Inside Executive Branch Policy Discussions on Drone Strikes

by Kenneth Anderson

Adam Entous, Siobhan Gorman, and Julian Barnes of the Wall Street Journal’s national security reporting team have a front page article today detailing the inside debates and, as the article says, policy changes around drone strikes in Pakistan over the several months.  It is a must-read for everyone who follows drone and targeted killing policy debates, and, I’m told, reflects months of reporting.  It is not a “here-is-the-leaked-document” kind of article, but instead a synthesis of many sources and an attempt to put together an account of months of debate and policy back-and-forth over how, when, who, and with whose permission to launch drone strikes in Pakistan’s territory.  

Among other things, the article follows arguments, raised in earlier news stories, among State, DOD, the National Security Council, the CIA, and others over the weight to be given the Pakistan government’s anger over the strikes — and, more exactly, not being told in advance or being asked permission for attacking targets.  This was primarily a concern raised by the State Department, and the then-new US ambassador, Cameron Munter.  One difficulty, noted in earlier articles, was that advance warning to Pakistan sometimes resulted in obvious leaks to the targets.  But to judge by today’s piece, the permissions process has been altered to give more weight to State’s concerns:

Mr. Obama instituted an appeals procedure to give the State Department more of a voice in deciding when and if to strike. If the U.S. ambassador to Pakistan objected to a strike, for example, the CIA director or his deputy would first try to talk through their differences with the ambassador. If the conflict was unresolved, the secretary of state would appeal directly to the CIA director. If they couldn’t reach agreement, however, the CIA director retained the final say.  Since the changes were made, officials say internal tensions over the strikes have eased and agencies were acting more in concert with each other.

There were concerns expressed by other US government actors in the internal discussions.  The Defense Department expressed concern over Pakistani government anger leading to increased difficulties in using Pakistan to move supplies to Afghanistan.  Others expressed concerns over whether the program would destabilize the Pakistani government itself. Some people questioned whether, given the killing of Bin Laden, whether the whole program could be scaled back or even ended.

These concerns resulted in a high level review of the two drone programs conducted by the CIA in Pakistan.  Notably, the administration remains as firmly and strongly committed to drones and targeted killing as key elements in national counterterrorism policy as it has ever been, if not more so — in Pakistan and elsewhere.  Moreover, although greater mechanisms of consultation have been built in, the CIA retains the final say.  It is noteworthy that there appears to be no sense anywhere in the US government that there is a legal issue with the CIA conducting the strikes, despite the on-going debate among academics and others outside of the US government.

A crucial distinction — one first made public, so far as I know, by these Wall Street Journal reporters a couple of years ago — is between targeting “high value” terrorist targets, “personality strikes,” on the one hand, and so-called “signature strikes” on groups of fighters, on the other, often low level fighters who, for example, might be moving from Pakistan to Afghanistan to fight US and Aghan forces there.  The personality strikes are at the core of the US’s counterterrorism program, whereas the signature strikes are much more part of the counterinsurgency campaign — attacking safe havens, fighters who would otherwise wind up in Afghanistan, etc.  (A distinct legal debate, as Charlie Savage has reported in the Times, took place over the legal authority for engaging in signature strikes in places outside of Afghanistan and Pakistan’s border regions, such as Yemen, but it appear to have been resolved at this point in favor of a legal view that such strikes are permitted, but as a policy matter do not make sense for the United States at this point.)

Much of the policy debate within the administration seems to have revolved around the extent of signature strikes which, by their nature, attack a group of people who the US has identified as fighters, rather than individual as in a targeted killing.  Indeed, this illustrates the important point that as drone uses ramify, targeted killing is only one such use (and targeted killing, too, might be carried out with a human team; targeted killing and drone warfare only partly overlap).  Signature strikes are supposed to produce a larger number of people killed, because the people being targeted are supposed to be groups of fighters.  But the larger number of casualties raised these other concerns within the administration:

Officials asked what precautions were being taken to aim at highly valued targets, rather than foot soldiers.  “Donilon and others said, ‘O.K., I got it; it’s war and it’s confusing. Are we doing everything we can to make sure we are focused on the target sets we want?’” said a participant in the discussions. “You can kill these foot soldiers all day, every day and you wouldn’t change the course of the war.”  A senior Obama administration official declined to comment on Mr. Donilon’s closed-door discussions but said that he wasn’t second-guessing the CIA’s targeting methodology and pointed to his long-standing support for the program. The official said the White House wanted to use the drone program smartly to pick off al Qaeda leaders and the Haqqanis. “It’s about keeping our eyes on the ball,” the official said.

In the end, it appears that there is greater discussion over interagency concerns about targeting, but the final decisions remain with the CIA.  Or, as the article’s closing quote put it:

“It’s not like they took the car keys away from the CIA,” a senior official said. “There are just more people in the car.”

http://opiniojuris.org/2011/11/04/inside-executive-branch-policy-discussions-on-drone-strikes/

7 Responses

  1. Nice to see that the WSJ is doing some decent reporting, which is better than can be said for the NYT or BBC. Both have anti-death penalty lawyer Clive Stafford-Smith, who has recently decided to start talking about drones, opining illogically about drone strikes. He argues that there isn’t a war in Pakistan (wrong: the Pakistani Taliban control territory and have organized armed forces and regularly conduct attacks, making this a pretty clear CA3 NIAC), but, without noting the logical inconsistency in his statement, then says that they breach the Geneva Conventions (which, given he says there is no armed conflict, would be irrelevant). He also talks about breaching Pakistan’s sovereignty, which is fairly easily contradicted by this: http://tribune.com.pk/story/172531/wikileaks-kayani-wanted-more-drone-strikes/

  2. Well, on the reporting front – leaving aside the opinion pages – the WSJ, WaPo, and NYT all do good work.  But they differ quite a lot – the WSJ emphasizes these kind of long slog reporting projects that don’t have a single amazing memo at the heart.  But they put together the whole picture better than anyone.  People like Charlie Savage or Scott Shane have unparalleled inside access and, as with the Awlaki memo, people are willing to walk through the document with them graf by graf.  And the Post mixes those two together, and has a particularly good set of sources on the DC view of the national security strategy at issue.  I find the three lead papers complement each other’s reporting quite well in this area.

  3. Response…
    What is also interesting is the fact that last year Legal Adviser Harold Koh, in his address to the ASIL, spoke of both the law of war paradigm and the self-defense paradigm as justifying the targeting of certain members of al Qaeda in certain circumstances.
    JS : my preference regarding the armed conflict that has cearly migrated to parts of Pakistan (wherever bin Laden et al had participated, or others do participate, directly in ongoing hostilities, is that the armed conflict in that theatre of war should be considered to be an international armed conflict, since there are so many internationalizing events and aspects of the armed conflict and since whenever/wherever U.S. military personnel directly participate in fighting the U.S. and others should recognize that the armed conflict is international so that U.S. military personnel can have “combatant” status under the laws of war and “combatant immunity” for lawful confuct during the armed conflict, as well as pow status if captured.  please see http://ssrn.com/abstract=1718548  re: this and the death of bin Laden.  Yet, outside the theatre of an actual war, the self-defense paradigm operates and the U.S. can target those who are directly participating in ongoing armed attacks (DPAA).

  4. Response…
    But, Prof. Paust, extending IAC to include US operations in Pakistan (which I believe fall squarely within NIAC), would be of little use to the Americans doing most of the fighting there: the CIA. Those people would still be DPH, regardless of the conflict’s character.

  5. Response…
    Ben: yes, most CIA who directly participate in an international armed conflict would be civilian DPH’s, targetable — and would also not be “combatants” with “combatant immunity” as such.  Some CIA might also be members of the regular armed forces of the U.S. (sory, that’s secret).

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