One week after President Obama's much-touted speech on national security, many experts are more confused than ever about what rules govern the U.S. government's overseas killing program and where those rules apply. While the speech left many viewers with the impression that Obama planned to reform or even end this program, his administration's practices tell a different story. On Wednesday, anonymous Pakistan security officials said that a CIA drone strike had killed the Pakistani Taliban's deputy leader, Wali ur-Rehman, in North Waziristan. A pair of additional reported strikes in Yemen – both officially unconfirmed by the U.S. – raise even more questions about how and why the American government kills people in other countries.
The White House released a factsheet in connection with Obama's speech with the stated intention of offering clarity about the highly-debated drone program. The factsheet outlines a series of requirements before the U.S. orders a drone strike: Most notably, targets must "pose a continuing, imminent threat to U.S. persons" (a standard that is itself a subject of debate); capture and other alternatives have to be ruled out as feasible options at the time of the operation; and the U.S. "respects national sovereignty and international law." Critics have noted, however, that these limitations only apply to areas outside the United States and outside "areas of active hostilities" – and the key question of what the U.S. defines as an area of active hostilities remains entirely unclear.
The New York Times' Mark Mazzetti reports that parts of Pakistan do not, in fact, fall under the administration's new rules, at least as long as U.S. troops remain in Afghanistan. The centrality of Pakistan to the U.S. drone program – 317 strikes have been carried out there under Obama's watch, according to the Bureau of Investigative Journalism – means that this is a very big exception. Meanwhile, those hoping that Obama's speech would usher in a new era of transparency were disappointed by Press Secretary Jay Carney's flat refusal to confirm the widely reported drone strike in Pakistan.
So what rules, if any, do apply to U.S. drone killings in Pakistan? "We still don't know what rules apply to CIA strikes within 'active hostilities,' which seems to include the AfPak border," says Naureen Shah, lecturer-in-law at Columbia Law School. "What's troubling is that the CIA has never yet confirmed that it considers itself bound by international law, and it hasn't explained its standards for preventing civilian deaths." (The CIA currently operates the drone program in Pakistan, while the Department of Defense and CIA have parallel programs in Yemen.)
Morton H. Halperin, senior advisor at the Open Society Policy Foundations, echoes these concerns. "There is a general perception after President Obama's speech that drone strikes would face significant restrictions," says Halperin. "That's optimistic. As we're hearing, the new rules may not apply to Pakistan – and a careful look at the speech shows the new rules remain vague and, in fact, keep too many options open for the President to use lethal force abroad."
Details are even more murky on the strikes in Yemen. According to freelance journalist Adam Baron, the first strike after Obama's speech, in northern Yemen, hit an empty car instead of the high level al Qaeda official who was apparently being targeted. Gregory Johnsen, a Yemen expert who follows counter-terrorism issues closely, says that although it's unclear whether the strike was from a drone or another weapons platform – or even whether it was carried out by the U.S., Saudi Arabia or Yemen – it seems to him like a continuation of previous policies. "For me, this is an example of President Obama wanting to score political points by posturing while leaving the same policies in place," says Johnsen. He compares this to Obama's statements in favor of closing the prison at Guantanamo, while leaving indefinite detention in place: "He's doing something similar on drones. He's arguing about a symbol, not the substance."
If all of this seems impossibly convoluted, rest assured that even those tasked with making sense of these policies have lately been mistaken. The New York Times claimed in an editorial published immediately after the speech – and implied in a news story – that the speech heralded the end of "signature strikes," wherein the identity of the target is unknown, but their activity suggests militancy. Those claims are simply inaccurate. As The Times later reported, signature strikes will continue in Pakistan. (The newspaper's editorial board director, Andy Rosenthal, to his credit, acknowledged the mistake.)
The source of the confusion appears to rest on the definition of "area of hostilities." Perhaps signature strikes aren't allowed in some places – but if they are allowed in Pakistan, where else are they allowed? Are there places where the U.S. is currently operating a killing program that are considered outside an area of hostilities? And if the entire world is a battlefield – a mantra from the Bush years that seems increasingly applicable under Obama – what good is it to have rules that only apply to non-hostility zones?
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