Obama's Drone Policy Has No Safeguards Against Abuse

About Rosa Brooks:

Rosa Brooks is a law professor at Georgetown University Law Center and a fellow at the New America Foundation.

There are two problems with the Obama administration's drone policy. The first problem is that the process for determining who can be targeted contains no meaningful safeguards against abuse or error. According to the administration's legal logic, as evidenced in a recently-released Justice Department white paper written in 2011, any person—including any U.S. citizen—can be targeted and killed overseas if an "informed, high level official" believes the individual being targeted poses an "imminent threat of violent attack" and that capture is not "feasible."

But who's a qualifying "high level official"? What does it mean to be "informed"? What counts as evidence? On what basis is the "feasibility" of capture determined? Does "violent attack" include throwing rocks at a U.S. embassy, or is there some requirement that a potential attack pose a grave threat to U.S. national interests? And, most crucially, what's an "imminent" threat?

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On this last issue, the Justice Department's 2011 memo is particularly troubling. Both U.S. law and international law normally define the word "imminent" narrowly: You don't get to say you're using force in self defense if the threat is distant or speculative. To the Obama administration, however, the idea of "imminent threat" gets watered down until it's virtually meaningless. The Justice Department's memo asserts that the requirement that a threat be imminent "does not require the United States to have clear evidence that a specific attack on U.S. persons and interests will take place in the immediate future." On the contrary: The very absence of clear evidence is offered as a justification for strikes: "[C]ertain members of al Qaeda… would engage in such attacks regularly [if] they were able to do so, [and] the U.S. government may not be aware of all… plots as they are developing and thus cannot be confident that none is about to occur."

This notion of "imminence" is indistinguishable from the Bush administration's doctrine of so-called "pre-emptive self-defense," a doctrine Barack Obama once firmly repudiated. It's a mighty shaky basis on which to rest the lives of U.S. citizens.

The other problem with the administration's drone policy is strategic. Even if every individual targeted by U.S. drones "deserves" to be targeted, drone strikes can cause civilian casualties and have consistently sparked anti-American sentiment. It's time to ask the same question Donald Rumsfeld asked during the Iraq War: Are we creating new terrorists faster than we can kill them?

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Tags:

terrorism,

drones,

national security,

Department of Justice,

Barack Obama

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