President Obama’s speech today on U.S. counterterrorism policy was actually two speeches in one. The first outlined a supposedly new, restrictive policy on drone strikes that was neither new nor restrictive. The second called for shutting down the Guantánamo detention center—not a new position for the president but the revival of a long-dormant one, unfurled in blazing colors along with a vision of a genuinely new way of approaching global terrorism.
In the days leading up to the speech, drones were assumed to be the main topic—specifically, whether and how to change the practice of using drones to kill terrorist suspects in countries outside formal war zones, namely, Pakistan, Yemen, and Somalia. These strikes have aroused intense bitterness abroad and growing controversy at home.
Early on in his speech, Obama defended the use of drones, noting that they are often the only way to kill people who are planning attacks on the United States and that, while these weapons sometimes kill innocent civilians, they kill far fewer civilians than other forms of military power, such as conventional airstrikes or troop incursions on the ground.
But then, Obama conceded that these weapons had to be subjected to restrictions, lest they be used too casually. Specifically, it had to be determined that the person killed poses a “continuing, imminent threat” against the United States; that capturing the person alive was infeasible; and that there was “near certainty” that the strike would kill or injure no civilians.
This sounds reasonable, except that these same standards were outlined—with much of the exact same language—in an unclassified 16-page “white paper” that the Justice Department released back in February. And the way that the paper defined those terms rendered the restrictions meaningless.
Key to this loophole was—and presumably still is—the definition of “imminent threat.” As the white paper put it, “The condition that an operational leader [of al-Qaida or an affiliated organization] presents an ‘imminent’ threat of violent attack against the United States does not require the United States to have clear evidence that a specific attack … will take place in the immediate future.”
So, “imminent” doesn’t really mean imminent.
The paper’s logic was this. Al-Qaida is “continually planning strikes” against the United States. “By its nature, therefore,” an assessment of its threats “demands a broad concept of imminence.” In other words, the threat of an attack is always imminent; it’s a condition, not a restriction.
Similarly, because the threat is always imminent, the Justice Department paper went on, “the United States is likely to have only a limited window of opportunity” to mobilize a raid to capture the terrorist. Therefore, it is always “infeasible” to capture rather than kill.
Obama’s (and the white paper’s) third condition for launching a drone strike—a near certainty that no innocents are killed in the attack—is a real restriction, and the Obama administration does seem to be at least trying to abide by it. According to data gathered from open sources by three private research organizations—the New America Foundation, the Bureau of Investigative Journalism, and Long War Journal—the number of civilians killed by drone strikes in Pakistan has declined dramatically in the past few years. So far this year, the estimates of civilian deaths range from zero to 11. In part, this is due to the fact that there have been only 12 drone strikes in Pakistan in 2013—which means, by the way, that there might have been, on average, as many as one civilian killed in nearly every strike.
It is hard to gauge these estimates because the administration does not release figures about drone strikes in Pakistan or how many people they’ve killed—because all drone strikes outside war zones (that is, outside Afghanistan) are covert operations conducted not by the military but by the CIA. Everything about them, therefore, is classified.