The big exclusive up at Foreign Policy reveals that Obama’s promises to shift the drone war from the shadows of the CIA over to the Defense Department are being broken. The obstacles to completing this promised shift are “practical” as well as bureaucratic, Gordon Lubold and Shane Harris report, and the DoD just doesn’t seem ready to handle it.
But here is the key passage, which I think describes the real hurdle:
Keeping the drones with the CIA also offers legal cover for drone strikes, former officials argued. By law, the military is not supposed to conduct hostile actions outside a declared war zone, although special forces do so on occasion acting at the CIA’s behest.
The CIA can break international law, while the DoD can’t. Almost a year ago, in a blog post titled “Why Is the Drone War Secret?” I explained it in a similar way:
Those parts of U.S. foreign policy that are of questionable legality or are particularly cold-blooded in their execution must be kept secret in order to avoid public and judicial scrutiny. If the ugly parts of the drone war – like the fact that its illegal, kills civilians, and represents a radical expansion of executive power – were out in the open, the administration might be predisposed to some accountability. An ignorant public is absolutely essential to the functioning of Obama’s foreign policy.
The current debate about whether or not Obama’s drone war is legal and humane is resolved by simply recognizing that it is secret. It isn’t a covert war because Obama wants to “protect sources and methods.” Indeed, enough is known about the program that sources and methods aren’t really secret. What is kept secret, revealingly, is the administration’s legal case for the drone war, as well as a government accounting of who is being killed. If it were perfectly legal and humane, Obama would have little reason to keep it secret.
Bringing the drone war over to the DoD would automatically impose greater transparency and accountability to the law – two things the Obama administration is desperate to avoid.