"Tell me how this ends," asked General David Petraeus in 2003. He was speaking of the war in Iraq, which was born out of faulty intelligence and faultier strategic logic, and spiraled rapidly out of control. Today we know the answer to Petraeus's question: The war ended with tenuous stability for Iraq -- won at the price of some 4,500 dead Americans, an unknown but much higher number of dead Iraqis, roughly a trillion dollars in direct costs, and incalculable damage to the United States' global reputation. By 2012, two-thirds of Americans were convinced the war in Iraq hadn't been worth it.
But Petraeus might just as well have asked his famous question of a different war -- not the war in Iraq, which he's often credited with salvaging, or even the war in Afghanistan, which he later struggled to turn around, but the covert drone war over which he presided during his brief tenure as director of the CIA.
The drone war is a shadow war, widely reported in the media but officially unacknowledged by the CIA and the White House. Many details remain obscure, but we know that the United States has engaged in "targeted killings" in Pakistan, Yemen, and Somalia, and possibly in Mali and the Philippines as well. The killings -- most reportedly carried out by strikes from unmanned aerial vehicles -- have targeted suspected Taliban leaders and terrorists, some identified by name and some targeted as a result of a suspicious pattern of activities. Since the strikes are rarely acknowledged, no one knows precisely how many casualties our shadow war has caused, but media and NGO reports suggest that the number of deaths is somewhere between 3,000 and 5,000.
Although many details remain unknown, we now know a little bit more than we used to about the Obama administration's legal rationale for this shadow war. Monday night, NBC News released a 2011 Justice Department white paper on the question of whether U.S. citizens overseas can be targeted. In the process of examining that question, the paper also offers the most detailed legal theory we've yet seen for the shadow war more generally.
The document is 16 pages long and full of legalese, so here's the CliffsNotes version. If you were worried about whether it was okay for the U.S. government to secretly kill an American citizen overseas, you can relax: The Justice Department says such killings are hunky dory, as long as some "informed, high-level official" decides that citizen poses an "imminent threat" and capture would be "unfeasible."
Like many legal documents, this one does fine on its own terms, but looks a lot less satisfying when taken out of its hermetically sealed legal universe. In other words, it's all tree, no forest -- and it nicely illustrates the fact that "legality" is not the same as morality or common sense.
Let's take the white paper's key claims one by one. In and of themselves, each appears uncontroversial -- but the sum of the parts amounts to a recipe for legally sanctioned error and abuse. (Caveat: This is a quick analysis based on an initial quick read of the memo. If a closer and more careful read suggests any errors in my analysis, I will post a revised version of this column later.)
1. American citizens overseas can lawfully be targeted and killed by the U.S. government if they take up arms in an armed conflict against the United States. True, and uncontroversial under the law of war (and under U.S. law), as far as that goes. American citizens who joined the German army during World War II could be captured or killed just like any other German soldier.
But here's the problem. This isn't World War II. When the "enemy" (not just a few of the enemy, but all of the enemy) wears no uniform and appears on no traditional battlefield -- when there's substantial disagreement about what it means to be a "combatant," a "belligerent," or to "participate in hostilities" -- stating the legal principle that even U.S. citizens can be targeted if they join the enemy in a war against the United States tells us nothing whatsoever.
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