The Obama administration announced earlier this month that it will release its drone "playbook" and the number of combatant and noncombatant fatalities from drone strikes. While there are those who surely will praise this move as a positive step on the road to greater transparency, we have major concerns that releasing the playbook is too little, too late. A recent New York Times editorial concludes with the warning that "[o]ther nations are building fleets of drones, and America has set a dangerous precedent. It has signaled that it's permissible to kill people from the sky without publicly disclosing the justification or any collateral damage that might result." Unfortunately, the editorialists are likely correct. The administration has established a standard with unknown bounds, and the world has taken notice.
Yet, in some ways, the Times' argument is incomplete. This is the second time that the public has become aware of the Obama administration's willingness to release the rules governing its use of drones in targeted killing. The first time was during the wake of the 2012 presidential election. This time, we are reaching the final stages of President Obama's time in the Oval Office — and the federal judiciary pressed for release of the document. The administration's reticence to make the rules public flies in the face of the current claim that the White House seeks to be more "transparent" about its use, and the impact of, drones.
Moreover, U.S. drone reliance suggests some potential legal issues. The so-called "signature strike," in which an individual is placed on the "kill list," has domestic legal implications. Indeed, despite several speeches making the claim that the drone program is legal, Obama himself, a former professor of constitutional law, has noted that drone "technology raises profound questions — about who is targeted, and why; about civilian casualties, and the risk of creating new enemies; about the legality of such strikes under U.S. and international law; about accountability and morality." Expounding further in that vein, he issued a call, stating that "One of the things we've got to do is put a legal architecture in place, and we need congressional help in order to do that, to make sure that not only am I reined in but any president's reined in, in terms of some of the decisions that we're making." Sadly, years later, Congress has yet to act to rein in the current president — or future ones. Given the seeming indiscriminate claims from some current presidential hopefuls, this policy vacuum leaves the nation and the world with a damaging status quo.
Georgetown Law Professor Rosa Brooks has argued that "when the U.S. asserts a unilateral right to use force in a secretive and unaccountable way, we must consider that we are essentially handing every repressive and unscrupulous regime a playbook for how to violate sovereignty and get away with murder."
While Obama's playbook will retroactively expose the legal foundations of the past eight years of the U.S. targeted killing program — at least as carried out by drone — it will more likely than not be judged moot in helping to develop global foundations for drone usage in compliance with international law and may extend beyond the bounds of international law.
Moving forward, if the U.S. is to lead the way, two things must happen. First, Congress has to be willing to exercise its constitutional duty to provide oversight over the international use of drones. Second, the next president must take office with the rules firmly established, well-known and public. The fact that the president has successfully been waging a dark war without publicly known legal guidelines violates the rule of law. Continuing a veiled program, cloaked in unnecessary secrecy, undermines the nation and its global interests.
Gibson is associate professor of political science and security studies at Westminster College in Fulton, Mo. Holyan is a recent graduate of Westminster College and will begin graduate studies in the fall.