PrintPrint EmailEmail ShareShare CiteCite


Assessing U.S. Drone Strike Policies

Speakers: Jameel Jaffer, Deputy Legal Director, American Civil Liberties Union, Michael E. Leiter, Senior Counsel to the Chief Executive Officer, Palantir Technologies; Former Director, National Counterterrorism Center, and Micah Zenko, Douglas Dillon Fellow, Center for Preventive Action, Council on Foreign Relations; Author, Reforming U.S. Drone Strike Policies, Council Special Report No.65
Presider: Karen J. Greenberg, Director, Center on National Security, Fordham Law School
March 1, 2013
Council on Foreign Relations



KAREN GREENBERG: So welcome to this afternoon's conversation, "Assessing U.S. Drone Strike Policies." We have a wonderful panel here today. I will introduce them very briefly. You can read about them more in your packets. I'm going to begin with introducing Micah Zenko, who wrote the report on drone policies for the Council and I recommend that you all read it. It's a wonderful beginning point for understanding the basic questions that are circulating around this topic these days. He is the Douglas Dillon fellow here in the -- in -- at the Council on Foreign Relations.

Our next guest is Mike Leiter. Mike Leiter, I'm sure you all know, he is the former director of the National Counterterrorism Center. He is now senior counsel for the CEO at Palantir Technologies.

And finally, I should say last but not least, Jameel Jaffer, who is the deputy legal director at the ACLU.

I want to just have a few introductory comments about what we're going to be talking about today. I welcome members here, members across the country, members elsewhere around the globe that are listening and we will take their questions and your questions afterwards, but I want to begin today by just giving you some outlines of what we'll be talking about.

The first thing is that this drone policy, targeted killings, the drone strike policy began in terms of the war on terror under President Bush, but it was a very low-level program which escalated exponentially under President Obama.

If you listen to Lindsey Graham, it's resulted in 4,700 deaths. If you listen to others, including Micah Zenko, he will say it's over 3,000. Whatever it is, it gives you a sense of the ballpark that we're in.

This policy has been done, to some extent, rather covertly and only now is the American public beginning to debate it. The issues surrounding it are legal, moral, philosophical, and I don't think we're going to get to all of them today and not to mention strategic in terms of American security.

But we're going to try our best to get to them. So I want to start with Micah Zenko and I want to ask a question that comes out of your report. And we'll have many iterations, so just -- you know, you don't have to do the whole report in one thing, but my question to you is how different is drone strike policy from just warfare? We target enemies. We know who they are. We use military means to kill them. So why is the drone policy -- or is it -- so different?

MICAH ZENKO: Well, the distinction is -- to go back to -- briefly in history to compare it to other types of warfare, which is we -- the United States has armed drones specifically to deal with the issue of finding Osama bin Laden. In August, 1998, the United States put 75 cruise missiles on bin Laden's camp in southern Afghanistan and missed him and all of his senior cohorts. And at the time, the military believed they needed four to six hours advance notice of wherever bin Laden would be in order to locate, fix, and potentially kill him.

In order to limit that, what they call find-fix-finish loop, the Clinton administration directed the CIA to develop a means to do this. And they decided on putting what was essentially an anti-tank helicopter missile on an existing surveillance drone. Fifteen years later, this has become sort of what I call the default -- in many sense the default counterterrorism tactic of the Obama administration and it's in many ways the face of U.S. foreign policy.

Now, it's important to understand that drones are different from other types of weapons platforms on three particular ways. One, they can persist over a target forever. And when you talk to people in the sort of spy and strike world, they describe the ability to park over neighborhoods as police on the beat would in the Bronx to watch for a very long time. Manned, fully armed Predator drones can (remain ?) over a platform for 14 hours. Unarmed can maintain over a platform -- over a piece of geography for 40 hours.

The second is the responsiveness. So before you needed four to six hours to know where somebody would be to target them. Now, it's within seconds, right? I mean, when you attach the strike to -- the strike capability to the surveillance platform, you collapse that find-fix-finish loop.

And the third obvious reason is that it does not put U.S. personnel at risk of being captured or killed, and subsequently, what was originally a technology to find bin Laden has now been used -- there have been something like 415 targeted killings by the United States in non-battlefield settings. Over 95 percent of these are by drones because of the inherent advantages that drones provide.

GREENBERG: OK. Jameel, a lot of the criticism about the drone policy, which I think you now have a logistical overview of, as well as the issue of the amount of collateral damage or U.S. troop deaths, but what -- would you distinguish between the process by which the decision to use a drone strike is made and the actual policy? Or would you see them both together and have some moral or legal questions about them?

JAMEEL JAFFER: Well, I mean, I think the issue isn't drones. It's what the administration is calling targeted killing. There was an interview with John Rizzo in Newsweek, about 18 months ago. John Rizzo is a former acting general counsel of the CIA. And he said to Tara McKelvey, the journalist, he said, you know, the Predator drone is the weapon of choice, but it could as easily be a bullet to your head. And I think that that is an evocative way of explaining that the issue isn't drones. It's targeted killing.

Now, that said, I think you're asking a slightly different question. You're asking about the substantive rules of government targeted killing, versus the process by which we decide who gets killed. And I think that those are both -- they both have civil liberties implications or human rights implications.

You know, right now, we don't know who is making these decisions. If you read The New York Times, it's President Obama who sits at the head of this pyramid and makes the decisions about targeted killings. If you read the white paper that was leaked to Newsweek a couple weeks ago, the white paper says something quite different. The white paper says that the decision to kill is made by an informed high-level official, which doesn't sound like the president. It could be the president, but it could be many other people as well. But this is a -- you know, it's -- obviously it's a consequential decision, the decision to kill somebody, including perhaps a U.S. citizen. And we don't know who is making that decision. I think that that in itself is a civil liberties problem.

And then even if you sort of accept, you know, even if you assume that one day we'll have transparency around that particular set of issues, you know, what the process is within the executive branch, who it is that makes these decisions, even if you assume that one day we will know these things or be told those things, there's a separate question about how broad the government's authority is or should be to carry out these killings.

And as you mentioned, you know, we've already had at least 3,000, maybe as many as 5,000 of these killings over the last decade, mostly in the last five years. These killings are taking place in many different countries. Just at the John Brennan hearing a couple of weeks ago, Mr. Brennan was asked, you know, in which countries are you carrying out these killings and he refused to say. You know, this is -- again, it's a far-reaching policy. I don't think it needs -- I don't think I need to spend a lot of time explaining that killing people, including U.S. citizens, is a consequential act. We ought to have a lot more transparency than we do right now.

GREENBERG: Mike, I want to turn to you. You've seen this from both sides, from inside the government, from outside the government, and you've written about it using the word "realistic," and I read your writing as also having the notion of pragmatic. I'd like you to talk a little bit about why you think this is a realistic way to go forward and what you think -- have you thought about or do you want to address the issue of potential consequences in terms of diplomacy blowback and things like that?

MICHAEL LEITER: Sure. I want to start -- because it might be the last time I get to with agreeing with my good friend Jameel -- (laughter) -- on what he said, which is drones are a tool. It is the targeted killing which is the real issue. And you know, there are practical differences, advantages that drones give you which might make it more or less likely, but you still have to do the same sort of substantive and procedural analysis of whether or not that sort of killing is the right thing to do, whether it's a drone or another tool.

I do think that the current approach is a realistic one. And I was writing that mostly in the context of the more specific conversation, which really is an extremely narrow exception to the broader drone issue about targeting U.S. persons, with that specific issue being the extent to which there is or is not judicial review before or after the sort of imminence that might be required. And in that sense, I think it's a very realistic and pragmatic approach, which is one need not have specific information about a specific plot that is being led by a senior operational leader before you target that person. I think that's quite realistic.

In terms of how it fits into the broader policy, the point on which I will disagree with Micah -- I don't think Micah quite meant it this way, but for purposes of getting some disagreement going early on, I'll assume you did mean it this way -- which is, I think it's incorrect to say that drones or targeted killings are the default CT policy. I think that drones are the default CT offensive element of a broader counterterrorism strategy and policy, but I think they have to be very integrated -- part of an integrated cohesive whole, and you must, of course, consider not just the domestic consequences, but the international consequences of using targeted killings in a variety of places. But I do think it is an appropriate, realistic and critical part of the offensive tools that we use in counterterrorism strategy.

GREENBERG: Micah, is that what you meant? Did you mean to say that it was -- or did you mean to put as much burden on it as you did in terms of "the" tool of counterterrorism going forward?

ZENKO: Well, every senior civilian and military policymaker will tell you in any setting you can't, quote, "capture" or kill you way out of the problem. It has to be integrated in a more comprehensive strategy which deals with the underlying issues which give rise to the problems of terrorism and extremism in various areas. The issue that I've sort of learned, though, is that drone strikes, as I always say, suck the oxygen out of the interagency debate about doing other things. And if you talk to the individuals in Pakistan and Yemen who work for the State Department and USAID, who are trying, to -- for example, the Consul General's Office in Peshawar -- who are trying to build schools on behalf of young girls to, for the first time in their life, have education, you know, drones are the face of U.S. foreign policy. And they're the first, second, third, issue that is raised.

Now, the U.S. ambassador to Pakistan, when asked about drone strikes and when asked about the worst sort of myths and misperceptions that exist about them, can't say anything about them, right? And so I agree that they should be closely coordinated and set within an embedded comprehensive strategy, but it's hard to find evidence that that's the case in some countries. And the individuals who would be doing the oversight of that, for example, the Senate Foreign Relations Committee, the House Foreign Affairs Committee, have never received a briefing on targeted strikes.

And they're supposed to be doing oversight of all U.S. foreign policy and they can't.

GREENBERG: Right. And it's one of the things you point out in your report and I think it's a very strong point. What about -- we talk about transparency. We talk about oversight. All of you have. What about the idea of a drone court, either a drone court that's separate within the judicial system, or something as Neal Katyal suggested in the New York Times last week, a drone court that is somewhere located within the executive and populated by National Security Council members. What about that, Jameel?

JAFFER: Well, I think that the idea of judicial review is a good one and I'm glad that there now seems to be fairly widespread agreement, I think, that there should be some form of judicial review of targeted killing policy. The question of where that judicial review should take place, I think, is a complicated one.

You know, we already have in the federal courts, we have cases in which judges evaluate the government's use of lethal force. Even the domestic context, right, if somebody's running down the street, waving a gun around, the police don't go to a judge beforehand to seek a warrant. But after the fact, sometimes there's a wrongful death claim brought, and the judge evaluates whether the government acted lawfully in using lethal force.

So it's nothing new to have judges ask that question after the fact. Nor is it new for judges to ask that kind of question in the national security context. If you think of cases like the Guantanamo cases, which are now in the D.C. District Court or in the D.C. Court of Appeals, those are all cases in which the government is asked to present its evidence on the basis of which it's detained somebody at Guantanamo Bay, and judges evaluate whether that evidence is sufficient or not.

So this is nothing new. There is something, I think, obviously insufficient about after-the-fact judicial review, because by that time, you know, in some very basic sense it's too late. Right, you've already used lethal force and if the lethal force was used impermissibly or unwarrantedly, it's too late to fix it. But on the other hand, if you really believe, as I do, that the government's use of lethal force should be limited to truly imminent threats, then prior judicial review isn't feasible. By definition it's not feasible to go to a judge beforehand.

So after-the-fact judicial review, for all of its problems, is the only thing that really makes sense. And if that's what makes sense, we have courts already that can engage in that kind of evaluation. We don't need a new, you know, kill court that is specially constituted to issue death warrants. We don't need anything like that. We've already got courts that can do this job.

GREENBERG: Mike, do you want to say something on that point?

LEITER: I totally agree with Jameel. Just kidding. (Laughter.) First of all, the question was generally broad, was broad, and I think the first issue would be, are we talking about courts for when the U.S. targets U.S. persons or targets anyone overseas in the context of the AUMF, the authorization for the use of military force.

The easy case to me is targeting non-U.S. persons under the authorization for the use of military force, which I would find and I think any president that I can foresee in the next 100 years would find significantly problematic from a separation of powers perspective. I think there is a significant amount of judicial precedent from the Supreme Court on down about why that is the case, why courts are at their weakest in the context of military decision-making and national security. Not that they might have no role, but it's very, very narrowly tailored and these are questions for the political branches.

Now, if you move towards the more specific case of targeting U.S. persons, I certainly understand, because this is such a narrow area, why it might be more attractive. I actually am not sure that the constitutional issues, although they might be a little bit harder, become so hard that you need court involvement. And I think, again, practically, there're significant problems. Although Jameel's point about after the fact review rather than ex ante review makes it slightly more attractive. And I think my argument would be, there might well be cases where people have standing to challenge something after the fact; I don't want to preclude that in every case; but I do think that any sort of ex ante review by a court would be practically problematic, constitutionally infirm, and maybe, most importantly, politically would be a terrible step away from political accountability and where it should lie, which is an executive branch which is executing the law and a congressional branch which is conducting oversight through the authorization of use of the military force and their power of the purse.

GREENBERG: Jameel, do you want to comment and do you also want to comment on the idea that it doesn't matter which president that -- how we're protecting ourselves of the kinds of powers that President Obama has claimed for himself in this realm?

JAFFER: I think you've already made that point now. But you know, on the -- you know, on the earlier points. So I think it's a little bit difficult to separate the judicial review question from the substantive standard question because if you accept, again, that the standard is true imminence, the government can use lethal force -- outside actual battlefields, the government can use lethal force only against truly imminent threats. Then, again, judicial review -- prior judicial review is infeasible by definition. But the administration's position right now is actually much broader. The administration's position is we can use lethal force, even if there is no immediate threat.

We can use lethal force against people who present continuing threats of some kind. And even if we can't identify some specific plot. I don't accept that statement of -- that claim of authority and it's not a claim of authority that is accepted in international law. And thus far, no domestic court has sanctioned that. But if you do accept that claim of authority, then I think it's much harder to explain why a judge shouldn't play a role beforehand. Why a judge -- if there's time, why a judge shouldn't evaluate the evidence before it's too late to -- you know, you can't resurrect somebody who's been killed by a drone unlawfully or on the basis of evidence that turned out to be wrong. I think that the debate has been driven by the Anwar al-Awlaki case. And Anwar al-Awlaki is an unsympathetic -- an unsympathetic poster boy for civil rights and civil liberties in this context.

But you have to think about how the next president -- maybe this is the point you wanted me to make, Karen, but you have to think about the --

GREENBERG: Suggesting.

JAFFER: -- the way that another president might use this power, because this power will be used by future presidents and it'll be used in future wars against enemies we can't even imagine right now. And you need to make sure that there are structures in place to prevent against that kind of abuse. And right now, there are no such structures.

LEITER: So a couple of things. First, with respect to Anwar al-Awlaki and being an unattractive poster boy. The reason that he's the only poster boy is because how narrowly this is phrased and how narrowly it's been applied. But there's been one American --

JAFFER: Four Americans, one was --

LEITER: No, no, no, no, hold on. Hold on. One who has been targeted under the policy. Three others who have been killed, but as I've written, if your standard becomes you can only launch a strike if you know there are no Americans there, that's very different from having a substantive standard when you can go after one American who's operational commander, is involved in plotting, and you don't have reason to believe that there are other Americans there.

So one's about collateral damage. One is about who you're actually targeting.

The second piece, though, which I think is really important, is this is -- it would be unheard of to limit the president's authority in fighting a war which the Congress has conducted extensive oversight of. Don't accept my word on that. Accept Chairman Dianne Feinstein, you know, conservative Democrat from that liberal -- you know, conservative bastion of San Francisco, who has said, when the white paper came out, that the administration has provided to the Congress extensive information, in this white paper and other contexts, to allow them to do probing oversight of lethal targeting.

Now, I understand from a traditional -- or traditional the past 20 years of being a lawyer, why we equate oversight with judicialization, but the two are not the same. And oversight of the executive branch is also critical to associate with the Congress. And for the past 10-plus years, the Congress has had an authorization to use the military force. They could have modified that. They could have restricted it. They could have withdrawn it. Not to mention the Congress could have not given the executive branch money to buy drones, to buy Hellfires. And we can say, well, they just don't get it. They don't understand it. But the fact is that Congress has been intimately involved in all of this and Congress has continued to provide the tools and the approval, the legal approval for the administration to conduct this policy.

JAFFER: Ten seconds. So I just want to state Mike's position more clearly. (Laughter.)

Mike's position is that the president should be able to order the killing of anybody, including a U.S. citizen, without ever presenting evidence to any court, without ever explaining his actions to the public, and without even formally acknowledging that the government has carried out the killing. One of the American citizens who was killed --

LEITER: That's flatly false. (Laughs.)

JAFFER: All right, well --

LEITER: Go ahead.

JAFFER: One of the American citizens who was killed in Yemen was a 16-year-old kid. He's Anwar al-Awlaki's son, but he was killed in a separate strike two weeks later -- two weeks after Anwar al-Awlaki was killed. So far, the Obama administration hasn't explained why that killing took place. It hasn't offered any of the -- any explanation for its targeting of somebody else, if that is indeed the reason that this 16-year-old was killed, and it hasn't even acknowledged that it was involved in the killing, although everybody knows that it was.

In court, the administration's position is the CIA's role in the targeted killing program can't be confirmed or denied. And I think that this is -- you know, I think it's an outlandish position that the president should be able to carry out that kind of killing without even acknowledging that he is responsible for it.

I mean, Mike is big on political accountability rather than judicial accountability. But if the president can carry out these killings in secret, how is there going to be any political accountability?

GREENBERG: OK, we're going to leave that part there and leave that for the discussion. We're going to move on to something with Micah -- sorry --

LEITER: Wow! (Laughs.) That's OK.

GREENBERG: No, because I think that the sides are forcefully made and you're going to have a lot -- I'll make sure you'll have a lot of time in the Q-and-A. But I want to turn to a whole other issue, so that we're not just caught in this particular and important back and forth, and that is, Micah, one of the points you make in your paper is about what happens when drones, Predator drones, targeted killing mechanisms get into the hands of others, state and nonstate actors. And I'd like you to elaborate a little bit on how you see this as a realistic possibility, what you think the threat is, and why you decided to focus on that.

ZENKO: Well, I mean, because as we learned in the case of Bush and the Obama administration is that drones lower the threshold through which civilian policymakers will decide to use military force outside of borders, undoubtedly. The United States would not have attacked Pakistan 350 times with manned aircraft or with special operations forces. So drones are distinctly different.

Now, the number of countries that have drones has almost doubled, from 40 to 75 from 2005 to today. The number of actual programs have more than quintupled. Arming a drone is harder than you think, so the number of countries who have this capability is still quite limited. The United States and perhaps Israel, the only countries to ever use armed drones outside of their territory. But it is inevitable that other countries will use this. And as you saw, last week, the Chinese debated using, not quite a drone, it's actually a loitering cruise missile, by essentially slamming 20 kilograms of TNT into a drug kingpin who was hiding out in Burma. And they would be perfectly willing to do so under the justification precedence which the United States has set.

Now, President Obama, John Brennan, all the senior policymakers have said repeatedly that we are setting precedents that other countries will follow, right. And if other countries adhere to the U.S. position, which unfortunately is that, you know, as was mentioned, the U.S. says everyone who is targeted is a senior al-Qaida operation leader, significant threat to U.S. homeland.

Well, al-Qaida was never that top-heavy an organization. The truth of the matter is many individuals the U.S. kills -- just as the U.S. in Vietnam in 1965, expanded the air war to Cambodia -- in 2008, President Bush, as he says very explicitly in his memoir, authorized the lowering of who could be targeted in Pakistan in 2008. So similar thing in Yemen, where the Yemeni minister of defense, after individuals are killed, will come out and say they were wearing suicide vests. They were setting up roadblocks outside of military outposts. They were right to be targeted. And as I always say, unless they were getting on an airline to come to JFK, they were not imminent threats to the U.S. homeland.

So the problem is that the U.S. justification and precedence, which is so murky and the justification doesn't align with how they're actually operationally conducting strikes, if other countries follow that and if other countries also decide not to provide the sort of transparency, self restraint, or engagement in terms of explaining who they target, as the U.S. refuse to do to the Human Rights Council and over 10 years of U.N. investigators, that would be a world which is harmful to U.S. interests in many ways.

GREENBERG: And do you see, following up on that, that some kind of international regulatory regime would be necessary for -- or useful? I mean, how do you go about limiting those -- the spread of Predators? Is there a way?

ZENKO: Well, the Missile Technology Control Regime, which is the standing body of law 34 countries assigned, has a specific limit on 300 kilogram, 500 kilometer for drones themselves. And the U.S. adheres to this pretty strongly. Israel's not a signatory. Good news is Israel and U.S. own two thirds of the drone market and will for quite a long time. And as long as Israel and the U.S. doesn't sell armed drones to other countries, it will limit the proliferation of who has these capabilities.

But adhering to MTCR and updating it is a must-do. Limiting who we provide armed drones to is a must-do. And you saw last week that the United States, after the United Arab Emirates, who's been asking for Predator drones, armed Predator drones since 2004, we've now agreed to provide them with unarmed drones, which cannot be modified to carry weapons and have end user certificates to do that. That's a good thing. But the primary thing the U.S. has to do is essentially do what it says it does because that then limits strikes to the issues and necessity distinction, proportionality, which we want other countries to emulate.

GREENBERG: One final question or line of questioning. Mike, one of the things that President Obama came in and talked about was no longer using the term "global war on terror." But does the drone targeted killing policy allow this essentially to initiate or reaffirm a global war on terror by allowing so many more countries to be targetable, not using troops on the ground, not having to commit troops on the ground? Where would you make a distinction?

LEITER: I think President Obama's elimination of the use of "global war on terror" was appropriate in that he was -- I think appropriately so -- trying to not focus on the global aspect of al-Qaida, but to focus on the individual elements of al-Qaida and make clear that we couldn't approach all of this in the same way through large invasions and the like.

Now, I agree with Micah. The fact that you have drones allows you to use force, offensive force in more places than in a world where you don't have drones. But I don't think that that -- I don't think that requires you to continue to fight everywhere all the time. You have to fit that into your strategy about where you think you need offensive tools and how you use them and use them in a tailored way.

GREENBERG: One final question and then we're going to turn to the members. How do you -- the panel is "Assessing U.S. Drone Strike Policy." Do you see this policy as something that can be pushed back upon so that it would someday go away or do you think it's here to stay?

JAFFER: Well, I mean, I think that the use of drones is here to stay and probably the use of drones to carry out killings is also here to stay. And you know, maybe I should have said this right at the beginning, but you know, I don't take a sort of categorical position against the use of drones to carry out killings. I think there are circumstances in which the government has the authority to do it and arguably, there are circumstances in which the government has a responsibility to do it. But I think it's -- those circumstances are extremely narrow and we all have an interest in ensuring that outside of, sort of, hot battlefields, those circumstances remain narrow. And I think that the rules we're putting in place now, which even the Obama administration concedes will be rules relied on by future administrations and by other countries -- those rules don't actually constrain the president from doing very much.


ZENKO: I'd just add that this administration, part of its reform efforts going back the last 14 to 16 months have been because they are tremendously worried about externally imposed constraints on how they conduct targeted killings. Just as the Bush administration lost the ability to do extraordinary rendition, torture and wireless wiretapping or had constraints on how they do it, which they claimed both presidential executive right to do in secrecy and they claimed were essential to defending the homeland -- they lost the ability to do these. And this administration worries about that to a large extent, too.

The United States cannot conduct these operations unless we have the support of host countries and nearby bases to fly them out of. The drone strikes we do in Yemen, we fly out of Saudi Arabia and the Seychelles and Ethiopia. The strikes in Pakistan, we were kicked out of our Pakistani bases in 2011, we fly them out of Afghanistan. If other countries decide to limit where we can fly strikes out of or as the government of Algeria's doing with some of the surveillance missions in Mali, if they decide to limit overflight rights, it puts constraints on how we do this.

And so if more and more countries kick us out of bases, limit overflight rights because of international pressure, just international opposition to this, that would constrain how they do that. And that's part of the issue is to be more transparent, to put this on a more firmer footing.

LEITER: So I basically agree with Micah. I think that's a very important point, but there's a flipside to this because the common understanding is that the U.S. flies drones wherever it wants and drops Hellfires wherever it wants, be damned the views of the government in which those Hellfires are landing. And that is patently false.

Now, those governments may not stand up publicly and say, thank God the U.S. is doing targeted killings. But I think it is fair to say -- in fact, I know it is fair to say -- that the U.S. very much respects international sovereignty, which also draws a significant distinction between the issue you raised with China and Burma and what people often fear about occurring with the Chinese launching Hellfires here in the United States, going after --

ZENKO: But the Obama administration does say that they do not require permission to conduct these strikes in ungoverned -- where a country is unable or unwilling to do the strike, they do not need their permission.

LEITER: That is -- I am not disagreeing with that as a theoretical matter.

GREENBERG: Theoretically it's time for your questions. So it's time for member questions. So please wait for the microphone. Remember to stand up, state your name, speak clearly, and be short, sweet, and to the point. So let's start here.

QUESTIONER: Steven Cass (sp). Let me say how offensive I find the focus on American citizens. And I can understand why the world feels that there's a different standard that we are seeking. And even in your conversations, it seems implicit. Don't you think we ought to be formulating a standard that would be applicable to every nation, whoever -- suppose Iran had drones and were sending them over here -- and shouldn't we be focusing on a procedure, transparency, and accountability that would be applicable to everybody, regardless of who the victim is?

LEITER: No, actually, I don't. I actually think that U.S. persons -- I think there might be a baseline. I think there needs to be a baseline of transparency, understanding, substantive rules, process for making those decisions. I tend to think that the rules we have now are quite good at that. I do think there actually ought to be a higher standard, probably substantively and also procedurally for the targeting of a U.S. person because of their constitutional rights.

So I frankly would still maintain a distinction between those two, although clearly on probably both those fronts, my standards would be lower than what Jameel would do.

JAFFER: What we've argued in court is that the substantive law is exactly the same for American citizens and for everybody else. It comes from international human rights law: When the use of force is outside than actual battlefield context, the law is exactly the same whether you're targeting a U.S. citizen or a non-U.S. citizen.

It gets a little complicated because of the way that constitutional law is developed in the United States. It's much harder to walk into court on behalf of a non-U.S. citizen and invoke the Fifth Amendment in a case, you know, involving a drone strike abroad. And so the legal debate inside the United States has really been driven by these cases brought by the family members of U.S. citizens. But as to the substantive law, I totally agree with you that the law is exactly the same. And I think that in the long run, the United States has an interest in ensuring that the law is exactly the same.

LEITER: It is worth noting the Supreme Court does not think the standards or the process has to be the same. And that's pretty well established.

GREENBERG: Other questions. In the back, over there, right here.

QUESTIONER: Chandrakant Pancholi from Overseas India Weekly. If we declare that this is a military tool and put it under military control, will it change the debate? And why not -- because this is the best tool that the United States have without putting forces on the ground to attack enemies. And this is not an airline (travel ?) that we want to have international regulations. And about civil casualties, in every war, we have civil casualties. When they attacked World Trade Center, we lost 3,000 civilians. So what is the alternative that you can give us to control these drones?

ZENKO: Well, what you laid out is the Obama administration's false dichotomy that they often present, which is you can either do a Normandy D-Day invasion or you can do drone strikes. That counterterrorism requires a certain amount of kinetic force. And if you -- once you accept the kinetic force must be applied, drones become the more attractive tool to doing that.

The issue of who has oversight of the strikes is actually one that is very seriously being debated in the relevant congressional committees right now, which is whether or not, under Title 50 authority, which these are covert operations where U.S. role cannot be acknowledged or defended or justified in any way, whether or not it would make more sense to shift them to military authority.

Now, the reason that CIA has a drone -- armed drone program is a total artifice of history. You go back and you talk to the individuals who armed the capability, you read the 9/11 Commission reports, it was essentially the military didn't want the tool. They didn't want to pay for it. It was a bureaucratic fight. They didn't want to be the ones who pull the trigger. And the CIA just wanted to get bin Laden more. That was -- it was a directed mission to the Counterterrorism Center of the CIA.

I don't necessarily know if it will deal -- reform the issues of transparency and oversight because Joint Special Operations Command, which is a sub-unified command of U.S. Special Operations Command, is also an extremely secretive organization. Its special military units are not even acknowledged in any way, but it's certainly something that people are thinking about seriously, because you can acknowledge traditional military activities that are conducted by the military, but you can never acknowledge what the CIA does.

LEITER: I want to disagree a little bit with the caricature that the Obama administration thinks -- you know, invade or drone and if it's drone, it's secret or it's covert, rather than clandestine. I don't think that's the case. Having been involved in many of these discussions, it is a constant point of discussion about which organization should pursue something. And I think there are real reasons why you want to maintain a covert, read CIA, capability versus a less covert, just a clandestine military capability.

Now, I will agree on one point. I think there are actually significant advantages having more of this occur through military forces because it might force some nations that want these things to happen to stand side-by-side with the United States and actually be much more open about that. And you would mitigate some of the negative effects of more covert attacks using drones.

So I think you probably want to have both a military capability here and a more covert capability. And we probably have over the past 10 years, in my view, relied too much on the covert piece and more of it should be more overt.

In terms of judicial -- or congressional oversight of the two, in many ways, covert action gets more rather than less scrutiny by congressional committees in much of what the Department of Defense does. And certainly in terms of maintaining budgets and the like, the Congress is equally able to limit those funds if they approve or disapprove with one of the programs.

ZENKO: I would just add that the -- to build on that point is that the distinction between how the CIA conducts in its procedures and the military are very different. I mean, we know how the military plans and conducts and debates and considers operations. You can find it in joint doctrine. It's Joint Publication 3-60 Joint Targeting. It has -- it lays out the fundamentals of targeting, legal principles. It has an appendix which deals with collateral damage method estimation, which is how do they limit collateral damage when you conduct air strikes, conduct them with the military. We have no idea what procedures the CIA has, how they do these operations. And so if we want to put the best face forward for how we conduct these, it makes more sense to make them under DOD authorities.

GREENBERG: But Micah, what about the reporting? What about the reporting to Congress and how that's different between the CIA and the military and how that affects your balance here?

ZENKO: Right, so the reporting to the Armed Services Committee is actually quite recent. It was as of March 31st, 2012. There are now quarterly reports to the relevant committees and subcommittees. They get quarterly briefings and regular sort of oversight of how they conduct them. The strikes that happen -- now, very interestingly, Representative Mike Rogers, the head of the House Permanent Select Committee on Intelligence said that I -- he said, I oversee every civilian and military strike, no matter who conducts them, all counterterrorism strikes. And if you talk to House Armed and Senate Armed Services Community staffers, they say I don't know what he's talking about. (Laughter.)

So there is still an absence of clarity over who is supposed to be overseeing which missions. But there is sufficient mission -- my issue with some of the strikes the way the strike oversights are described is sort of oversight through a soda straw, which is post-hoc examination of strikes, where you can determine whether or not civilians were killed. You can look at collateral damage estimates. The larger discussions about how these fit into counterterrorism strategy are often missing in some of those discussions.

LEITER: If the point is that Congress lacks good strategic oversight, broad government --

ZENKO: Of everything, yeah.

LEITER: -- I concur entirely.

ZENKO: Of everything.


QUESTIONER: Thanks, I'm Sam Rascoff. You know, the way we have this conversation about drones is typically pits tactical success against strategic liability. So I wonder if Micah and Mike in particular could weigh in on the question of strategic success. Have drones been strategically successful?

ZENKO: Well, the question is whether or not you -- what the objective is, right, and the objectives of how these tool is used is different in different countries, right? The objective of drone strikes in Pakistan, because the individuals we're killing are not imminent threats to the U.S. homeland -- I mean, most of them wake up every day, they want to impose some degree of Sharia law where they live; they want to fight defensive jihad against the Pakistani army; they want to kill U.S. service members in southern Afghanistan. That's what they -- that's what motivates them. To some extent, it's been successful, but it hasn't really limited the extremist threat from the region at all. And that is only done through non-military tools. But it does dampen it. It makes it much harder to conduct operational plots. I mean, you read the -- bin Laden's writings and you saw the al-Qaida tip sheet about how to avoid drone strikes. It makes planning and conducting operations significantly harder. So it's very successful if that's strategic objective.

If it's to protect the U.S. homeland, it's quite interesting how everyone has forgot why -- how and why 9/11 has happened. There's this notion that if a safe haven emerges anywhere in the world for a couple of hours, individuals there can then plot and attack against the U.S. homeland. I mean, the reason 9/11 happened was because poor homeland security, poor flight security, lack of cooperation, sharing, all the other things that protect the U.S. homeland that have been fixed, thankfully, keep the U.S. homeland from getting struck.

So if you only focus on the safe haven issue, you're missing the sort of calculus of whether or not you achieve the strategic objectives, but it's very good at killing people. And as Obama says, 22 of 30 senior al-Qaida operational leaders have been removed from the battlefield. All but Osama bin Laden were killed with drones.

GREENBERG: Yes, but as you point out in your report, the Obama administration has also been quite clear about the growth of al-Qaida --

ZENKO: Yeah.

GREENBERG: -- around the world and the fact that these drone strikes, to Sam's point, have not necessarily quelled the -- al-Qaida enough to be able to say that we're in a different place and a different time.

ZENKO: According to official U.S. government estimates, the size of al-Qaida in the Arabian Peninsula in Yemen has grown from, quote, a few hundred, to a few thousand in the course of about 18 months.

LEITER: That's a very simplistic term and I'm sorry, actually, the U.S. government used it because it's really not addressing what I think the two strategic goals are for all of our counterterrorism policy: the destruction of al-Qaida as a cohesive, sophisticated enemy and the protection of U.S. interests globally, in particular in the homeland. I take those as the two strategic goals I was trying to accomplish with NCTC.

I completely agree with you that drones will never be sufficient to achieve those strategic ends. Without drones, I would say we would be far, far, far farther from achieving those two strategic ends than we are today. And both in Pakistan and in Yemen, and to some extent, also in Somalia drones have played absolutely critical roles in not just disrupting current ongoing plotting, but also significantly diminishing the ranks of al-Qaida so they can launch sophisticated attacks against the United States. As you said, bin Laden said it best and bin Laden saw this.

So you can't do it alone, but without that, it would provide them with a freedom to operate which I think absolutely would pose a far more significant threat than we see today. And the fact that we have al-Qaida affiliates and elements in Mali -- I don't want to diminish the tragedy of losing four Americans in Benghazi. I don't want to diminish the tragedy of the raid by Belmokhtar's guys in eastern Algeria. But fundamentally, compared to what we faced in 2001, with an organization that was able to launch sophisticated attacks to kill 3,000 people, an organization that was, you know, methodically moving towards an improvised nuclear device and using -- testing chemical and biological weapons, that is small stuff. And we're never going to completely eliminate al-Qaida, but the strategic threat we face today really is, in my view, significantly diminished and drones have a significant part in it.

GREENBERG: Jameel, do you want to enter into this calculus, wherever you want to enter into it, but also, do you want to enter into it the longer-term strategic goals and what this could mean in terms of what many have written about under the rubric blowback?

JAFFER: You know, I was a little offended that Sam didn't direct this question to me. Thank you.

You know, so I just want to make a couple obvious points. So one is if -- to the extent that the administration's defense of this program is, look, this program has been responsible for killing 22 or 30 senior al-Qaida leaders, that's not a defense of this program. This program is responsible not just for the deaths of those 22 people, but for the deaths of 4,500 other people or 4,000 or whatever the number is. And so you have to -- you know, that's not -- it is not really engaging the arguments on the other side because nobody is arguing that, you know, against people who are senior al-Qaida leaders, who present imminent threats, of course the government can use a lethal force if necessary. The question is, is this program actually narrowly tailored to that problem?

And then the other thing is, you know, I'm not an expert on this question of is al-Qaida growing and for what reasons it's growing. But I don't think you need to be an expert to understand that nothing is more likely to swell the ranks of terrorist organizations than the perception that the U.S. is indifferent to the loss of civilian life. And right now, there is that perception. And that perception comes not from fables invented by human rights groups, but it comes from the statements of the administration itself.

If you listen to Cameron Munter who's the former ambassador to Pakistan, just a couple of weeks ago, he was complaining that the CIA defines a lawful target to be any male between the ages of 20 and 40. This comes from the ambassador who was part of the program in Pakistan. And there was a similar statement in the kill list story that The New York Times put out last year. And so you know, that's just to say that -- I think that answers both the sort of strategic question and just this narrower -- this narrower question about how to evaluate the drone program. If -- well, I'm just repeating myself, but if the argument is it's responsible for killing senior leaders, that is not an argument that is a defense of this program.

LEITER: You know, I just want to -- Karen -- I basically agree with Jameel on this. We're not in disagreement that it is critically important the program is used in a way that people understand it. He wants greater transparency (than I do ?), that people understand it domestically and internationally. And is used in a way that you really are targeting important people, rather than low-level fighters and that you're doing it consistent with the laws of war, reducing the likelihood, to the great extent possible, of collateral damage. No disagreement at all on that point.

GREENBERG: Interesting. Over here. Wait for the microphone. It's awesome.

QUESTIONER: Lucy Komisar. I'm a journalist. Following up on that, I've been reading some interesting articles about something called network analysis. Apparently, there were people along those networks of individuals, not really necessarily al-Qaida leaders, but they may be somehow connected to one group, then maybe they're just delivering grocery or maybe they are cleaning the house, but they go from one group to another. And if it's found that somebody is in a network that touches various of these different groups that are considered bad groups, one doesn't have to know what that person is doing, but to somehow disrupt the groups, that person is targeted. Can you talk more about that, particularly Mr. Leiter, and then some of the others, and how does that affect what you've just been talking about, whether we should be going after the real bad guys?

LEITER: The basic idea of network analysis is you have to understand the network that you're attacking. And in this case, the network you're attacking is al-Qaida and the affiliates. Now, I can't tell you that there's no possibility that someone who's sort of involved with 20 people in al-Qaida but not actually a member of al-Qaida might not get caught up in a strike. But in terms of targeting them, they shouldn't be.

There is collateral damage. You have to try to minimize that and you want -- the only way you can actually target those individuals is if they are a member of al-Qaida or an affiliated organization and not just because they are wondering around with the same group of people.

But I mean, I think as a matter of realistic approach to this, there are civilians and collateral damage in a war. And we are fighting a war. And we're fighting a war in places like Afghanistan and Iraq -- or not anymore in Iraq -- and other places, because that's where the enemy is. And that is what the Congress authorized the president to do, in my mind.

GREENBERG: Mike, can you just clarify a question that I think is underlying a couple of the questions from members, and that is, we keep using the term "targeted killing" and "individuals." But there's been a lot of writing about the fact that these targeted killings are not about individuals, but are about areas where individuals who are assumed to be part of the al-Qaida network congregate. In other words, signature killings. And while it may sound like it's very specific, when you actually read what it is, it's not about targeting an individual, which is different than collateral damage. And I just -- can you clarify that for people?

LEITER: I can clarify some of it. Some of it is appropriately still classified and I don't talk about that stuff because I don't want to go to jail. But you really have three things. As you described, you have targeting individuals. This is something that we've been quite open about in the Bush administration and the Obama administration. It's knowing who the person is and going after that individual.

You then have signature strikes, which are not targeting an area, as you describe, but understanding a set of characteristics that consistently identify individuals as being associated with al-Qaida. Now, that's going to be involved in who those people are communicating with, how they're behaving, where they're operating, what they're doing when they're operating. But you still have -- you have intelligence that they're associated with al-Qaida. You just don't know that it's Bob Smith of al-Qaida. You may not know the person's name at all. That is a signature strike.

And then you have collateral damage. And collateral damage can occur in either one of those two previous ones, when you're targeting an individual or you're targeting via signature. Collateral damage is what you have to avoid. I think Jameel would say that signature strikes, if they're done properly, can be consistent with the laws of war, but my take is that he doesn't think that they are now. I do think, consistent with what Micah said, that the administration should be clear about how any of these strikes and all the rules about collateral damage, no matter who is doing them, are consistent with the laws of war, and are -- (custom or ?) international law and treaty obligations.

GREENBERG: Micah, I want to ask you a question about the collateral damage. Because one of the things you point to in your report and one of things reporters have focused on is the lack of believable statistics out there, both in terms of look at the discrepancy in terms of numbers of deaths and then the numbers in collateral damage are, depending on which news service you listen to, vastly broad. How do you assess -- any of you -- where we are in terms of statistics and how can we analyze without actually having trust in those statistics?

ZENKO: The key thing is the methodology you choose. So when Dianne Feinstein famously said the number of civilians who have been killed in the last (successive ?) years is single digits, someone then asked her, are you referring to signature strikes. And she said, I don't know if that's included. Right, so if you don't include signature strikes, then it might be true that single-digit civilians were killed. But the signature strike methodology makes it difficult to know.

Now, John Brennan famously said in 2011 that there were zero instances of collateral damage. It was later qualified to say, within the previous year there'd been no known instances. And then people pointed out obvious instances there were. There are also Pakistani NGOs who say 90 percent of everybody killed are -- should be counted as civilians.

Somewhere in there the truth lies. But it's impossible to know. It was interesting to me, though, that Lindsey Graham, who was the first government official to ever give an estimate of how many people he killed -- were killed, he said 4,700, which is the highest estimate that anyone has come up with. And as -- and he said, these have been very effective. We killed 4,700 people. As a case of how effective they are, they can kill a lot of people.

But the data that I use, which just looks at the three known NGOs, Long War Journal, TBIJ, and New America Foundation, and the estimate is that, if you take the median average of all of them it's about 13 percent of everyone who's been killed is a civilian. And that percentage has diminished over the last several years as the strikes have become more precise.

GREENBERG: (Got it. ?) More questions. Right here.

QUESTIONER: Hi, Matthew Nimetz. If we try to look in the future and abstract this just a matter of law, international law, and we think -- and we follow the procedures that you all say, but we assume also that the Russians dealing with the Chechnya groups follow the same procedures and focus on individuals and signature people, and the Turks dealing with the Kurdish insurgents do the same, and the Chinese with the Uyghurs and Tibetan groups do the same, and other countries also have their -- the Spanish with the Basques and the others.

We posit a world where everyone is following international law, but you'd have a lot, a lot of drones flowing around a lot, a lot of countries taking out a lot, a lot of people, a lot of collateral damage. And these are Uyghurs might be in Denmark. These Kurds might be in Sweden. Some of these Chinese might be in New York. Tibetans might be in India. Indians would be doing it to Pakistani and Islamic groups. And everyone would be following the right procedures, but we'd have a world with a lot, a lot of drones flowing around killing a lot, a lot of people with a lot of collateral damage.

Do you see that as a problem? And -- (laughter) -- I'm speaking as a lawyer who can accept all the legal -- you know, all these legal rules. But we have to always think that what works for us has to work for other people, too, and then what type of world system do we have?

GREENBERG: So I guess the question is is this containable? I think it gets back to one of the things we raised about Micah's report. And so why don't we start there. Is it containable?

ZENKO: I'd just add one point. The administration makes your point all the time. They say -- President Obama and senior officials say all the time, we need to really think about how we're doing will be emulated by other countries. What normative influence can we have on other people who use this technology?

And the key question is -- I would look specifically at the -- for 10 1/2 years, U.N. investigators have asked the Bush and the Obama administration three specific questions which they have refused to answer. One, which gets to the issue of do countries -- do the countries where the strikes occur provide a -- provide their permission, because that's a key -- it goes back to the 1944 Chicago Convention. That's a key thing to have on the public record.

The second thing they've asked is what international body of law applies. The Obama administration refuses to say what international body of law applies. When they're asked is it human rights law or is international humanitarian law, they say they are, quote, "reinforcing and complementary," which is obviously a shell game to not be placed under either one of them.

And the third question, which U.N. investigators have asked for 10 1/2 years, is what procedures do you have in place to mitigate harm to civilians and to take corrective actions when you do those? If I was the Obama administration, I would address those three issues in a public forum to the various U.N. investigators who asked them, which are the same sorts of questions the U.N. investigators ask every country in the world and hopefully other countries would follow the policies we put forward.

GREENBERG: Mike, do you want to comment? Is it containable? You foresee a world of drones just flying around at will without any deterrence?

LEITER: No, I really don't. It's not impossible, but I think it's unlikely. And the key point really is the first, which is whether or not sovereign nations are allowing this to occur in their environment. And without getting into this in detail, I think you should accept that as outlined in the DOJ white paper, the administration only believes that they can do these things if a nation gives its permission or there's an imminent threat and the nation is unable to actually -- or unwilling to pursue the target. And I will tell you that the first applies a hell of a lot more than the second, which one might imagine, oh, I don't know, East Africa, where there is no government in Somalia until recently.

So I think that's a significant limiting factor.

GREENBERG: Jameel, you want to comment on containability and what it looks like from the point of view of law?

JAFFER: Sure. Yeah, well, you know, my principal concern isn't sovereignty. It's individual human rights. And you know, I think, maybe another way to ask the question which you just asked is -- or anyway, a closely related question -- is just to ask how -- whether we would have to react differently now, whether our government would have to react differently now to the kind of killing that took place in London, a few years ago, where the Russians killed -- was it Alexander Litvinenko -- by poisoning his sushi, right?

You know, at the time, everybody was up in arms about that killing, everybody called it murder or used words of that kind to describe it. Would we be able to react the same way today? Or the killing that took place in Washington, 30 years ago, of -- Orlando Letelier? I think it's Pinochet, right, the Pinochet regime had him assassinated in Washington, D.C., and we prosecuted the people who were responsible for it, saying that they had violated not just international law, but domestic law, domestic criminal law. How will we respond to acts like that in the future? And I think it's obvious that the way that we are carrying out this drone war right now has pretty fundamentally compromised our ability to react to events like this.

LEITER: So now I get my 10 seconds of interrupting.

GREENBERG: Yup, you do.

LEITER: Because let me restate what Jameel would say if he were right, which is no difference whatsoever for the very point I just made about sovereignty. No difference whatsoever about how the U.S. can criticize those under international law and U.S. domestic views on international sovereignty.

GREENBERG: And on that note, please join me in thanking our panelists. (Applause.)






More on This Topic


Don't Just 'Do Something'

Author: Micah Zenko
Foreign Policy

Micah Zenko says, in the aftermath of the attacks in Benghazi, President Obama faces tremendous pressure to "do something" in response, but...