Targeting Obama's use of drones

Hidden among the Olympic and election headlines last week were a few stories that revealed a range of previously unknown information about the US’ controversial and ongoing drone assassination programme. The White House released to the press a document known as a Presidential Policy Guidance (PPG), which was written in 2013, and outlined the various steps the US government takes before allowing itself to kill or capture people it deems to be threats.

The release comes in the context of an on going lawsuit by the American Civil Liberties Union (ACLU) though it is also part of a broader effort by the Obama administration to present the drone assassination programme in a favourable light. Though quite heavily redacted, the PPG explains its mission:

This Presidential Policy Guidance (PPG) establishes the standard operating procedures for when the United States takes direct action, which refers to lethal and nonlethal uses of force, including capture operations against terrorist targets outside the United States and areas of active hostiIities.

Capture or kill?

According to the document, the US government always seeks to capture its targets rather than kill them. This, it says, is because “capture operations offer the best opportunity for meaningful intelligence gain from counterterrorism (CT) operations and the mitigation and disruption of terrorist threats.” In other words, captured people can give you further intelligence, dead people cannot.

However, the where such a capture operation is considered “not feasible” and there are no other feasible alternatives, then the possibility of a lethal operation is put in to motion. The document clarifies though, that any such lethal operation should be strictly limited to the goal of preventing a potential future actions and that it is not in any way meant as a means of administering either justice or retribution for past actions.

The PPG states that “lethal action should not be proposed or pursued as a punitive step or as a substitute for prosecuting a terrorist suspect in a civilian court or a military commission” and that “CT actions, including lethal action against designated terrorist targets, shall be as discriminating and precise as reasonably possible.”

Yet, even taking into account these restrictions, the decision over using lethal force remains morally and legally murky.

Who to kill

The PPG goes on to set out some apparently simple guidelines over who the US should be killing:

1. “Direct action against an identified high-value terrorist (HVT) will be taken only when there is near certainty that the individual being targeted is in fact the lawful target and located at the place where the action will occur”; and
2. “Direct action will be taken only if there is near certainty that the action can be taken without injuring or killing non-combatants.”

Put more simply, these rules are so obvious they’re nearly meaningless; the US government should try to kill the people that it wants to kill and not anyone else.

Moreover, there is some ambiguity here when the PPG outlines its definition of who should not be killed, specifically, “non-combatants”. While it defines “non-combatants” as “individuals who may not be made the object of attack under the law of armed conflict”, it goes on to throw more shade onto the issue by stipulating that,

The term ·’non-combatant’ does not include an individual who is targetable as part of a belligerent party to an armed conflict, an individual who is taking a direct part in hostilities, or an individual who is targetable in the exercise of national self-defence.

This final sentence obviously leaves significant room for interpretation. As demonstrated by the preposterously low number of non-combatants the administration estimates that it killed when Obama spoke to the press earlier this year. The president suggested that the US had killed a maximum of 116 non-combatants since taking office in 2009, however, as the Daily Beast reported at the time, “no one who has studied the preferred US tactic in the war against terror groups like Al-Qaeda consider that figure accurate.”

Instead, the independent organisation the Bureau of Investigative Journalism estimated that there were 380 to 801 civilian casualties. It said its figures were based on “reports by local and international journalists, NGO investigators, leaked government documents, court papers and the result of field investigations.”

It is likely that the source of this discrepancy results from the astonishingly broad definition that the US government uses to designate someone a “combatant”. Indeed of the “2,372 to 2,581” non-civilians that the US has killed with drone strikes, a proportion (it is not known exactly how many) are designated combatants based on no specific evidence at all. In fact any male who is of military age is assumed to be a combatant. As the New York Times reported:

Mr. Obama embraced a disputed method for counting civilian casualties that did little to box him in. It in effect counts all military-age males in a strike zone as combatants, according to several administration officials, unless there is explicit intelligence posthumously proving them innocent.

How to kill

The PPG sets out a series of procedures that officials must follow when ordering an assassination. The first stage is the creation of an “operational plan”. Such a plan describes how and why the assassination is intended to occur and must explain that there are no feasible alternatives to killing.

It is be put together by one of the relevant agencies (such as the Department of Defence or the CIA) and then passed on to the National Security Staff (NSS) for interagency review. The plan undergoes legal review at both stages and is also assessed for its adherence to the PPG.

The PPG details eight specific points which the operational plan should address. When the plan targets a known “High Value Target”, these focus on accounting for a range of possible variables and outlining both the “Counter Terrorism Objectives” and the international legal basis for the strike.

However, when the agency involved wants to kill someone who is not a known “High Value Target” there are extra hurdles to explain why.

After that, and after analysing how killing the designated target aligns with broader US policy, the next step is to take the plan to the Oval Office. As the PPG stipulates:

“If the Principal of the nominating operating agency, after review by Principals and Deputies, continues to support the operational plan, the plan shall be presented to the President for decision, along with the views expressed by departments and agencies during the NSC process.”

The president may then, presumably, elect to accept or reject the plan or send it back for amendments. Moreover, if there is disagreement between different agency chiefs, then “the president will adjudicate any disagreement”.

What does this mean?

The PPG provides a range of further details on each of these stages, though much of this is repetitive and adds little in the way of illumination or clarity.

Overall the release of PPG is designed to achieve two goals for the administration. First, it shows the US’ drone programme – and its commander-in-chief – as reasonable and judicious and, second, it sets out a kind of rulebook for future presidents. However, the PPG does neither.

Given the fact that these procedures are set out as a PPG and not in law demonstrates the fact that they have essentially no effect on limiting the power of future presidents who can easily write their own PPG and disregard Obama’s entirely.

Jameel Jaffer, a lawyer for ACLU, explained that the entire programme of drone assassinations is unprecedented and legally ambiguous. “The government has essentially invented its own set of standards. . . somewhere in between international law covering war zones and outside areas.”

Essentially, the PPG offers only a minor insight into an astonishingly opaque and insular process where some parts of the US executive branch discuss amongst each other who and how they would like to kill people they believe are threats. There clearly are no real checks or balances on this (not in the same way there is in virtually every other part of American governance where an independent judiciary can overrule the president or the congress can constrain his/her actions) yet it is in this very area of policy that the US presidency is at its most imperial.

In the words of Faisal Bin Ali Jaber, a Yemeni engineer whose family members were mistakenly killed by a US drone strike in 2012:

Obama’s secret drone wars have also killed schoolteachers, policemen, women and children. What we need from President Obama is an apology – and a promise that these terrible crimes will not be repeated.

The views expressed in this article belong to the author and do not necessarily reflect the editorial policy of Middle East Monitor.