Who’s Afraid of the Kill List?

Military analysis.
June 15 2012 8:32 PM

Who’s Afraid of the Kill List?

Some may find it morally iffy. But at least Obama is taking responsibility for making the toughest decisions.

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In this sense, the disclosure of Obama’s “kill list” should be assuring. Not only are people—trained, authorized personnel—very much in control of what the drones do; in the most sensitive cases, the ultimate decision is made, in a very deliberate fashion, by the president of the United States.

Finally, there is the broader concern of whether the president even has the right to engage in “targeted killing.” The issue, as Katrina vanden Heuvel argued in a Washington Post op-ed, is “the assertion of a presidential prerogative that the administration can target for death people it decides are terrorists—even American citizens—anywhere in the world, at any time, on secret evidence with no review.” She calls on Congress to “reassert its constitutional authority” to declare war.

The questions she raises are troubling but also muddled. Congress passed a joint resolution in September 2001, authorizing the president to use “all necessary and appropriate force” against al-Qaida. For better or worse or both, Presidents Bush and Obama have invoked that authority with very wide latitude, as was intended. Congress has no further “constitutional authority” to choose or deny targets.

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As for the probity of targeted killing, regardless of which branch of government approves it, it is worth noting that President Gerald Ford issued an executive order in 1975, stating, “No employee of the United States government shall engage in, or conspire to engage in, political assassination.” This order came in the wake of hearings held by Sen. Frank Church’s committee, revealing a vast dark landscape of CIA activities in the previous decades, including many attempted assassinations.

Legal scholars have disputed whether Ford’s executive order applied only to the killing of foreign government leaders (it didn’t define “assassination”). In any case, the controversy was rendered moot in 1998, when President Clinton revised the order to allow for the death of such leaders if it resulted from a counterterrorism operation. Clinton’s aides also took to invoking Article 51 of the United Nations charter, which allows nations fairly free rein in the pursuit of self-defense. Those caveats, bolstered by the Authorization to Use Military Force, passed by Congress in 2001, leaves little doubt as to the drone strikes’ legality.

However, questions do remain about the strikes’ wisdom—and here, Congress does have a proper role to play.

First is the simple practice of oversight. I have tacitly assumed in this column that the targets on the “kill list” are appropriate and urgent targets—i.e., that they do pose a direct threat to the United States. I don’t know that, of course; nor do I expect to be briefed on the intelligence informing this judgment. But the congressional intelligence committees should expect to be. They are, by law, notified whenever the president issues a “finding”—a classified action involving intelligence agencies. Are they similarly notified when the president approves a “kill list” candidate? And can they ask for a briefing on the intel that put the target on the list? If not, they should be.

Second is the broader question of the policy behind the strikes. Are they having an effect on the war against al-Qaida? Does killing the No. 2 in Yemen degrade the organization, or does it just mean the ascension of an equally competent No. 3? Have the killings to date triggered a backlash? Ibrahim Mothana, co-founder of the Watan party, writes in an op-ed in today’s New York Times, “Drones strikes are causing more and more Yemenis to hate America and join radical militants.” Is this true? I don’t know, but it’s a question worth investigating.

David Petraeus, as CIA director, is no doubt sensitive to this dilemma. In 2006, back when he was a three-star general, he wrote in the Army’s counterinsurgency field manual, “An operation that kills five insurgents is counterproductive if collateral damage leads to the recruitment of fifty more insurgents.” Sometimes, as the manual acknowledged, it’s so important to kill those five insurgents, the risk of siring more is worth taking. Still, the gamble should be acknowledged and weighed—and not just by those tossing the dice.

Finally, what is U.S. policy in Yemen these days? According to a study released this week by Peter Bergen and Jennifer Rowland at the New America Foundation, the Obama administration has launched 20 drone strikes in Yemen just in the last three months—two more than in the previous two years. All told, drone and conventional air strikes have killed between 531 and 779 people in Yemen, 96 percent of them militants.

There is reason for this intensity: Al-Qaida in the Arabian Peninsula, which operates out of Yemen, is now seen as the center of the most dangerous operations, the locus of several attempted attacks against the United States. AQAP’s ranks are said to have swelled to more than 1,000 fighters (up from 200 to 300 just three years ago), and they control significant parts of southern Yemen. But what is the U.S. aim: to stave off attacks against the United States, or to help stabilize the Yemeni government? Obviously the two are related, and there is a contingent of U.S. Special Forces conducting counterterrorist and counterinsurgency operations. But are we getting sucked into an internal conflict in Yemen, and what are the implications—the dangers and opportunities—if we are?

After the Times published its story about Obama’s kill list, many members of Congress had only one question: Who leaked the information? It’s a legitimate question, but here’s the one they should be asking: Where is all this leading us?

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