New Drone Strikes Underscore, Again, How Much Power We Give Trump

Americans rolled over for decades while we gave the executive branch unreviewable authority to kill – now that power is in the hands of an idiot

Yemeni men walk past a mural depicting a U.S. drone and reading "Why did you kill my family," in Sanaa, 2013. Credit: MOHAMMED HUWAIS/AFP/Getty Images

While all of us were preparing for Thanksgiving dinner, the United States was busy preparing an attack on the Yemeni province of Badhya.

Residents later reported that the region spent much of the day under attack from Saudi jets and American drones, which hovered overhead and intermittently fired missiles from above.

The attacks were described as a success in most Western newspapers. The Daily Mail in London highlighted the fact that "10 Al-Qaeda Suspects" were killed in the attacks, as confirmed by government officials.

One minority-ish report by Gulf News Yemen, one of the few on-the-ground sources that covers such attacks, had details of the killings. Quoting an on-the-ground activist, it added:

"The recent US drone strikes have also killed five civilians, displaced residents and caused panic in the two areas."

Drone strikes have intensified since Donald Trump assumed the presidency.

This fact should surprise no one. The ability to kill by remote control without judicial review was one of the many gifts we bequeathed to Trump prior to his inauguration.

Most of the media obsessed over the particulars of the botched and luridly insensitive phone call Trump made to the family of slain U.S. soldier Sgt. La David Johnson at the end of October.

The La David Johnson story received a lot of attention by members of the media on both sides of the aisle. But very little of it was directed at the question, "What the hell are we doing in Niger?"

Rachel Maddow's analysis, for instance, was that Trump cooked up the fracas with the Johnson family to distract from other military failures.

A few reporters did ask parenthetically what we were doing there – usually by asking Pentagon officials – but even in those cases, there has been virtually zero questioning of the righteousness of the missions.

A few senators asked questions. Republicans John McCain and Lindsey Graham, as well as Democrat Chuck Schumer, expressed surprise at the size of U.S. forces in Africa.

Graham on the campaign trail repeatedly expressed support for a new "Middle East Marshall Plan" that would have invested troops and treasure in a massive effort to unite the region.

But he sounded positively hippie-ish when asked about the surprising (to him) news that we have some 6,000 troops in Africa already, many of them at drone bases.

"I didn't know there was 1,000 troops in Niger," Graham said on Meet the Press. "This is an endless war without boundaries and no limitation on time and geography. ... You've got to tell us more."

Donald Trump is unpopular, and members of both parties will use incidents like this to highlight his genuine lack of leadership, his tasteless interactions with soldiers and his lack of a clue as it pertains to how to stabilize the Middle East.

But the basic premise of his military's presence in this part of the world has consistently gone unchallenged in the U.S. media since January, as it was mostly unchallenged under both Obama and Bush.

The core idea of our presence in places like Niger is to partner with local countries, often ones with monstrous human rights records themselves, to make remote war easier.

These countries often accept massive amounts of military aid and other geopolitical goodies, and repay us in on-the-ground intel about whom to drone-bomb in our ongoing, undeclared, ever-bloodier War on Terror.

Since 9/11, we have gone out of our way to make questioning executive authority difficult or impossible, especially when it comes to matters of national security.

The loosely and apparently interminably defined War on Terror is just one example. Presidents have assumed for themselves powers to make war that were once the province of the legislature.

Similar initiatives to expand surveillance and create and define the parameters of new interrogation tactics were also settled without asking the permission of Congress or, often, the courts.

The same goes with the expanded classification of documents and many other unilateral assumptions of authority.

In the case of drone attacks like the ones that occurred over the weekend, there will be no way to determine what, if any, liability the United States and Trump may hold for the reported deaths of the five civilians, if five is the right number.

We have very recent court precedents that have affirmed the nearly unlimited power of the president.

In 2015, for instance, the families of imam Salem bin Ali Jaber and his police officer nephew, Walid Abdullah bin Ali Jaber, filed a wrongful death suit in Washington against the U.S. and a spate of individuals after the two were unjustly killed in a drone raid in the village of Khashamir, Yemen, on August 29th, 2012.

Salem bin Ali Jaber had preached against terrorism as recently as the week before. As imam, he pushed a line of thinking that argued the Quran did not endorse violence. By all accounts, he was exactly the kind of person we should have been trying to encourage on the ground. 

But he and his nephew had the misfortune to be visited by three unidentified young men who must have been on America's "kill list," which in the Obama years we renamed to sound less monstrous.

The kill list became known by the Orwellian tag "disposition matrix." Trump critic John Brennan is frequently credited with coming up with the less murderous name.

In any case, five men died that day in a drone attack as soon as the two Ali Jabers took a seat outside next to the condemned men.

When the family of the Ali Jabers filed suit in America with the aid of an international nonprofit called Reprieve, they were told in no uncertain terms by a D.C. circuit court that judges cannot second-guess the judgment of the executive branch.

Instead, the lower court ruled, such calls are up to "the Executive, and not a panel of the D.C. Circuit, who commands our armed forces and determines our nation's foreign policy."

The family appealed. A higher court affirmed the decision. Still, since-retired Judge Janice Rogers Brown, an African-American woman, laid out in a blistering dissent the problem of courts like hers passing the buck in these decisions.

"Our democracy is broken," she wrote.

She noted that in the growing covert war, "the rules of the game are tacitly assumed to be unknown."

In other words, secret operations against secret suspects are conducted according to rules that by simple logic must also be secret.

This reduces the legal foundation for much of post-9/11 military action to, "You have to trust us."

Judges have consistently refused to take on the responsibility of reviewing these matters. They say they lack the expertise and information to decide if an attack is originally militarily justified, even if courts could demonstrate persons or companies were later victimized unfairly.

In the case of the Al-Shifa pharmaceutical plant in Sudan, which was wiped out by the U.S. government for allegedly aiding al-Qaeda but seemed instead to be making medicines, a U.S. court ruled it didn't have the chops to decide if the attack had been a mistake.

A court said the case was "nonjusticiable" (say that three times fast) essentially because it lacked the ability to question executive branch wisdom in launching the strike.

This has been the law of the land. Still, in the Ali Jaber case, Brown wrote, "This begs the question: if judges will not check this outsized power, then who will?"

She added, "Congressional oversight is a joke—and a bad one at that."

Brown said mankind had to make a choice, as Thomas More argued to young William Roper in A Man For All Seasons: "What would you do? Cut a great road through the law to get after the Devil?"

Brown's suggestion was that "flattening" the law even for an ostensibly good cause would blow back on anyone who tried it.

That exact situation is playing out now. We spent the better part of two decades making presidents unaccountable warlords in order to more easily pursue "terrorists."

But then we elected a man with the brains of an anchovy to the presidency. Now we have to trust he will use that near-absolute power wisely, and early returns suggest he will not.

Hopefully we all had a good Thanksgiving anyway. Most of us probably did. We've mostly decided to close our eyes to these campaigns. But that may blow back on us too, someday. Even Thomas More knew, karma has a long memory.