Killing Machine (22 page)

Kilcullen and Exum were right, Coll said, to pose the issue of a serious backlash caused by the drone attacks. But the Kilcullen-Exum
argument underestimated the value drones had as a response to the political, moral, and legal obligations of any president to identify and respond to a “clear and present danger.” In short, so long as the al Qaeda network existed and had plans to carry out terrorist attacks, Obama could not overrule his generals and intelligence advisers and end the drone attacks “immediately.” Suppose he did so, asked Coll, and, “six weeks later, a manic-depressive Pakistani-American living in New York City, who happened to visit his cousins in Karachi earlier this year, decides on his own volition to walk into a New Jersey shopping mall with an automatic rifle and kills a dozen shoppers.” What would happen then? The advisers who had disagreed with Obama’s decision would immediately leak their memos supporting the continuation of drone attacks, and Republicans would once again claim that Democrats were weak on national security, starting a flap that would consume American politics once again, leaving no room for an Obama agenda.
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With its suggestion that the increased drone strikes were meant to bring closure to the mishandling of the aftermath of 9/11—a wrong war, against a wrong enemy—Coil’s response to Kilcullen and Exum stopped short of any long-term consideration of where the drone policy might take the president or his successors. He did not say that drone strikes would end after Osama bin Laden had been found, but one could certainly read here an expectation that the situation Obama faced would look very different. “To put it reductively, if Bin Laden and Zawahiri [the number two figure in al Qaeda] are removed from the narrative, Obama’s options in the region will expand considerably.”
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Coll also did not reckon with the American romance with technological fixes. Once drones were in use, there were always new uses to be found, and an eager group of defense contractors to point out where they were. As the months went by there were several obvious markers indicating the direction things were going. In early December 2009 the White House authorized a wider use of drones in Pakistan’s “lawless tribal areas . . . to parallel the president’s decision” to send thirty thousand additional troops to Afghanistan.
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Here was confirmation—if any were still needed—that drone warfare
had other missions and was aimed at improving Pakistan’s stability as much as fighting a war in Afghanistan. No one was ready to say quite yet that counterinsurgency had become a strategy without a mission, but that was becoming more obvious every day. Pakistani leaders would tolerate no American “boots on the ground,” but so long as the drones were not officially “recognized” by any party to the secret contract between Washington and Islamabad, they could be useful to both sides.

Drone warfare in Afghanistan was Pentagon-run because the country was an actual war zone. Things were different in Pakistan. Drone warfare there and in other places had to be managed by the CIA for reasons of “plausible denial.” But what had been a quiet campaign inevitably grew noisier as Pakistan’s previously “complicit” government had to state its objections in the face of public protests that would continue to grow. In an interview with a German newspaper, the Pakistani prime minister reacted with apparent concern, as if he had opposed drones all along. The strikes did no good, he claimed, “because they boost anti-American resentment throughout the country.”
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Reviewing the evolution of drone warfare, Micah Zenko, a fellow at the Council on Foreign Relations, observed that despite such disclaimers, by the summer of 2008 the CIA had become, “in effect, the counterinsurgency air force of the government of Pakistan.” When the strikes began, Zenko noted, with the permission of the Pakistan government, the targets were always non-Pakistanis, Arabs or Uzbeks. But quite soon pressure increased to attack “targets which are a threat to the Pakistani regime.”

For Zenko the problem was not merely legal but whether the spreading use of drones reduced the number of terrorists or actually caused an increasing number of active terrorists in Pakistan and elsewhere. So far there had been no national debate about drones, said Zenko. “I like to describe it in terms of U.S. nuclear weapons. I know roughly the size of the U.S. nuclear weapons arsenal, their type, the warhead lifecycles, where they’re deployed, what the military doctrine is for them.” None of these things was available for drones.
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By some estimates, such as the New America Foundation’s, one third of those killed in the strikes were “civilians”—but
the government, without officially acknowledging the existence of the supposedly secret program, insists both that the calculation was wrong and that smaller missiles and better targeting procedures had limited collateral damage.

Harold Koh’s Speech

Panetta’s almost casual comments about drones being “the only game in town” clearly were not going to be enough to satisfy critics. So the administration gave long thought to how to make a more serious effort to reconcile its positions with international law. David E. Sanger’s book
Confront and Conceal
provides the best source available on the internal debates leading to a speech by Harold Hongju Koh, the State Department’s legal adviser, about the legality of drone strikes. A “jovial liberal former dean of the Yale Law School,” Koh was the best man for the task if the administration was “going to have a prayer of convincing Obama’s liberal base.” After all, here was someone who had shredded the arguments in John Yoo’s infamous torture memoranda, and many thought he would be the perfect choice to become the first Asian American on the Supreme Court.
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Koh told Sanger, “Almost as soon as I came in I raised the issue about why we hadn’t clarified what our standards are” on drone warfare. It seemed to be taken for granted that should a standard be set forth, all but the most obdurate leftists would be satisfied. Koh’s self-designated assignment was, in effect, to be a character witness for President Obama. What he would show was how drone warfare differed from attempting to take out Fidel Castro with an exploding cigar—and how a program aimed at “eliminating al-Qaeda’s middle management” still qualified as protecting the United States from a clear and present danger.
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However, when he proposed giving the speech, there was considerable opposition from the intelligence agencies. “You can’t talk about our covert programs,” said one official. “In World War II . . . the civil liberties community wasn’t saying we want to see targeting lists of what you’re hitting. George Washington did not turn over his targeting list of the British.”
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The problem for Koh and other defenders of the drone warfare was in that last statement. Whom exactly the drones were targeting was the only thing “covert” about the drone attacks, not the false issue of where they were launched from and who was launching them. It was the key issue because there was already much uncomplimentary talk about how Obama’s determination to close down secret CIA detention sites and not to put any more suspects in Guantánamo meant drones were the only alternative left for dealing with a “targeting list” that kept extending further down the ladder of al Qaeda foot soldiers. The “targeting list” problem was often alluded to cautiously, but sometimes bluntly as the ironic result of Obama’s efforts to “clean-up America’s act” after the Bush years.
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The State Department’s legal adviser had been a skeptic about targeted killings, especially about President Obama’s decision to put an American citizen, Anwar al-Awlaki, on the CIA’s kill list in early 2010. What would be the consequences? Could, for example, the Russians or Chinese use an American precedent to take down dissidents on the streets of Washington, D.C.? Koh’s doubts were put to rest, he told Daniel Klaidman, after he was ushered into a small room where he spent almost five hours reading “stacks of intelligence” on Awlaki’s plans to poison Western water and food supplies, “as well as attack Americans with ricin and cyanide.” Awlaki’s ingenuity at coming up with plots stunned Koh: “Awlaki was not just evil, he was satanic.”
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No one else has seen the intel supplied to Koh that day, but there is good reason to believe that much of it came from a Danish double agent, Morton Storm, who now claims that he has not been given his proper due in providing the CIA with data and targeting information that clinched the ability of UAV pilots to get their man. According to an article by three Danish reporters,

for almost 10 years before this story begins, Storm was an internationally well-known figure in radical Islamist circles, known by the nickname Murad Storm. A convicted criminal who had converted to Islam, Storm visited mosques throughout Europe and the Middle East, speaking openly about the need for armed jihad.

Storm was studying, he says, in Sana, the capital of Yemen, and there met and became close to Awlaki. Storm is somewhat vague about what prompted his “loss of faith,” but one day he had had enough—more than enough, apparently—for he was prompted to call the Danish secret service and offer to infiltrate Awlaki’s inner circle. Storm was instructed to bring Awlaki various weapons from contacts in the West, which were tracked by the Danish secret service in cooperation with the CIA, eager to get hold of all this information on the radical cleric’s plots and sources of supply. “He wanted to attack the big shopping centers in the West. . . by using biological weapons. But I said that I didn’t want to take part in killing civilians—I could only agree to attacking military targets,” Storm said. “Of course I wouldn’t have helped him carry out any kind of terrorist actions. But I had to let him think that I was on his side.”
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Whether the Danish agent was the only source of the reports Koh read in that “crappy little room” under the watchful eye of John Brennan or one of his aides, or whether he was one of several sources, is not known. Nor is it likely that anyone outside the innermost circles of U.S. intelligence will soon see any of this material. But it convinced Harold Koh to put aside his doubts and give the speech.
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The occasion for Koh’s long anticipated speech was a meeting of the American Society of International Law, and his speech was entitled, “The Obama Administration and International Law.” He began by relating his long experience attending meetings of the society, and how as a young lawyer he stood in awe, like someone watching Hollywood stars arrive at the Oscars to walk on the red carpet as the famous figures he knew only by sight passed by in the halls. Now it was his turn at the podium.
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His job as legal adviser combined four roles, he said, “counselor, conscience, defender of U.S. interests, and spokesperson for international law.” He interpreted these roles to mean that his job required him to speak “lawfare to power.”
Lawfare
was a sometime dirty word in the Bush administration, especially in the OLC, where it referred to international organizations eagerly hoping to ensnare in a legal web Americans dutifully engaged in defending national interests. The great irony of lawfare, of course, was that
many of the human rights conventions that these activists wanted to use against the United States in international courts had been proposed and supported by the United States originally. He was there, Koh assured his audience, as a spokesperson for the U.S. government on why international law mattered. What followed, however, was a long exegesis on how the American interpretation of international law made room for drone warfare, including when it was used outside of recognized war zones.

Koh was addressing what had become one of the biggest worries that had emerged concerning drone warfare—that without international rules it could be turned against the United States in retaliation, or even in other ways. Was it outlandish to consider the possibility that, say, a Spanish government drone might attack a Basque separatist riding on a car on Fifth Avenue, killing American civilians and leaving a big crater in the middle of a busy Manhattan roadway? Yes, very probably it was, but there was an obvious need to get the point settled that drones could be used only in “lawless” areas—that is, places currently defined as such by American policy makers. Hence the importance of getting out in front with the backing of international law—and especially before any confrontation with the UN Human Rights Council occurred.
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Koh introduced his main topic by saying that the question was how “obeying international law advance[d] U.S. foreign policy interests and strengthen[ed] America’s position of global leadership.” In other words, “with respect to international law, is this Administration really committed to what our President has famously called ‘change we can believe in’?” Some panelists at the conference, he said, had argued there was really more continuity with than change from the previous administration. His first answer to that was that there was always more continuity than change. “You simply cannot turn the ship of state some 360 degrees from administration to administration every four to eight years, nor should you.” (An unsympathetic listener might point out, of course, that because 360 degrees is a full turn back to a starting point in a circle, Koh had just admitted that there was no difference between Bush and Obama. Presumably he meant 180 degrees.)

But, Koh said, the Obama “approach and attitude toward international law” was different from Bush’s by virtue of an emerging “Obama-Clinton doctrine” dedicated to following universal standards, not double standards. He had learned in the nine months he had been on board that making foreign policy was “infinitely harder than it looks from the ivory tower.” Government lawyers, moreover, were obligated to start with a presumption of stare decisis—meaning that an existing interpretation by the executive branch had to stand unless there was compelling evidence for a change.