The ACLU Goes to War

The Drone Memos collects important memoranda from the Justice Department, addresses by Barack Obama, John Brennan, Harold Koh, Eric Holder and others, executive orders and various documents. It provides an indispensable compendium for anyone interested in the Obama’s administration’s handling of counterterrorism policy and would be an excellent Reader for a seminar. The book is not so much about drones as about targeted killing and its justification. Some of these documents were pried loose from the government by FOIA requests and lawsuits, so it is particularly fitting that a lengthy introduction has been provided by Jameel Jaffer, the former deputy legal director of the ACLU.

That introduction is worth the price of the book alone, for it gives us an articulate and comprehensive critique of administration policy while also providing a memorable self-portrait of the ACLU lawyer as a combatant in the endless struggle against the US government.

Jaffer gives us a remarkable account of how a cerebral and cautious, left-of-center law professor ended up accelerating the targeted killing program from 50 drone strikes in the Bush 43 presidency that killed 296 terrorists, to 506 strikes that have killed 2,040 terrorist (as of January 2016).   What Jaffer doesn’t provide is the reason why this happened; or rather, the reason he does give is so institutionally self-referential as to cast doubt on his grasp of the problem of terror in contemporary strategic affairs.

On Jaffer’s view, the history of the Obama administration’s terror policies is essentially an account of the tortured course of litigation. Indeed litigation provides the all-embracing gestalt of his analysis. Even Jaffer’s metaphors are drawn from trials (the targeted killing of al Awlaki “was a bizarre death penalty case”). Litigation wholly encompasses the Constitution (“if the Constitution meant anything at all, it surely meant that the government could not kill its own citizens without ever justifying its actions to a court”).  The government’s efforts to protect its military-intelligence operations (“they declined to supply on-the- record accounts of the strike and they withheld the results of their post-strike investigation. They control most of the information and disclosed only what they chose to,”) are made to sound like Brady material transgressions. Indeed it is as if the entire rationale of the government’s counterterrorism strategy was concocted to thwart the ACLU’s litigation strategy: “in fact the claim that the United States was engaged in a borderless war against terrorist groups was foundational to the Obama administration’s defense of the drone campaign. It was this claim that permitted the Obama administration to contend that drone strikes — even those carried out away from the zone of actual hostilities — were governed not by human rights laws, which bars the use of lethal force except in very limited circumstances, but by the laws of war, which are more permissive of state violence and less protective of individual rights.”

At a parent conference last week, one of my son’s teachers suggested my wife and I play a card game with Pasha to improve his fine motor skills. She called the game, “Hi-Lo.” After hearing the description, I said, “oh, I used to play that as a child; we called it ‘war.’” “Yes,” she said. “We don’t use that word here.” Apparently Pasha’s teachers and Jameel Jaffer’s colleagues are using the same lexicon, because you would never know from this essay why in the world , “a president committed to ending the abuses associated with the Bush administration’s “war on terror” came to dramatically expand one of the practices [targeted killing] most identified with that war.” That is because Jaffer so studiedly avoids ever acknowledging, much less discussing the consequences of the growth in the threats we face in the wars on terror. You will find nothing in this essay about the massacres in Paris and Brussels, nothing about the rise in sanctuaries in Nigeria, Libya and Yemen, nothing about the deterioration of conditions in Afghanistan and Somalia, nothing about the human rights atrocities in Syria — which should be odd for a human rights advocate — scarcely a mention of the four letter words ISIS and Iraq. It’s rather like saying you will give an account of how a mild-mannered physician ended up sedating and dismembering an innocent man without mentioning the gangrenous leg.

The natural assumption that, because the war is borderless, you want legal authorities to allow you to wage it successfully is turned on its head. Apparently, you invent a war and its parameters, so you can win in court against the ACLU.  But if the war isn’t borderless, and the attacks on New York, London, Paris and Istanbul were not incidents of war, what were they?  Accidents?

Moreover the everything-is-litigation perspective depends upon some fundamental misconceptions about law. Jaffer appreciates that the Obama administration tried to integrate law into its strategic operations — an important, even historic step — but he misconstrues how this is to be done, that is, what in this context lawfulness consists in. He appears to believe that lawfulness is a creation of executive branch lawyers “writing behind closed doors,” but this isn’t quite right. Legal opinions drafted within the executive branch do create doctrine, much as appellate opinions do within the judiciary, but it is misleading to suggest that therefore “the law of the drone campaign had not been enacted by Congress.” Congressional statutes, including appropriation statutes, and joint resolutions are what the legal opinions are construing.

More importantly, the lawyers at the State Department, or at Justice, have no authority to establish legal rules for the executive branch, much less anyone else. The power to make law for the executive branch, either through interpreting a statute or executing the exclusive powers of Article I, or making rules via executive orders, lies solely with the president. It’s not the OLC opinion that provides the law; in fact, it doesn’t even provide the rationale unless the president chooses to adopt it as his own. If the president asserted a rationale for the lawfulness of targeted killing that differed from that proposed by OLC, the OLC opinion would not contravene or override the president’s decision. If he failed to adopt the OLC reasoning as his own, the opinion wouldn’t, like an unsigned but unvetoed statute, become law. The insistent, coercive attempts by litigation to force the publication of clearly privileged legal opinions thus aimed at the wrong target: it was up to the president to present his rationale to the public regardless of whether he accepted the advice of his lawyers.

Jaffer professes to be baffled by what that rationale could possibly be. “For decades the US government had condemned targeted killings, characterizing them as assassinations or extrajudicial executions. On its face, the drone campaign signified a dramatic departure from that position… It was far from obvious what distinguished American drone strikes from the targeted killings the US had historically rejected as unlawful. Nor was it clear how these targeted killings could be reconciled with international human rights law, with a decades old executive order that bans assassinations, with the constitutional guarantee of due process, or, for that matter, with domestic laws that criminalize murder.” The obvious answer to these puzzles, I should’ve thought, is that we are at war and that Congress has authorized that war. It’s not drone technology that makes targeted killing lawful (nothing “distinguishes drone strikes,” per se), it’s the fact—the legal fact–of war.

And not merely this inconvenient fact intrudes on the hermetically sealed chambers of the human rights litigator; it is also the case that we are in a particular kind of war. Like so many others, Jaffer prefers to use shudder quotation marks when he refers to the “war on terror” in order to emphasize its spurious nature.  The wars on terror have done for shudder quotes what the 1970s did for bell bottomed trousers and disco music (we shall see if similar regret eventually ensues). The wars we are currently engaged in don’t seem to fit Jaffer’s conception of a proper war. He is appalled that, “the US was carrying out lethal strikes not only on ‘actual’ battlefields”– – note the shudder quotation marks again – – “but in places far removed from them as well.” This may sound pretty shocking until you think about warfare and the kinds of war that are fought by modern states. In the wars of the industrial nation states for example total war was often waged far from the “actual” battlefield. Remember the burning of Atlanta? The strategic bombing campaigns of World War II? Hamburg? Hiroshima? Now, in the era of wars on terror which is bringing into being the informational market state, targets are likelier to be more discrete but also more dispersed; more individuated, but more global.

In Jaffer’s hands, however, these developments are reduced to a clever if nefarious administration litigation tactic. Jaffer never displays any awareness of a genuine national security threat or context that might be driving legal policy, straining to concede only that it might be that “perceived counterterrorism” imperatives were derailing the constitutional processes of state.

I imagine this is why he uses innuendo to discredit Harold Koh, the former legal advisor to the Department of State. First, Jaffer intimates that Koh was hired by the administration and deployed as a spokesman for its policies because this would discombobulate the human rights community of which Koh was such a prominent and esteemed member. Then, Jaffer implies that Koh reversed his lifelong commitment to human rights by defending US government policy on targeted killing. The very idea that Koh might have had some good reason to believe he was vindicating his human rights ideals when he sought a legal rationale to resist terror apparently is too preposterous to consider.

Perhaps that’s because Jaffer does not concede that global developments should drive legal concepts. With the finality of a barrister eliciting the clinching judgment of an expert witness, Jaffer writes that, “the ICRC does not share the view that a conflict of global dimensions is or has been taking place.” Well, that ought to settle it, right?

There is a good deal of this sort of ipse dixit-ing in the essay, but given Jaffer’s manifest abilities and the subtlety of his approach, one wonders why. Why for example does he repeatedly observe, in mild but ominous tones, that, “secret law is unsettling.”  Of course it is, but OLC opinions are not law and presidential decisions are rarely secret for very long. Indeed one reason the Administration was anxious to transfer targeted killing operations out of CIA was so that the operations could be more fully described to the public.  Jaffer quotes extensively from the “Playbook,” the 18 page set of rules formally known as the Presidential Policy Guidance issued by the president in May 2013. These procedures had been previously reported, relying on unattributed accounts by current and former officials. Under the Playbook, the United States would only use lethal force against individuals who posed a “continuing, imminent threat to US persons,” when there was “near certainty” that the target was present at the site and “near certainty” that noncombatants would not be injured or killed. The government would only use lethal force if it concluded that capture was “not feasible,” and the country in whose territory the strike was to take place was unable or unwilling to address the threat itself; and finally that there were no other reasonable alternatives to stop the threat.” Although the complete Presidential Policy Guidance was not declassified until August 2016, these rules were given a public release by the White House in a fact sheet in May 2013.

There are certainly a number of ambiguities in this description of a bureaucratic process, but what’s the secret law here? I’ve been puzzled as to why the ACLU and others were so eaten up with getting the legal opinions in these matters released – – even holding up David Barron’s confirmation for the First Circuit until the opinions were made public— and apart from the usual arm wrestling for dominance I have come up with just one speculation. It may be that, like the lawsuits that sought to expose those telecommunications corporations that cooperated with NSA, the purpose behind this agitation is mainly to intimidate – – to place in the public record the names of otherwise unknown persons as figures  inimical to our constitutional rights. The officials of the state are the enemies of the people.

If my speculation is true, those are pretty rough tactics but not very different from the larger strategy of delegitimating government action of which we have seen a good deal lately. Jaffer often mentions the alliance between left litigation and right libertarianism, a collaboration of Glenn Greenwald with Rand Paul, an embrace that must make both sides uncomfortable at some level (it certainly does me). Apart from their objectives, they do share a singularly annoying habit of repeating exaggerated claims: “having the executive being the prosecutor, judge, the jury and the executioner all in one is very contrary to the traditions and the laws of this country,” to say nothing of also being contrary to the facts of targeted killing in warfare. “The president asserting that he has the right to kill an American citizen without due process is troublesome,” as it should be, except that no president claims that the process that is due in warfare is the same as that for the commission of a common crime. These claims are reminiscent of Rand Paul’s assertion on the floor the Senate that the NSA was listening in on the cell phone conversations of practically everyone in America. Since last Tuesday, we’ve been living with the consequences of the relentless campaign of delegitimation based on the repetition of sensational charges and the view held by its advocates that the US government is really the chief threat to our liberties and well-being.

Perhaps it’s just irresistible for such a forceful and persuasive advocate to write one-sidedly: the habits of advocacy don’t cultivate evenhandedness. Thus we are given a sympathetic account of al Awlaki’s radicalization, and Jaffer’s horror that al Awlaki’s name was put on a target list, but nowhere are we told that al Awlaki, an American citizen, could’ve walked into any US consulate and turned himself in. He could’ve been met there by an ACLU lawyer to ensure his safe conduct (and his refusal to be interrogated.)

Similarly, Jaffer invokes respected national security figures like John Bellinger, Saxby Chambliss, and Stanley McChrystal who note the potential shortcomings of the targeted killing program –– it alienates local populations, it sacrifices the possibility of intelligence interrogation. But having worked with or known all of these men, I would be quite surprised if they thought the drone programs were unlawful or even of questionable value. This aspect of the essay makes it read more like a brief – – a carefully tailored presentation of sympathetic elements.

One might think that Jaffer would applaud the creation of an experienced cadre of lawyers and intelligence officials to administer the Obama Playbook, but he actually sees this development in a sinister way: there he finds, at last, the source of the true motivation to craft new rules to fight the wars on terror lawfully. It turns out that this motivation does not arise in response to the threats we face, as one might have thought, but from the inertial force of the bureaucracy we have created to cope with those threats— that is the real driver behind the reform of the laws regulating the practices of warfare. “Eight years ago the targeted killing campaign required a legal and bureaucratic infrastructure, but now that infrastructure will demand a targeted killing campaign.”

This is consistent with his claim that unadjudicated law is, “law without limits.” I don’t know what Jaffer would do with constitutional cases like impeachment, the standards for the Senate confirmation of nominees to the Supreme Court, the legality of the Louisiana purchase (to say nothing of secession), the authority of President Truman to send forces to Korea to enforce a UN mandate, and the vast number of unadjudicated – – even nonjusticiable – – but highly significant constitutional cases that form an important part of the corpus of American constitutional law. At one point he seems to concede that due process does not invariably mean judicial process. “There are contexts in which domestic and international law permit the government to deprive individuals of their rights, and even their lives, without first presenting evidence to a judge.… No one proposes that police officers should submit applications to judges before responding even with lethal force to threats they reasonably believed to be imminent.” But Jaffer quickly makes it clear that the essential element in such instances is imminence:  “except on actual battlefields, ‘imminence’ marks the line between situations in which lethal force can be used without prior judicial approval in situations in which it cannot be.”

There are some substantial prudential weaknesses to such a rule. As the Obama administration has asserted, the legal requirement of imminence, as formulated by Webster in The Caroline, is that the action to be deflected permits no time for prevention by any other means. In the case of the terror network that plans its operations in secret for months, even years, it is quite unclear just when the moment arrives when it is too late. Like other catastrophes, nothing much happens for a long time and then things happen very quickly. Jaffer thinks that the months spent in careful intelligence collection and assessment by the government (“many strikes were preceded by bureaucratic deliberation”) simply show that there’s always time for judicial intervention.  Perhaps, he suggests unswervingly, we should consider setting up a “drone court.”

But apart from the prudential considerations, there is a formidable structural issue with such a solution. Jaffer seems to believe that the political question doctrine arises solely from the impracticality of using judges as administrators and adjuncts to the other branches, and there is something to that. The source of the doctrine, however, lies in the structure of the Constitution, not in its practical application: courts will not intervene to decide cases when the controversy at issue is one that the Constitution has allocated to another branch.  For example, the Supreme Court has held that lawsuits challenging Congress’s procedures for impeachment present a political question because the trial and conviction of a president are specifically allocated to the Congress, see Nixon v. United States, 506 U.S. 224 (1993).    Jaffer conscientiously presents the reader with the adverse holdings the federal courts have handed him in the drone litigation, but he is less willing to address, rather than describe with astonishment, why his arguments have been uniformly rejected even by courts with sympathetic judges. If there is a good answer even to the strong case he makes for after-action judicial review of a targeted killing—when the practical pressures for a decision are moot– that answer lies in the fundamental structure of our constitutional government.

The Drone Memos is a superb collection of materials on targeted killing. For persons interested in drone warfare, there probably are better books and drones are an interesting subject in their own right, foreshadowing the problem for states that arises when lethal surveillance technologies become widespread through the commodification of surveillance and weapons technologies.  The informational market state will treat information as the source of war matériel just as the industrial nation state turned to its industrial plant. A market state that treats its citizens as individuated consumers will have to cope with the fact that the bonds of loyalty and deference to the state are frayed when their interaction is just a matter of making transactions. Anyone interested in the subject of drones should read Drone Wars: Transforming Conflict, Law and Policy, edited by Peter Bergen and Daniel Rothenberg, or the pathbreaking work of Kenneth Anderson on this subject.

Rather this book, and its introductory essay, are about the decision to kill a suspected or confirmed militant, often distant from the leading edge of the battlefield and often by remotely manned aerial vehicles. Although this book raises questions about the morality, wisdom and lawfulness of targeted killing, none of these questions can be fruitfully addressed in the absence of some serious discussion about the strategic context in which these decisions are made, the evolution of the global threat, and the changing modes of warfare that are shaping the nature of the state.

Uniting the legal and the strategic is the hallmark of warfare in the 21st century. Anyone interested in the problem might want to spend a couple of hours viewing “Eye in the Sky,” with the estimable Helen Mirren as a UK-based military officer who remotely commands a drone operation to stop a terrorist attack in Kenya.  Art, it seems, can better reflect reality than a depiction of the world , however well-rendered, blissfully unconnected to the evolving geostrategic conflict outside the courtroom.


[Editor’s Note: Watch this space. We will publish a response from Jameel Jaffer after the weekend. And, if you are interested in reading more, see Ryan Goodman, 10 Questions to Ask Yourself When Reading Jameel Jaffer’s “The Drone Memos,” and Jameel Jaffer, Donald Trump’s Drone War]

Image: With permission from Tom Kleh 

About the Author(s)

Philip Bobbitt

Herbert Wechsler Professor of Federal Jurisprudence and Director of the Center for National Security at Columbia Law School and Distinguished Senior Lecturer at the University of Texas