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On Drone Rule Books and Breaking the Rules

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Back when we first learned that the CIA had killed an American (and an Italian) hostage in a January drone strike that also killed American, I predicted, based on posts like this and this, we would learn that Obama was never applying the rules in Pakistan because (as Jim had already pointed out) John Brennan has a way of exempting himself from the rules.

Q: 2 yrs ago, Klaidman reported it’d take several yrs to adopt drone rule book, w/PK being last. Do we know they purportedly did apply it?

And in any case, Brennan kind of exempted himself. Because moral rectitude. So very likely this is abt Brennan exempting himself fr rules.

Sure enough, WSJ reported yesterday that Obama had exempted Pakistan.

Mr. Obama in a 2013 speech at the National Defense University spelled out some rules governing drone strikes, which he codified in a “presidential policy guidance” directive.

Among them were that the threat needed to be imminent and that the U.S. had to have “near-certainty” no civilians would be killed or injured. Officials said the directive also included language aimed at curbing and eventually eliminating a particular type of drone strike in which the U.S. believes an individual is a militant, but doesn’t know his identity.

These so-called “signature” strikes have been responsible for killing more al Qaeda leadership targets than strikes directly targeting high-value leaders, especially in Pakistan, where the group’s leadership can be difficult to find, current and former U.S. officials said.

The Jan. 15 strike that killed Messrs. Weinstein and Lo Porto was a signature strike.

Under a classified addendum to the directive approved by Mr. Obama, however, the CIA’s drone program in Pakistan was exempted from the “imminent threat” requirement, at least until U.S. forces completed their pullout from Afghanistan.

The exemption in the case of Pakistan means that the CIA can do signature strikes and more targeted drone attacks on militant leaders who have been identified without collecting specific evidence that the target poses an imminent threat to the U.S. Being part of the al Qaeda core in Pakistan is justification enough in the Obama administration’s eyes.

This has led people to note that you simply can’t trust what the Executive does via Executive Order or Presidential Policy Guidance, as in this Daphne Eviatar post that goes onto to talk about secrecy generally.

But we’ve known all along that the president’s statement in his 2013 speech was just a policy preference. It was never an actual limitation on the use of drones, or more importantly, on the use of lethal weapons to kill suspected terrorists.

Since Obama has proven untrustworthy in his 2013 PPD on drones, we should assume he has kept similar secret exemptions under PPD-28, which purports to rein in surveillance.

You should never trust a President Order to mean what it says because the Executive has self-exempted itself from honesty.

Which leads me to what I noted the other day. On top of the tragedy of Warren Weinstein’s death, I still think the circumstances of Faruq’s targeting are … suspicious.

Particularly given that the last confirmed head of OLC, Virginia Seitz, left quietly at the end of 2013 because — anonymous sources suggested to Carrie Johnson — she was unwilling to authorize the drone death of some American(s).

Two other sources suggested that aside from the tough work, another issue weighed heavily on her mind over the past several months: the question of whether and when the U.S. can target its own citizens overseas with a weaponized drone or missile attack. American officials are considering such a strike against at least one citizen linked to al-Qaida, the sources said.

A law enforcement source told NPR the controversy over the use of drones against Americans in foreign lands did not play a major role in Seitz’s decision to leave government, since the Office of Legal Counsel is continuing to do legal analysis of the issue and there was no firm conclusion to which she may have objected or disagreed.

Particularly given the hoops the White House is jumping through regarding precisely what they were targeting, given the fact that they appear to be claiming they’ve only confirmed Faruq was an al Qaeda leader, this appears to suggest DOJ had a lot of disagreement over whether some of these men could be targeted.

Or who knows?

Maybe OLC has subsequently approved what I’ve dubbed the Sitting in a Baddie Compound authorization for executing Americans?

The “Sitting Next to a Baddie” American Death Authorization Has become the “Sitting in a Baddie Compound”

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As Jim laid out, yesterday President Obama admitted that we killed two hostages, including American Warren Weinstein, in a drone operation in the Af-Pak border in January. In that same strike, we killed American citizen Ahmed Faruq, though he was not specifically targeted, Administration sources assure us. We also killed Adam Gadahn in an apparently unrelated strike, though we weren’t targeting him either, Administration sources assure us.

But I want to point to something rather remarkable in the language the Administration used yesterday to discuss this.

For years, the government has used the rationale that if an American is “sitting next to a baddie” then he becomes acceptable collateral damage in a drone strike.

That’s the rationale they gave when they killed Kamal Derwish in 2002: they were not targeting Derwish, they were targeting Abu Ali al-Harethi, but Derwish — far more threatening to the US at that moment because of his presumed role in recruiting Muslims in Lackawanna, NY — just was unlucky enough to be sitting next to him.

That’s the rationale they gave when they first missed Anwar al-Awlaki on December 24, 2009, a day before the government decided he had gone operational but at a time when Pete Hoekstra was making his continued existence an embarrassing issue for the Obama Administration. The Administration hadn’t been targeting Awlaki, they explained, they were instead targeting Nasir al-Wuhayshi and some other AQAP leaders, and Awlaki just happened to be present.

That’s the rationale they gave when they killed Samir Khan. He just happened to be sitting in the car when the CIA finally scorched Awlaki.

And that’s the rationale they gave when they killed Abdulrahman al-Awlaki: They weren’t targeting him, they were targeting Ibrahim al-Banna, though al-Banna turned out not even to be present.

That’s the rationale they gave, years later, when they admitted to killing Jude Kenan Mohammed: he was killed in a signature strike targeting the group he was in as a whole.

Never mind that in a number of these cases — the first Awlaki strike and the one that killed his son — there’s reason to believe they were specifically targeted. Never mind that in the case of Derwish and Khan knowing insiders wink winked that the government knew full well they’d be killing these men too when they struck the other target. The excuse has been — with the exception of the pursuit of Anwar al-Awlaki — that they were targeting another person (another known person, with the exception of the Jude Mohammed strike), and the American just happened to die as collateral damage.

But yesterday, that rationale changed.

Now, the government wasn’t so much targeting a person, but a compound, something that Josh Earnest was quite insistent on in his press conference yesterday.

Q    Thanks, Josh.  Let’s start just with some of the facts of what happened, to the extent that you can discuss them.  How many other people were killed in these two strikes, either local civilians or militants?

EARNEST:  Josh, I won’t be able to provide specific numbers on this.  I can tell you that in the specific strike that resulted in the death of Dr. Weinstein and Mr. Lo Porto, there was one other al Qaeda leader who was among those that was killed.  That is the — Ahmed Faruq, the American citizen al Qaeda leader.  This was a strike against an al Qaeda compound, and the result was the death of at least one al Qaeda leader.

I can tell you that the assessment that we have right now does not raise questions about additional civilian loss of life. Again, the reason for that is that the standard that was in place and, to the best of our knowledge, was closely followed by our counterterrorism professionals was to adhere to this near-certainty standard.  And that near-certainty standard applied to two things.

The first is near certainty that this was an al Qaeda compound that was used by al Qaeda leaders; that turned out to be true.  That assessment did turn out to be correct.  The other near-certainty assessment was that no civilians would be harmed if this operation were carried out.  Unfortunately, that was not correct, and the operation led to this tragic, unintended consequence.
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Brennan’s Addiction to Signature Strikes Killed Weinstein

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The US insists that the deaths of hostages Warren Weinstein and Giovanni Lo Porto were a “mistake”. Both the New York Times and Washington Post open their articles about the drone strike that killed them with descriptions couched in the language of error. The Times:

The first sign that something had gone terribly wrong was when officers from the C.I.A. saw that six bodies had been pulled from the rubble instead of four.

And in the Post:

After weeks of aerial surveillance, CIA analysts reached two conclusions about a compound to be targeted in a January drone strike: that it was used by al-Qaeda militants and that, in the moment before it was hit, it had exactly four occupants.

But as six bodies were removed from the rubble, the drone feeds that continued streaming back to CIA headquarters carried with them a new set of troubling questions, including who the two other victims were and how the agency’s pre-strike assessments could have been so flawed.

Consider that for a moment. Despite all the blathering from John Brennan about “near certainty” in his infamous drone rules (whose legal basis the government still steadfastly refuses to release), we are dealing yet again with deaths of innocents from a signature strike. In those strikes, the US kills without knowing precisely who the targets are. Instead, the US claims that the pattern of activities by those targeted match those of terrorists intent on striking out against the US. The more cynical among us note that there is hubbub over this strike merely because the innocents who were killed happen to be white instead of brown. But the outcome is the same: making the decision to kill based on incomplete evidence that doesn’t even include the actual identities of those in the crosshairs is bound to result in the collateral deaths of many who are not enemies of the US.

Recall that John Brennan made a power grab in the spring of 2012 to take charge of ordering signature strikes when JSOC told the White House that such strikes were not needed in Yemen. And, of course, Brennan immediately started using this tool as a political cudgel as well as the strategic weapon it was believed to represent. But let’s go for a moment to a part of Greg Miller’s Washington Post article linked above:

The deaths of the hostages follow other recent developments that have revealed divisions among the CIA and other agencies over whether to capture or kill a U.S. citizen.

Muhanad Mahmoud al Farekh was recently arraigned in a U.S. court on federal terrorism charges after he was captured by Pakistan and secretly flown to New York. His arrest raised questions about the frequency with which the U.S. government asserts that capturing terrorism suspects is not feasible. The CIA had been pushing to kill Farekh for more than a year before his arrest, current and former U.S. officials said.

Isn’t that interesting? It appears that Farekh was on CIA’s list of targets it would like to have killed in a targeted strike, with part of the justification for killing him being that it wouldn’t be feasible to capture him. And yet the Pakistanis did capture him. And that development points out an even bigger problem with the decision to hit the compound where Weinstein was killed: that compound is in the southern part of North Waziristan. Recall that Pakistan’s offensive to clear the tribal areas of terrorists began last June. See the map embedded in this post where I discussed the beginning of the offensive. Weinstein and Lo Porto were being held in the Shawal Valley, which is at the very southern end of North Waziristan. Miram Shah and Mir Ali, two of the hottest targets for US drone strikes sit in the central part.

Just a little more patience on the part of Brennan and his signature strike shop might have led to a very different outcome. In November, Pakistan’s military claimed that 90% of North Waziristan had been cleared of terrorists. And in the very same week of the strike that killed the hostages, Pakistan noted that the Shawal area was slated for clearing:

During a journalists briefing here, about the current visit of Chief of Army Staff General Raheel Sharif to Britain, he said operation Zarb-e-Azb was continuing successfully in North Waziristan and many areas including Mir Ali, Mirshah and Dattakhel were cleared of terrorists, many of whom were killed and arrested and their infrastructure was destroyed.

In these troubled areas, militants had set up infrastructure, training and call centres and they were making phone calls to people in other parts of the country for ransom, he added. Before start of the North Waziristan operation, Pakistan informed Afghanistan and International Security Assistance Force (ISAF), so that they could take action against terrorists who cross over the border.

Operations were continuing along the border areas with Afghanistan, with whom Pakistan had improved its relations and both countries were sharing intelligence, he added. He said in the next few months the remaining areas including Shawal would be cleared.

Although Pakistan’s military is not particularly noted for protecting citizens during these clearing actions in the tribal areas, it still stands out that Weinstein and Lo Porto were killed in Shawal on January 15 and Pakistan announced on the 18th that Shawal was next up for clearing. Would Pakistani forces have rescued the hostages? We will never know.

Even worse, Brennan was supposed to have stopped signature strikes in Pakistan. Returning to the Times article:

The strike was conducted despite Mr. Obama’s indication in a speech in 2013 that the C.I.A. would no longer conduct such signature strikes after 2014, when American “combat operations” in Afghanistan were scheduled to end. Several American officials said Thursday that the deadline had not been enforced.

Brennan will never give up his prized signature strikes. Greg Miller does note, though, that this strike was one of the last ones for “Roger”, who headed the counterterrorism center and was Brennan’s right hand man for signature strikes. But I’m pretty sure that we can count on Brennan to get Roger’s replacement up to speed on his prized tool very quickly.