Targeted Killing: Drones

Thoughts on the Brennan Profile

By Jack Goldsmith
Thursday, October 25, 2012, 10:36 AM

I agree with Bobby’s analysis of this morning’s Washington Post profile by Karen DeYoung of John Brennan, and would add these thoughts:

Eliminating CIA’s Drone Capacities.  Count me as skeptical that we will see drone targeting capacities moved out of CIA and exclusively into the hands of JSOC.  First, the CIA loves this stuff and has been successful; it will fight hard – with the assistance of many on the intelligence committees – to hold on to drones.  Indeed, Greg Miller reported last week that the CIA was seeking a “significant expansion of the agency’s fleet of armed drones.”  I see the Brennan profile, in combination with last week’s story, as the public face of an internal dispute, and I doubt the dispute will be resolved with the CIA losing its drone capacities.  Second, some countries will insist on covert action as a condition for consent.  If (as today’s story suggests) a desire to end deniable strikes is behind the contemplated shift in drone strikes from CIA toward JSOC, I think the insistence on deniability by the governments of the places into which we are firing missiles will be a large constraint on that move.  (Of course the USG can insist on no covertness as a condition of the strikes, but it is unclear if that strategy will permit it to have the same range of targets.)  Third, unless there is a new and broader AUMF, the underlying authorization for targeting ever-growing extra-AUMF threats in more and more countries will increasingly come from Article II, not the AUMF.  And while Article II targeting does not entail reliance on Title 50 as opposed to Title 10 authorities, I think the White House will more often want to rely on Title 50 authorities in that context.

Transparency.  Bobby is quite right to question whether getting CIA out of the business of drone strikes, and giving that responsibility primarily or exclusively to JSOC, would (under current legal and cultural assumptions) promote transparency.  The CIA’s formal reporting requirements to Congress are more robust than JSOC's, and in the last decade CIA drone activities have more readily leaked to the public than JSOC’s drone activities.  The important point here is that the move away from deniable actions is not obviously a move toward transparency.  Brennan says that “if we’re going to take actions overseas that result in the deaths of people, the United States should take responsibility for that.”  But the move to JSOC alone will not accomplish this goal, and indeed under current arrangements will set it back.  So the transparency aim of shifting drone responsibilities exclusively to JSOC depends very much on a sea change in transparency norms surrounding JSOC activities.  Count me as skeptical about this possibility also.  The DeYoung story quotes an official saying that “’Deniable missions’ are not the military norm.”  But all that means is that the military does not ordinarily use Title 50 authorities.  It does not mean that the component of the military that carries out drone strikes (JSOC) is prone to transparency.  All of this said, if we are ever going to have more formal public transparency around drones strikes, one prerequisite is to end CIA drones strikes.  That is so because the CIA is in the business of Title 50 covert actions that are by definition deniable.  And while the President could in many circumstances authorize the CIA to engage in non-deniable actions outside Title 50, for historical and cultural and practical reasons that is unlikely to happen.

Tying Hands of Future Administrations.  Lots of self-serving posturing and puffing goes on in a piece like DeYoung’s, but one of the strangest and least convincing claims in the story is that Brennan’s institutionalization of the USG’s aggressive drone capabilities – the playbook, the disposition matrix, and the other elements of policy and legal infrastructure behind the ever-growing drone-strike killing machine – is designed to constrain future administrations.  The story says that Brennan see this institutionalization as “an effort to constrain the deployment of drones by future administrations as much as it provides a framework for their expanded use in what has become the United States’ permanent war.”  And then it quotes a “senior administration official” (which might well be Brennan): “This needs to be sustainable . . . and we need to think of it in ways that contemplate other people sitting in all the chairs around the table.”  There are at least two problems here.  The first is the implicit claim that one hears a lot from Obama administration officials to the effect that future administrations (read: Republicans) will be less virtuous and less restrained than Obama administration officials.  Without intending to be too harsh or too judgmental, it is worth noting that many outside the administration’s cocoon – on the left and the right and in the center – do not share these officials’ conception of their unique virtue or self-constraint, and do not believe the record of the last four years supports such a conception.  Second, while bureaucratic structures put in place by one administration can influence the structures of the next, Brennan’s approach is the least effective way to tie the hands of future administrations.  If the Obama administration really wanted to constrain future, less virtuous administrations, it would work with Congress and insist that its novel counterterrorism policies and procedures be put on a firmer statutory footing, with legal as opposed to merely executive branch bureaucratic constraints.  This the Obama administration has resolutely refused to do.