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Reactions to Stories on Possible New U.S. Citizen Strike

Jack Goldsmith
Tuesday, February 11, 2014, 7:18 AM
Some thoughts on this morning’s drone strike news (NYT, WSJ). The NYT says that President Obama’s announcement last May of an intention “to gradually shift drone operations from the C

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Some thoughts on this morning’s drone strike news (NYT, WSJ). The NYT says that President Obama’s announcement last May of an intention “to gradually shift drone operations from the C.I.A. to the Pentagon” was designed in part “to make them more transparent.”  The theory, I think, was that CIA strikes are covert and cannot be confirmed, while DOD strikes need not be covert and in theory can be subject to open government discussion and greater scrutiny.  There have always been problems with this theory.  One is that DOD is no more transparent than CIA concerning its drone strike practices; if anything, measured by official openness and proneness to leak, it is less transparent.  A shift to DOD means a (possible) shift away from the cloak of covert action and thus makes it possible for more American openness about drone strikes, but it does not guarantee more openness – as the lack of transparency about DOD strikes since last May makes plain.  Another problem with the ostensible transfer to DOD is that, for reasons I do not appreciate, DOD seems to make many more targeting errors than CIA.  Mazzetti made this point in his book (as summarize here), and as recently as last December, an errant drone strike “carried out by the Defense Department’s Joint Special Operations Command, not the CIA” mistakenly killed a dozen people in Yemen.  (Consistent with the first point, DOD has had no public comment on this errant strike.) The NYT says that the President’s classified drone strike policy, which lays down a preference for DOD over CIA strikes, “allow exceptions if necessary.”  We should not be too cynical about this – presumptions can have bite even if they can be overcome.  (That said, there is something odd  about a debate on the front pages of the leading newspapers, all based on leaks, about classified drone policies that aim for but do not achieve more transparency.) The WSJ says that because the targeting “suspect is an American, agency officials were required under the new drone policy to submit the name for review.”  It is not clear why or how this policy is new.  By all accounts, the only other intentional strike of an American citizen, against Anwar Al-Awlaki, was preceded by extensive DOJ legal review. The WSJ also says: “Some officials believe that while a military strike has a stronger legal basis, a CIA strike would be easier to carry out in a country that won't accede to a U.S. strike.”  We have discussed this point before and I still don’t get it.  Assuming that the same targeting rules apply, including the same jus in bello scrutiny, I do not see why a DOD strike would have a stronger legal basis under domestic or international law.  Perhaps a hint lies in this statement in the WSJ: “The military can only conduct strikes in countries where the government assents.”  That statement is clearly false – Iraq did not assent in 2003, nor did Yugoslavia in 1999; and moreover, Special Operations forces operate in many countries, and DOD sometimes operates covertly.  But perhaps the statement is getting at this difference between CIA and DOD strikes: DOD will not act in ways that it believes violate the UN Charter, while the CIA will do so.  Does that mean that concerns about the differential legality of a DOD as opposed to a CIA strike in Pakistan implies that the USG lacks Pakistan consent or an adequate self-defense argument under the UN Charter, and thus thinks it would be violating international law (the Charter) in carrying out such a strike?

Jack Goldsmith is the Learned Hand Professor at Harvard Law School, co-founder of Lawfare, and a Non-Resident Senior Fellow at the American Enterprise Institute. Before coming to Harvard, Professor Goldsmith served as Assistant Attorney General, Office of Legal Counsel from 2003-2004, and Special Counsel to the Department of Defense from 2002-2003.

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