US Policy on Target Killing

WHO can’t America kill?

The answer, as a matter of law, is simply unknown right now. That is an extraordinary thing, arising out of the new tactics and technology in use in the American offensive against terrorists and their networks.

For the news media, it should be intolerable that the question goes unanswered. Yet, by the ground rules of press and government interaction now in place, the government opts not to say and the press, including The New York Times, is pushed back on its heels.

The question was brought into sharp focus on Sept. 30 when a C.I.A. drone killed Anwar al-Awlaki and three others in a remote part of northeastern Yemen. Mr. Awlaki, a fiery propagandist for Al Qaeda who allegedly had been involved in several terror plots, was apparently the first American citizen targeted for killing by the United States. After the drone strike, The Times and others lit up with accounts of the event, and unnamed government officials poured forth with comments. There was no mistaking the administration’s eagerness to put its antiterrorism success on display. Within hours, even President Obama was commenting, albeit elliptically, on the manner of Mr. Awlaki’s death.

Yet there remains no clear accounting of the legal principles or the process the executive branch is applying to support secret killings by the C.I.A., which carries out strikes far from the battlefield — in this case against a native-born American. The C.I.A. will not even acknowledge that the program exists.

The administration invokes secrecy to shield the details while simultaneously deploying a campaign of leaks to build public support. For The Times, and its peers, this dynamic is beyond awkward: it gives the appearance that the government is manipulating them.

This scenario can only get worse as the United States, moving to pull conventional military forces out of Afghanistan, comes to rely ever more on covert operations like the C.I.A. drone strikes in the region.

The Times says it is investigating all corners of the story, despite the administration’s resistance to providing key information. “We cannot force the government to become more public about this program,” said David Leonhardt, the Washington bureau chief. “But we can ask tough questions and do good reporting. We’ve done both and plan to do more.”

It is true that The Times has done good work, pressing the administration with Freedom of Information Act requests and publishing stories like Scott Shane’s Sept. 30 article on the legal question, as well as an Aug. 11 article challenging administration claims of zero civilian casualties from drone strikes in Pakistan in the previous year. Looking ahead, though, I believe that cracking the government’s silence, specifically on its legal rationale, should be a high priority for the paper.

“How can the U.S. government have rules that spell out when it can use lethal force, even against a U.S. citizen, and not let the rest of the citizens know what those rules are?” Jane Mayer, who has written about the drone program for The New Yorker, said in an e-mail to me. “The press ought to be able to get access to and describe the legal opinions that govern this program. As we saw with the torture memos, which eventually leaked, legal reasoning can be extraordinarily revealing, and important.”

Getting such access may not be easy, but pressure from The Times and critics of the government’s approach could force the administration’s hand. And there is no shortage of critics, from multiple points on the political compass.

Kenneth Anderson, an American University law professor who told me he is a “centrist conservative” on national security issues, said he supports the use of drone technology for counterterrorism but cannot abide how the administration is handling the program publicly.

“One area in which I have been relentless in criticism of the Obama administration has been their refusal to say anything about it, and at the same time essentially conducting the foreign policy of the U.S. by leaked journalism,” he said. “I just don’t think that is acceptable.”

The dissonance has carried into the courtroom. Hina Shamsi, who heads the American Civil Liberties Union’s National Security Project, said the A.C.L.U. has tried twice in federal court — unsuccessfully — to force the government to disclose its legal rationale for the targeted killings and to provide information about collateral damage, which is hard for reporters to obtain in the dangerous, remote places where drones are used.

“The government has refused to provide a detailed legal justification for the program through the courts and to the public, even as government officials make off-the-record and unverifiable statements to the press claiming specific strikes are legal or that civilian casualties have not occurred,” she said. “This undermines both real transparency and the rule of law.”

John O. Brennan, the president’s top aide for counterterrorism, gave a speech last month at Harvard Law School offering a broad outline of the case for using military force against Al Qaeda away from the battlefield. In the question-and-answer period that followed, a questioner ambushed him by asking point-blank: “Does the C.I.A. have a drone program?”

While Mr. Brennan struggled to suppress a smile, he said, “If the agency did have such a program, I’m sure it would be done with the utmost care, precision …” and the next part was garbled by the laughter of the audience.

It can’t be good when the government is reduced to playing coy over such a serious matter. So it is incumbent on The Times to do everything possible to pierce the veil — not to expose operational details that would jeopardize national security, but to force accountability over issues like the legal rationale and civilian casualties.

But what can it do that it hasn’t done? The answer is simply: more and better. Barry Sussman, editor of the Web site NiemanWatchdog.org, suggested the drone program is worth its own beat, which could include on-the-record examination of civil liberties questions, military effectiveness, relations with other nations, Congressional oversight, budget and other facets.

“Solid reporting on these issues could enhance press credibility, countering what might be lost by accepting background briefings,” he said.

The Times says, and with some merit, that it is doing all this. But the fact remains that the government’s exuberance in talking — strictly on its own terms — about the C.I.A. drone strikes is a provocation that must be answered.

The public has a right to know, and assess, the legal rationale for these extraordinary and highly visible state killings. The public should have documented details concerning civilian casualties of the drone strikes. And The Times should do all it can to force this information out into the open.

The New York Times

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