Last Friday, in response to a freedom of information lawsuit filed by the American Civil Liberties Union, the government released a redacted, top-secret “playbook” for taking out terrorists with killer drones.
The rules of drone engagement are detailed and complicated, but there is also some wiggle room.
“When the use of lethal action is deemed necessary,” the presidential policy guidance for direct action against terrorist targets outside the U.S. says, “Departments and agencies of the United States Government must employ all reasonably available resources” to ascertain identities before action can be taken against high-value targets.
What’s not clear is who decides what constitutes “reasonably available resources.”
ACLU Deputy Legal Director Jameel Jaffer said in a statement that the release of the guide “now will inform an ongoing debate about the lawfulness and wisdom of the government's counter-terrorism policies."
Part of that debate appears to be going on inside the Democratic Party.
On Sunday, Democratic vice-presidential candidate Tim Kaine was asked in a taped interview with Chuck Todd of Meet the Press whether the Obama administration has the authority to mount airstrikes against ISIS in Libya, as it announced it was doing last week.
“I do not think we should be in an offensive war against ISIL without congressional authorization. That's been my long-held position,” Kaine said. “And Secretary Clinton has said Congress should do its job instead of hiding under their desks and have a debate and have a vote on military action against ISIL. If we do that, I'm confident that Congress would support military action.”
As Todd pointed out, that puts Kaine on the opposite side of a critical issue from Hillary Clinton, who chose him to be her VP, and from President Obama. Both Clinton and Obama believe that the airstrikes and drone attacks are legal and justified.
It also opens the question of how a President Kaine – should Clinton be elected and should the veep ever have to replace her – would go after ISIS and whether he would tear up Obama’s drone playbook.
At times, the government guidelines sound almost Orwellian. There is a “nomination process” in which departments or agencies can “identify an individual for consideration.”
“Prior to recommending that an individual be considered for capture or custody [or what is later referred to as a long-term disposition plan] … the nominating agency must confirm with its General Counsel that the operation can be conducted lawfully, but it is not necessary to have resolved the long-term disposition plan prior to proposing a capture operation,” the guide says.
“Whenever possible,” the guidelines add with bureaucratic chilliness, “the nominating agency shall notify the Interagency Disposition Planning Group prior to such a request.”