How much of drone warfare should be kept secret? The boundaries shifted a bit this week: On Monday, the Justice Department memo justifying the killing of Anwar al-Awlaki, a U.S. citizen and alleged al-Qaeda operative based in Yemen, was released by federal court order. And on Thursday, an expert bipartisan panel released a report criticizing the secrecy of President Obama’s targeted killings and warning, as The New York Times summarized, that the use of drones “risks putting the United States on a ‘slippery slope’ into perpetual war.”
The al-Awlaki memo, major parts of which have been redacted, offers some insight into the government’s conclusion that Fourth Amendment and other protections did not protect al-Awlaki from a lethal attack. In its reasoning, the memo employs the recurring language of “continued and imminent threat.” This apparent “imminence” standard, as critics have noted, is scarcely elaborated on or analyzed. In an attempt to understand its origin, Benjamin Wittes points out that because of the specific features of al-Awlaki’s case, the standard “is not there because of constitutional separation of powers, international law, or the constitutional rights of the targets.” Its “very surprising” source, he speculates, is a “presidential covert action finding”—which means that although “imminence” therefore applies to executive branch actions, it is ultimately “not legally required but purely a prudential policy requirement even with respect to U.S. citizens.”
This conclusion—perhaps more disturbing because it is speculative—buttresses Rosa Brooks and John Abizaid’s argument that “much more [information] is needed” about the al-Awlaki strike and the drone program more generally. Brooks, a former counselor to the Undersecretary of Defense for Policy, and Abizaid, a retired Army General, both served on the panel that released Thursday’s report. In the Washington Post, they write:
The government should make public the approximate number and general location of U.S. drone strikes; the number of people known to have been killed and their organizational affiliations; and the number and identities of any civilians killed. In addition, Obama should create an independent, nonpartisan commission to review lethal drone strikes and should transfer responsibility for strikes from the CIA to the military.
These recommendations, Brooks and Abizaid note, would help bring much-needed transparency and accountability to the Administration’s targeted killings. Otherwise, the U.S. has little justification for challenging the use of drones by countries whose devotion to human rights is, shall we say, more suspect. “Now, imagine the future,” Brooks and Abizaid write: “Suppose Russian President Vladimir Putin decided that a few drone strikes in eastern Ukraine would be just the thing to eliminate some particularly irritating critic of Russian policy.” In response to U.S. complaints, Putin could simply claim that “Russia targets only terrorist combatants who pose an imminent threat to Russia”—while insisting that, of course, the highly sensitive intelligence establishing that imminent threat could naturally never be made public.
It’s important, then, that the Administration craft more transparent and demanding standards for the use of drones. The release of the Justice Department’s memo was a step in the right direction, but it’s no substitute for a systematic evaluation of the program’s procedures, safeguards, and accountability mechanisms. And for the simple health of the body politic, we need to have a far more open discussion of the circumstances (if any) which justify the government’s use of a drone attack against one of its own citizens. As Heather Hurlburt recently noted in these pages: “Until the United States, Israel, Iran, and the other 73 nations can agree on a shared set of rules, the public justifications the United States makes for targeted killings will be the closest thing the world has to a standard. It is then profoundly in the United States’s own security interest for the rules to be both limiting and clear.”