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The Intercept’s Drone Papers Shed New Light on Targeted Killing

Drone with sunset
Drone with sunset
Brett Max Kaufman,
Senior Staff Attorney,
ACLU Center for Democracy
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October 15, 2015

It’s October 15. Is Christmas “imminent”? According to an extraordinary series of new reports about the United States’ targeted-killing program from The Intercept, the government seems to think so.

In May 2013, President Obama announced that he had issued a classified document, known as a Presidential Policy Guidance, that would govern the government’s use of lethal force in areas outside of active hostilities — places like Yemen and Somalia, where the United States was not engaged in an armed conflict under the laws of war. Among the restrictions, summarized in an unclassified White House “fact sheet,” was a requirement that any target “pose[] a continuing, imminent threat to U.S. persons.”

The word “imminent” was not defined in the fact sheet. Nor was it defined in a July 2010 Office of Legal Counsel memorandum — unearthed, in 2014, by the ACLU in litigation under the Freedom of Information Act — giving legal cover to the killing of a U.S. citizen. In fact, the government has never given a public definition of “imminence,” even as it has repeatedly relied on it publicly as a limitation that cabins its use of lethal force outside of war zones.

Today, The Intercept’s coverage gives us a clue. Among a bevy of new revelations and a cache of classified documents published this morning, we learned that the president’s authorization to target an individual with lethal force, based on a “continuing, imminent threat” to the United States, has in the past lasted for 60 days. (Perhaps that’s what then–Attorney General Eric Holder meant when he said, in a March 2012 speech given at Northwestern University School of Law, that the government views “imminence” as “incorporat[ing] considerations of the relevant window of opportunity to act” against suspected terrorists.)

The example cited by The Intercept took place prior to the president’s imposition of the PPG, so the new report primarily sheds light on how the government was interpreting its obligations before issuing the new policy. But in announcing the PPG, the president made clear that at least some of the restrictions were “already in place.” If “imminence” was one of them, The Intercept’s story would inform how the government applies its policy today, as well.

The new documents also call into question other aspects and applications of the government’s policy. The president has justified the use of drones by asserting that they are more “precise” than manned aircraft. But The Intercept reports that the government’s ability to track potential targets in places like Yemen and Somalia is “poor” and “limited,” often based on hazy and incomplete signals intelligence, or SIGINT. (One researcher likened the visual surveillance drones provide to watching the world below through a “soda straw.”) And while the president’s policy purports to restrict strikes to occasions on which the government has a “near certainty” that no bystanders will be killed, the website published government data suggesting that, in a five-month period during one U.S. operation in Afghanistan, more than 90 percent of the individuals killed were not the targets of the strikes.

The Intercept’s series is based primarily on “a source within the intelligence community who worked on the types of operations and programs described in the slides” who “decided to provide the[] documents … because he believes the public has a right to understand the process by which people are placed on kill lists and ultimately assassinated on orders from the highest echelons of the U.S. government.”

We agree.

That’s why in three separate lawsuits, the ACLU continues to seek the legal basis for the government’s program, as well as basic facts and statistics about who the government is killing and why. The government continues to stonewall — some might say troll — despite mounting official disclosures and other information in the public domain about the program. Its silence is damning, and Americans — indeed, the world — deserve better.

One nice thing about words is that they mean what they mean. But the secrecy surrounding the government’s targeted-killing program means we can’t know for sure if we’re all using the same dictionary. It’s high time for the government to tell the public whether its supposed “limits” on targeted killing are real limits, or limits in name only.

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