By Tommy Johnson
On January 3, the President of the United States ordered a strike that took place at the Bagh- dad Airport. Three drones cruised overhead, each armed with a Hellfire missile.
Using a mix of satellite imagery, signals analysis, and finally tips from CIA operatives, remote-controlled drones targeted, identified, and killed Qasem Soleimani. Soleimani was general of the Iranian Quds Force, a division of the Islamic Revolutionary Guard Corps (IRGC) that specialized in unconventional warfare, primarily working with militia groups in ad- vancing Iranian interests throughout the Middle East.
The killing of Qasem Soleimani was a scene out of a science fiction novel. The United States’ military apparatus is capable of setting into motion a multitude of actors span- ning American defense, national security, and intelligence bureaus, from McLean, Virginia to Doha, Qatar. Human intelligence combined with technological killers can together kill anyone, at anytime, anywhere.
War with Iran in the aftermath of this erroneous strike is more likely than it was a month ago, but still unlikely . Instead, criticism of the Trump administration’s decision brings new light to the dangerously unfettered nature of United States drone policy, and the necessity for Congress, the judiciary, and the American people to act on limiting executive power.
US drone policy, first under Obama and now under Trump, makes America out to be the villain on the world stage, a hegemonic pow- er that wantonly kills those deemed to be standing in the way of US interests. From white papers and memos that leaked out of the Obama administration to the way President Trump, Mr. Pompeo, and others stretched the meaning of words like “imminent” and “threat,” the US government demonstrates a lack of respect for human rights and state sovereignty in the interest of ‘national security’ without oversight or accountability. The further drone policy drifts from democratic accountability, the more merciless it becomes.
While many people consider the notion of a killer sky robot devoid of human feeling ethically dubious in and of itself, drones’ strongest defenders are those who suggest that comparatively speaking, killing by drones is a more moral manner of killing enemies. In a strictly utilitarian sense, killing a bad guy in a strike with five civilian casualties is better than killing a bad guy in a strike with nine civilian casualties.
The death of innocents, how- ever, is devoid of the same gravity when no one has to answer for this. Current drone policy so thoroughly obscures the process by which the United States kills individuals that it is impossible to know who to hold to account.
The debate around Trump’s strike on Soleimani has largely centered around the notion of ‘assassination.’ An assassination is a politically or religiously motivated murder, and for something to be a murder it has
to be both illegal and premeditated. It is hard to characterize the killing of Soleimani, no doubt politically motivated, as an assassination because it is unclear that it violates the law. Rather than proving Trump’s point that he was in his right to kill Soleimani, this demonstrates the need for a clearer framework to govern targeted killings.
The debate around whether or not the United States government assassinated Soleimani hinges on reference to an executive order signed in the early days of the Reagan Administration. Executive Order 12333 declares that “No person employed by or acting on behalf of the United States government shall engage in, or conspire to engage in, assassination,” nor should the United States encourage non-governmental actors to carry out assassinations. While E.O. 12333 summarily outlaws assassinations, the executive branch defines other methods of killing through white papers, memos, and justifications by legal counsels, none of which have the binding force of legislation.In recent history the executive branch has been governed by prerogative, producing an increasingly complex vocabulary for extra-judicial killing.
As for Soleimani, current government policy permits the killing of enemies deemed to be high-ranking terrorists, including United States citizens. President Obama declared Soleimani a terrorist, formally recognizing him as a “specially designated global terrorist.” This was more for reducing the Quds Force’s financial leverage than anything else — it was a Treasury Department designation that froze assets held in the United States. As Colin Clarke of the Soufan Center has pointed out, declaring someone to be a terrorist does not create an offi- cial policy to assassinate this person. Even so, the definition of one agency and the vague policy of the govern- ment combined create a framework for justifying the killing of Soleimani.
Drone policy is a perfect example of the executive branch’s ever-expanding vocabulary. There is no drone law. The documents that do exist place the power to define a legitimate target wholly in the hands of the executive branch. United States drone policy is governed primarily by the May 2013 Presidential Policy Guidance (PPG), the so-called playbook released by the Obama administration only af- ter court requests by the ACLU. This playbook outlines the permissible tar- gets, which include people, bombs, bomb factories, and bomb storage facilities. Operational plans originate from the intelligence community, which communicates them to the Na- tional Security Council (NSC) for presenting to the president, according to The Guardian. Importantly, as the NSC is an advisory body and not an official executive agency, it is not party to the Freedom of Information Act, which means the decision-making process for targeted killings is almost entirely removed from public scrutiny. Notably, the playbook only designates that the president contacts the “appropriate” members of Congress. Another State Department white paper outlines the conditions under which the president is allowed to kill an operational leader of a terrorist group. These three conditions are that the individual poses an imminent threat, that capture is infeasible, and that the strike is governed according to the laws of war pursuant to force.
President Trump and Secretary
of State Mike Pompeo’s increasingly asinine definitions of imminence demonstrate just how easy it is to manipulate our existing drone policy. These white papers establish just how far outside the confines of democratic oversight the current policy is.
Imminent is not the only word that has lost its meaning under Presi- dent Trump. Under President Obama, a legitimate terrorist leader to kill via drone strike was a high-ranking member of a major terrorist cell like Al Qaeda. Under Trump, a terrorist is a general in a foreign military. Even so, it is evident that Obama-era policies granted Trump to permission to kill Soleimani.
Drone policy under Trump and Obama has not only permitted the killing of terrorists — already a broad- ly-defined word affixed to any enemy of the state —but of innocents.
According to the Georgetown Journal of International Affairs, the Obama administration carried out around 10 strikes a day and Trump’s figures are more or less the same. Under President Obama, civilian casualties were as high as 11 deaths per strike, with the average hovering around 6-7 deaths. These are rough estimates; the official tally is a state secret. Entire civilian populations in Pakistan and Afghanistan suffer from post-traumatic stress disorder as a consequence of drone strikes. Drone strikes are demonstrated to lead to an increase in terrorist attacks and radicalization. And who can forget the 13- year old Pakistani boy named Zubair who testified before Congress that he is afraid of blue skies, because “the drones do not fly when the skies are gray.”
Legal scholars and human rights activists have floated numerous ideas for a more humane drone policy. The primary problem with the drone policy debate is that the debate is happening beyond the halls of governments, in academia and in the press. Although these institutions are important for advancing political discourse, they are not enough to pro- mote wholesale change.
To this end, the Trump administration’s escalation of executive prerogative requires a stronger antiwar movement. Thus far, criticisms of Trump’s foreign policy have focused on his methods of carrying out the policy, rather than the policy itself. Democratic presidential candidates Pete Buttigieg and Elizabeth Warren both chided Trump for his failure to account for the consequences of killing Soleimani in such a rash manner. Similarly, Andrew Yang, another candidate in the Democratic Party primary, told ABC’s “The View” that a president needs the right temperament for the job. These critiques are wrongheaded and weak.
Buttigieg’s reply to Trump’s strike is easily the most laughable. In it, he argues: “Before engaging in military action that could destabilize an entire region, we must take a strategic, deliberate approach that includes consultation with Congress, our allies, and stakeholders in the Middle East.” This is not a democratic foreign policy. Of course, Buttigieg later signals that he respects “the role of Congress in matters of war and peace” and that the American people “deserve answers.” The problem, as I have shown, is that to an extent, the killing of Soleimani was deliberate. The government over time had defined his status in world
politics in terms so ambiguous that we could kill him and offer a justification at any time. If we have a President Pete who so kindly informs Congress before detonating an Iranian nation- al, is anyone better off? No. A killer robot guided by reason alone is equal-y frightening to the Iranian, Iraqi, or Pakistani schoolchild to the killer robot directed by thumotic passion.
The main problem with Mr. Buttigieg’s criticism, which can serve as a placeholder for the American centrist to center-left critique of President Trump, is that it engages in exactly the debate that the President wants to have. A debate over when and how the President should exercise his current prerogative to kill anyone, anywhere, at any time is one that will always tend towards the Trumpian stance. If we know that someone is a killer and we accept the premise that the Pres- ident of the United States can make
the decision to end the life of a person through so depersonalized a structure of violence that a person in a bunker in Doha just has to press a button on a video game controller, then when is it right to kill that killer? Buttigieg, Warren, and the Democratic Party establishment say we should wait and twiddle our thumbs.
At least Trump is resolute. Trump is making the strictly utilitarian argument that killing one person now to save an unknown number of lives later is always better. This argument will, I think, be more convincing to the United States voting public than the argument that accepts Trump’s utilitarian calculus of weighing American lives versus that of an individual enemy but equivocates on when the right time to pull the trigger is.
The elected representatives of antiwar sentiments are very scattered.
It is a tenuous grouping of leftist in the Democratic Party and the more libertarian-minded individuals in both parties.
The harshest critics of Trump in Congress have been the likes of Senator Rand Paul and Representative Ilhan Omar, two figures who often critique the foreign policy consensus. Mr. Paul called the strike, among other things, an “act of war,” and saying “you’d have to be brain dead” to believe that, as President Trump and Mr. Pompeo have argued, killing Soleimani would bring Iran to the negotiating table.
Ms. Omar declared that killing Soleimani was an act of war, which rendered it illegal according to the Constitution’s Article 1, Section 8, Clause 11, which vests in Congress the sole right to declare war.
In the Presidential Election, Bernie Sanders is the leading voice of an antiwar vision of American foreign policy. He characterized the killing of Soleimani as an assassination and is one of the few consistent voices in op- position to this country’s most hubris- tic, bloody, and long-lasting conflicts, the Iraq and Vietnam wars.
But in Mr. Sanders’ opposition to Trump’s killing of Soleimani, one can see the pitfalls in the current an- tiwar movement. In the last election cycle, Mr. Sanders argued that he would use drones to kill terrorists if he thinks he has isolated a specific terrorist.
Mr. Sanders, as the sole voice challenging America’s foreign policy consensus in the most significant election in a generation, should clarify his position on drones. Presidential candidates should not promise that they will use drones to kill terrorists until they promise that they will attenuate the executive’s prerogative to kill by reigning it into the system of checks and balances. Only after this faceless, merciless weapon of American power is brought under the control of democratic governance can we then debate the moral problem of depersonalized slaughter and the necessary parameters for defining terrorists and justifying a strike.
I will suggest some parameters for a more humane drone policy. The United States already has a system for organizing depersonalized violence against individuals:a court of law. In a court of law, judges and juries stand between the raw demonstration of state power against an enemy of the state (i.e. a criminal), but when a criminal is convicted they undoubtedly experience the overwhelming violent power of the state as they walk from the courtroom to a jail cell. If the U.S. government wants to develop broad trust in targeted killings, these killings should face the same scrutiny that would be expected to be met in a court of law.
According to the legal scholar Amos Guiora ’79, a good starting place is a court that determines the viability of ending an individual’s life solely on the basis of intelligence in- formation. This kind of court would force the government to explain itself, and establish a record of government attempts to kill that would fall under the FOIA. There is precedent for this kind of idea, too. Already, the Foreign Intelligence Surveillance Act has a court for granting government requests to wire-tap. If we need court approval to spy on a foreign national, it is not a stretch to suggest that we should likewise have to go through a court to kill.
This is an unlikely outcome, and even then it might not be enough: a court could very well become a rubber-stamp organization. At the very least, these types of ideas are a start, and the prevailing political discourse around America and the use of violence should incorporate efforts at imagining a more merciful, more democratic foreign policy.
This cannot happen until brave representatives and passionate citizens unite, despite differences, as a new antiwar movement, putting time and energy behind the candidates that truly move beyond the current consensus in American politics of abdicating all foreign policy power to the largely unelected employees of the executive branch. When you vote in your primary, canvass in your neighborhood, or upload your credit card information to a candidate’s web- site, think about more than yourself. Think about the world around you and how it could look different if we could unite a sense of democratic mercy with our foreign policy.
The Soleimani strike, in sum, should be understood as business as usual, as an inevitability under the current paradigm in which the Us executive branch makes all of the decisions related to national security. Of course, in the days after the strike, Congress acted to limit Trump’s powers as it pertained to Iran.
This is not enough.
Not only is a more comprehensive limit of executive powers needed, but the public should be more vocal in its opposition to forever wars and its demand for government accountability. Additionally, legislation that creates a Drones Court would pull the judiciary into foreign policy. If America purports to be any- thing other than a fading imperial power, it must demonstrate to the world that its decisions are guided by a respect for international law, human rights, and state sovereignty, not by intra-branch white papers and memos that expand and alter the definitions of our national security vocabulary.
Finally, we ultimately need to elect a president that is willing to cede ground in the area of war powers.