10 Questions to Ask Yourself When Reading Jameel Jaffer’s “The Drone Memos”

Jameel Jaffer’s new book, The Drone Memos: Targeted Killing, Secrecy, and the Law, will be published on November 15, and hard copies will also be available at Just Security’s Three-Year Anniversary event this evening. The book includes a collection of U.S. government documents and official speeches related to its topic, as well as a highly thought-provoking 55-page substantive introduction by the author.

In his own book published in 2012, Jack Goldsmith described Jameel as “a man at the vanguard of the national security bar who used the courts and the FOIA in new ways to extract the government’s darkest national security secrets.” Since 2012, Jameel’s litigation work and commentary on national security law issues has only deepened this understanding of him and the profound respect he earns from all sides. The Drone Memos serves as a perfect bookend, not only for the Obama administration but also for the beginning of the next presidency. It demands our critical reflection. In an effort to facilitate that exercise, I thought to provide the following set of questions for readers of the book.

1. How many of your intuitions about the legal and ethical issues raised in the book—the legality of the drone program, the need for transparency, and so on—turn on the whether you believe the US conflict with Al-Qaeda is appropriately considered an “armed conflict” (or “war,” in lay terms)? If we all agreed on the answer to that threshold question (whether it’s an armed conflict), how much agreement could be reached on the legal and ethical issues that the author raises?

2. How much of the analysis and concerns raised in the book apply as well to the US armed conflict with the Islamic State where large armies engage in combat on a recognizable battlefield? When is it appropriate for purposes of analysis to group the US conflict with Al-Qaeda and the US conflict with ISIL?

3. 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”?

4. 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”?

5. How important is US citizenship status and location of a target? For example, how strong, as a matter of US constitutional law, is the author’s call for after-the-fact judicial review of targeted killing if the individual were a foreign national (residing in a foreign country)? Which of the author’s concerns about the use of lethal force to target a US citizen in, say, Yemen would no longer apply if the US citizen were instead on a battlefield in Afghanistan? How might citizenship and location affect the application of international human rights law?

6. How many criticisms does the author place on President Barack Obama’s doorstep, and are these accounts descriptively fair and accurate? For example, Jaffer refers to “the transparency protocols that President Obama resisted for seven years and adopted only in the last year of his second term.” Is it President Obama who resisted the efforts at transparency, or is it more accurate to say that people and organizations within the administration are the ones who resisted the President’s push toward greater transparency? What changes depending on the answer to that question? What were President Obama’s failings, and what might we learn from them?

7. Given the wealth of factual information that the author uses to describe US lethal force operations, how much of a shortage of transparency is there? Is there sufficient, publicly available information to evaluate whether these operations are legal and wise?

8. Has the drone campaign been militarily effective? Jaffer writes: “Many officials insist that the drone campaign is necessary, but none can plausibly say that it is working.” What is the proper empirical baseline for this claim? Would Al-Qaeda be weaker today if the Obama administration’s drone campaign had not been carried out? Has the mix of US military strikes and partnering with local forces worked against ISIL?

9. In May 2013, President Obama issued a Presidential Policy Guidance, which includes a set of substantive constraints and procedures for obtaining authorization before taking direct action against terrorist targets outside areas of active hostilities. Jaffer writes: “the May 2013 decision to impose stricter limitations on drone strikes seems to have had an effect only at the margins.” Is that correct? What information would you need to make that evaluation?

10. What causal factors have led to the expansion of the drone campaign?  Jaffer writes: “Perhaps it is also true, though, that only President Obama could have overseen it. When President George W. Bush left office, he was unpopular and distrusted. …  It is doubtful that the courts or the public would have allowed him to expand the drone campaign.” What other causal factors might explain the expansion of the campaign? Has the perception of the threat among the American public changed? Could technological developments and advances in intelligence gathering, in part, explain it? If the next person to occupy the Oval Office is unpopular and distrusted, can we expect that the courts and the public will compel that Commander-in-Chief to shrink or limit the drone campaign?

  

About the Author(s)

Ryan Goodman

Co-Editor-in-Chief of Just Security, Anne and Joel Ehrenkranz Professor of Law at New York University School of Law, former Special Counsel to the General Counsel of the Department of Defense (2015-2016). You can follow him on Twitter @rgoodlaw.