Officials said Mohammed’s uncertain future should not obscure what they see as significant and aggressive changes in national security policy, including banning interrogation methods that the administration deemed torture, establishing interrogation units, using unmanned drones to kill hundreds of enemy fighters in Pakistan, and articulating a legal basis for using those drones.
Let’s put aside the interrogation stuff for a moment. On the drones, we’ve gotten the assertion that they’ve killed hundreds of enemy fighters in Pakistan. The New America Foundation’s tally of the drone strikes estimates that 30 percent of drone-induced casualties since 2004 are civilians. (Obama accelerated a program that the CIA began under Bush. If the Obama team is claiming credit, then the Bush team deserves its due.) Looking at the hatred and fear they generate in the tribal areas of Pakistan, the next generation of militants may in fact be the children of those slain by drones.
And the administration has not, in fact, articulated a legal basis for using the drones. In March, the State Department’s legal adviser gave a speech asserting that the strikes are legal, not demonstrating why they are. The closest that Harold Koh came to articulating his case was to say: The administration doesn’t intentionally kill civilians (“…attacks [are] limited to military objectives and that civilians or civilian objects shall not be the object of the attack…”); it tries to be proportionate (no “attacks that may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof”); and that in any event the Authorization to Use Military Force covers the strikes. (“These domestic and international legal authorities continue to this day.”)
Exactly nowhere in Koh’s speech do the criteria emerge for determining when the administration would cross into illegality in drone targeting. (Thirty percent civilian casualties? What about forty? What about fifty?) We do not know what legal justifications the Justice Department’s Office of Legal Counsel has developed about the drone program. In March, ACLU sued to acquire those and any other justifications; the administration is fighting the disclosure. (A disclosure of my own: My fiance — yes, I’m getting married — works for the ACLU’s Washington office.)
When we see those documents — documents the Obama administration does not want you to see — then we can say the Obama administration has articulated a legal basis for the drone strikes. Until then, all we can say is that Obama, a former constitutional-law professor, insists that we should take his word that his drone program is legal.