citizen is “a senior operational leader of al-Qa’ida or an associated force of al-Qa’ida,” if capture is “infeasible,” and if an imminent threat is posed, though the word “imminent” is used very loosely. The paper has raised serious issues with organizations like the ACLU and has spurned debate in the media but, as Benjamin Wittes and Susan Hennessey point out, the document doesn’t say much that Attorney General Eric Holder hasn’t publicly said before.
On the eve of John Brennan’s confirmation hearing, the Obama administration released the full legal memo to members of the Senate Intelligence Committee, in a move reportedly based on the desire to involve Congress in developing a legal framework for drone strikes. But what does congressional involvement mean for the drone program? Consider the fact that Dianne Feinstein, chair of the Senate Intelligence Committee, recently claimed that civilian casualties of (D-Calif.) drone strikes have been in the “single digits” for years. This fallacious reporting of the numbers in part stems from the Obama administration’s method of counting casualties which says “all military-age males in a strike zone as combatants … unless there is explicit intelligence posthumously proving them innocent.” In an attempt to increase transparency, Feinstein recently said she would review proposals for a court to oversee targeted killings. But the acceptance of clearly skewed numbers and lack of engagement with the realities of the drone program by one of the few members of Congress actually provided access to the memo points to any transparency granted being on the executive’s terms. This leads one to wonder if meaningful progress on the part of Congress is possible.