There are a lot of books about drones. In addition to fictionalized accounts of drone use and technical manuals, numerous policy books have been written that describe drone technology, proliferation, and use. Jameel Jaffer’s The Drone Memos, is a welcome addition to the field as it provides the reader a greater awareness and understanding of not just the legal concerns surrounding U.S. drone use, but also broader strategic questions about the underlying policy and the overall efficacy of the targeted killing program.
Jaffer’s book does not provide a comprehensive critique of Obama’s overall counterterrorism strategy, but it provides a detailed, nuanced and thoughtful exploration of the legal arguments related to a key pillar of the United States’ (over)reliance on the use of drones to achieve counterterrorism objectives.
Jaffer’s book is in part a compendium – a collection of 16 documents released by the Obama administration that cover the legal and policy framework for the “targeted killing” program. These documents – which include public speeches, documents released under the Freedom of Information Act, and those released by the U.S. government as part of its normal business – do not solely relate to the use of drones, but rather touch on legal opinions regarding targeted killing more broadly. In that vein, the title of the book may be a bit misleading, but as Jaffer rightly points out: A discussion of drones is not really about the technology itself, but about the use of that technology to achieve a strategic objective, and the extent to which such use has been effective (if the public can adequately make such assessments given the lack of information available).
What makes the book most useful is the 55-page introduction by Jaffer, which offers a legally sharp, pointed critique of the Obama administration’s eight-year drone campaign. I am not a lawyer and do not pretend to have a comprehensive understanding of the incredibly specific elements of law that Jaffer describes in his book. However, the inclusion – and explanation – of the history and legal arguments made by the ACLU and others add important scholarship and value to the larger debate on lethal drone use and targeted killing.
From the outset, Jaffer makes clear the U.S. drone program is not new. Indeed, the program was entering its second decade when Jaffer’s introduction begins on February 22, 2016 with an account of a drone strike in Pakistan. The introduction chronicles other drone strikes that resulted in the deaths of terrorists, alleged terrorists, and in some cases, innocent civilians. These stories help contextualize the consequences of the U.S. hunt for terrorists using drone technology. But, rather than focusing on and documenting the deaths – both civilian and combatant – caused by the use of lethal drone strikes, The Drone Memos, in Jaffer’s own words, is about unanswered “questions about the morality, wisdom, and lawfulness of the drone program.”
At its very core, Jaffer’s book is an examination of the “lawful” undertaking of the U.S. drone program, and provides insight into the history of the cases that led to increased scrutiny over the program as well as key legal arguments faced by litigators. These include questions pertaining to the applicability of human rights law as well as questions of imminence and whether the courts should have a role to play in targeting decisions. Throughout, Jaffer carefully explains the sophisticated legal arguments that served as the basis for ACLU cases, and parallels these explanations with an equally necessary description of the legal arguments proposed by the Obama administration regarding targeted killings. He also documents the ongoing lack of public information about the program that hinders the ACLU’s ability to litigate cases.
Jaffer smartly reflects on the strange circumstances of having a constitutional law professor as president, and how that pedigree created an environment of trust even with regard to some of the most ambiguous legal justifications surrounding the U.S. targeted killing program. As Jaffer’s book underscores, the escalation of the drone program under Obama’s presidency, and the growing bureaucracy to manage the program, lends itself to further investigation. Jaffer focuses on the hallmarks of Obama’s counterterrorism campaign – such as concerns about civilian casualties, the ambiguous criteria used for identifying combatants and, by extension, the use of signature strikes to target military-aged males. He also discusses the use of so-called “double-tap” strikes that target those who may go to the aid of individuals injured in an initial drone strike, and the considerable secrecy that surrounds these types of decisions. These concerns lay at the heart of current debates surrounding the U.S. drone program, and, as Jaffer’s book illustrates, are compounded by the general lack of official information that would allow for independent reviews of the program’s impact and overall effectiveness.
Jaffer’s introduction also questions the effectiveness of drone strikes. I, personally, have never been clear on the administration’s metrics for success of the drone program, and Jaffer highlights this conundrum, saying, “If the drone campaign was ‘effective,’, it was effective only in the narrow sense that drone strikes sometimes killed their targets.” I’m willing to accept that the U.S. drone program has killed low-level operatives, and at times, senior commanders, but it has also built resentment against the United States, and served as a recruiting tool for terrorists, a stance that retired Gen. Stan McChrystal echoed in 2013 during an interview with Reuters. Jaffer quotes McChrystal saying, “What scares me most about drone strikes is how they are perceived around the world…the resentment created by American use of unmanned strikes…is much greater than the average American appreciates.”
Over the past eight years, the Obama administration has assured the public that the program is effective – we can see their statements throughout The Drone Memos, but those outside the small circle privy to classified documents are not aware of the methodologies and metrics used to measure this success. Instead, we have to rely on the administration’s own assessment. If there has indeed been an overall cost-benefit analysis of the program that’s like relying on a student to objectively grade their own work without knowing the criteria they are using to give themselves an “A.” Such opacity with regard to evaluation of the drone program holds serious implications for accountability when mistakes are made or other tactics could have proven more useful.
Jaffer focuses throughout The Drone Memos on the absurdity of the secrecy surrounding the U.S. drone program – even including pages of redacted text within the provided documents. And, although Jaffer notes the steps the administration has taken to increase transparency – such as the first official release of data on combatant and non-combatant casualties “outside the areas of active hostilities” as well as a redacted version of the policy playbook– he aptly highlights the consequences of the administration’s overall reticence to disclose pertinent information about its use of armed drones, which ultimately may undermine the program itself. It is worth noting that in early December, the Obama Administration released a report that includes details surrounding the domestic and international legal frameworks for use of military force.
The Drone Memos provides a critique of the shortsighted nature of Obama administration policies and the potential pitfalls it has created. Though the book identifies the constraints adopted by the Obama administration, the legal documents also reveal the weaknesses in the legal argument and policy framework that could allow misuse by political leaders in the future. In a particularly pointed passage, Jaffer remarks, “The question the next president will ask is not whether the powers Obama claimed should be exploited, but where, and against whom.”
Overall, The Drone Memos allows readers to trace the growing legal, political, and public debate surrounding the U.S. drone program, providing a one-stop source for much of what we know about U.S. drone use and supporting policy. Jaffer offers deep insights into the potential problems arising from the overall lack of transparency (legal, strategic, and otherwise) – a key concern and indeed defining aspect of the U.S. lethal drone program. The Drone Memos is a must-read for those interested in the U.S. drone program and the legal and policy arguments that underlie it.
Image: An MQ-9 Reaper at Joint Base Balad, Iraq, 2008. U.S. Department of Defense.