President Obama currently knows exactly where a suspected terrorist who is allegedly plotting to kill Americans is hiding out, but he can't do anything about it. Why? The man is a suspected member of al Qaeda — but he is also a United States citizen. That means the CIA drones secretly tracking him aren't allowed to kill him, while Department of Defense drones that theoretically could strike aren't allowed into the country in which the man is hiding.
This case has laid bare the legal gray areas, uncertain command structure, and murky goals plaguing the US drone program. In response to growing criticism, Obama proposed in a speech last May that limits be placed on how drones are used, and that the lethal use of drones be limited solely to the DOD, taking away the capability from the CIA.
Previously, both the CIA and the Pentagon (under the Joint Special Operations Command) had the authority to carry out lethal drone strikes on suspected enemy combatants, regardless of their nationality or the country in which the attack occurred.
That decision was made in part because while both the CIA and Pentagon are going after similar targets, they operate under a different set of guidelines. As Micah Zenko of the Council on Foreign Relations wrote in a memo last year, “The main objection [from some intelligence officials] to consolidating lead executive authority in DOD is that it would eliminate the possibility of deniability for US covert operations.” Zenko argued that authority to order US drone strikes should nevertheless be transferred from the CIA to the Pentagon.
Because the CIA drone program is classified, its very existence cannot even be acknowledged publicly. That means there is little way to know where, how, and who the agency is targeting. This has led many critics to denounce a secret program with little to no accountability that can assassinate US citizens without trial.
“The targeted killing of an American being considered right now shows the inherent danger of a killing program based on vague and shifting legal standards, which has made it disturbingly easy for the government to operate outside the law,” Hina Shamsi, director of the National Security Project for the American Civil Liberties Union, said in a statement. “The fact that the government is relying so heavily on limited and apparently unreliable intelligence only heightens our concerns about a disastrous program in which people have been wrongly killed and injured.”
Others have voiced opposition to the proposed guidelines for different reasons. One of the most vocal opponents is House Intelligence Committee Chairman Mike Rogers, who argued that, “While we are busy pondering more ‘transparency,’ our intelligence professionals are left paralyzed because of totally incoherent policy guidance.”
This is hardly the first time officials have argued for military actions to be consolidated. The 9/11 Commission recommended in 2004 that traditional military activities be left solely up to the DOD to avoid the "creation of redundant, overlapping capabilities and authorities in such sensitive work.” The commission determined that the US intelligence community failed to prevent 9/11 in part because of a lack of communication between various agencies and departments.
But the recommendations of the 9/11 Committee were largely ignored, having been released before drones became such an integral part of counterterrorism efforts. Since 2004, estimates of those killed by US drones have ranged between 4,000 and 6,000, according to the Bureau of Investigative Journalism. More than 3,500 of them have been killed in Pakistan, a country with whom we are not formally at war. The vast majority of these attacks have occurred since Obama took office, and have actually increased in the six months since he gave his speech proposing to rein in the program.
In order for the Pentagon to carry out a strike on a US citizen, the new guidelines require the Department of Justice to first build a case against the person that is “consistent with the Constitution and laws of the United States.” The Justice Department is in the process of building such a case against the suspect currently in question, but it has not yet been completed.
A senior administration official told the AP that the case currently being built against this suspect is the same as the one that was used to justify the extra-judicial killing of al Qaeda member and US citizen Anwar al-Awlaki in Yemen in 2011. (The killing of al-Awlaki and three other American citizens without trial drew widespread criticism.) The official also said that the President is considering giving the CIA a one-time pass to carry out this strike, or to authorize the Pentagon to strike, regardless of the objections of the country in which the man is hiding. The restrictions Obama enacted last year are, apparently, not all that restrictive.