When President Obama took office in 2008 many expected him to depart sharply from the politics of his predecessor, former President George W. Bush. But for varying reasons, this has not taken place. This paper will analyze through the example of Obamas Drone War a few – though probably not all – of those reasons.
Starting with a comparison of both Presidents, or rather by viewing the development of U.S. counter-terrorism policies under both Administrations starting from the attacks of September 11 2001, it will be shown that Obama did in fact not depart from many policies of Bush, but adapted and modified them. Additionally, that these policies represent an expansion of presidential power, rooted in the events of 9/11.
But despite the qualitative equality of these policies, their rhetoric and ideological framing are different. Obama is focused on stressing not only the bipartisan effort or process, but also his reliance on the shared power of the different branches of government. Whether acting unilaterally or not, whether bound by Congress or not: The Obama Administration is using the legitimacy of the other branches of Government as his political tool.
The relationship of legislative and executive regarding the Drone War highlights other aspects of the separation of powers in the United States. First that the executive is only as much bound as the legislative wants it to be: The program of targeted killings with drones will continue as long as the legislative does not actively step in and forbids it. The logic of the War on Terror will continue as long as Congress does not explicitly make a political statement (and thus law) in that direction. Second that the current discussion about the legality of the drone strikes, are blurring the much more important political question: Whether or not the War on Terror and its subsequent military interventions on a global scale are really the interest of the American people.
As a final note, it becomes clear, that Congress will not act until the public discourse and the public as a political actor forces him to.
Bush & Obama
The whole political campaign of Obama was dependent on an oppositional posture towards the parting President. Framed as Change We Can Believe In the message was clear: The policies of the former Administration had to be overcome: torture, unilateral action against the other branches and international allies, the Wars in Iraq and Afghanistan, maybe even the post-9/11 framework.
While this might be the conception of many believers, Obama was also clear from the beginning that he would instead focus on the (in his mind) real enemies: Al Qaeda and its leading personnel, located in Afghanistan, Pakistan and other countries.
Probably one of the most important aspects of the Bush Administrations infamous abuses was torture as an interrogation technique. Indeed, the practice of torture was stopped shortly after Obamas inauguration. There are two reasons for that. The first and foremost being, that the Obama Administration does not believe that enhanced interrogation techniques work. Obviously there is no reason to continue a politically damaging policy when the empirical evidence speaks against the program. The approach towards suspending these techniques was just pragmatic. But it also has to be mentioned that the extremely narrow definition of torture, which has been laid out in the now public DOJ memos, has all but been suspended in 2005. A legal oversight has been established and the Obama Administration published the memos without any negative consequences for them. It is especially important that the Administration decided against investigating any of the involved government officials. This is part of a bipartisan effort by Obama. But it also highlights the continuity between both Administrations, which is shown perfectly by newly elected C.I.A. leader John O. Brennan, who was heavily involved in the Anti-Terrorism Program by the Bush Administration, including torture. He naturally denies any involvement.
Despite its unilateral rhetoric, the Bush Administration relied heavily on a legalistic legitimization for its policies. Starting from the Joint Statement from both houses, the AUMF 2001, which is the basis for basically all the policies in the War on Terror. In fact, they show the principal equality in both Administrations. It was of utmost importance to the Bush Administration, that war be not only waged against Afghanistan, but against Al Qaeda itself. Members of the groups would thus be enemy belligerents, not criminals, who can be killed on sight. Without the logic of being at war with Al Qaeda, drone strikes would not have been possible.
This similar approach is visible when comparing the torture memos to the recently leaked White Paper concerning targeted killings. Both feature the same form of defining certain terms very broadly or narrowly. The Bush era memos defined torture so narrowly, that there was a lot of leeway for the involved personnel – and thus truly torture. Similarly, the targeted killings feature a very broad definition of imminent – as well as a very vague definition of the phrase “feasible capture”. The paper defines a killing legitimate, if capture is not feasible. This might include political backlash or loss of American personnel. But the exact meaning remains unclear. Both Administrations depend on this focus on semantics, in order to legitimize their political interests. Similarly both Administrations talk of non-state actors, a case-by-case basis and a new kind of war (see e.g. the memo 02.01.25).
Apart from the same general approach to legitimizing the interests, there is a linear development in the targeted killing process which directly leads to the Drone War, which goes beyond the differences of Bush and Obama as party members or individuals. They are rooted in the interests of the executive and the development over the recent years. Shortly after the 9/11 attacks the Bush Administration lifted a ban on assassinations. This was subsequently expanded from named individuals to targeted groups. Again, this was possible because of the war-status against Al Qaeda, but this specifically concerns assassinations, or targeted killings. Although Attorney General Eric Holder wants to differentiate between the two, the method and goal is the same: To specifically kill a certain individual not by chance in combat, but by a precision strike. This is exactly what Bush allowed and what is taken place with drone strikes. Be they politically legitimized or not.
It is true that drone strikes have expanded exponentially since Obama took office. But the reason is not a specifically different approach by the Obama administration. The first drone strike took place in Afghanistan in 2002. The second strike took place in Yemen, outside the designated warzone. It is still contested on whether or not the targets truly were terrorists.The next strike took place in 2004 in Pakistan, the main strike area for Obama later, inside the mountainous region FATA. When Bush left office, 45 drone strikes have taken place. After 3 ½ years of Obama it were 293. But is important to keep in mind that the targeted killing program through drones was already being developed while Bush was still in power. Even more, the development of drones is still in the early stages, has doubled every year since 2001, and the Pentagon is already planning for a much larger usage of robots in warfare. Their motto after 9/11: “Build them as fast as you can.” This technical development is bigger than the president, because every nation with its own economic and military interest will try to develop such techniques. It is a logical step as long as the United States wants to maintain their economic and thus military interests. With its global and decentralized scale, the War on Terror is the perfect instrument for the executive in enforcing those interests.
If there is one key difference in both Administrations, it is one of appearance. As a Democrat, Obama always faced criticism from the right for being “too soft”. While the Bush Administration relied on their bluntness and appeal to the political base, the Obama Administration is systematically trying to portray Obama as bold, strong and resolute on the War on Terror. Although his resoluteness was part of his campaign, this aspect was overshadowed by his rhetorical opposition to Bush policies. But Obama is also trying to appeal to the political right, when presenting himself as the Drone Warrior who successfully guides and controls the process of killing high-ranking terrorists. The policy of leaking certain successful killings leaves the question about the unknown failings. Since Obama is under the permanent threat of appearing too soft, a terrorist attack would considerably weaken his position with the political Right, and thus reduce his political leeway. When Brennan remarks that there has been no terrorist threat because of the technology which has been developed (probably including drone warfare), it hints to the importance of the program for the Administration.
The whole program targeted killings through drones shows a clear continuity between the Bush and the Obama Administration in most respects. Their legalistic approach to serving their interests, their basis of power on the AUMF (and thus Congress), even the development of the program itself are part of the interests of the executive. The smaller differences are coincidental and only on the surface differences in politics. This is true for torture as well as the targeted killings, where Obama might be different to early-Bush, but not to late-Bush.
Executive, Judiciary, Legislature
When Bush was in power, the fear of a dictatorial presidency which ignores the other branches of government was widespread. Although Obama has to face Hitler comparisons as well, the ideological framing was clearly different, in many aspects because of how the Administrations presented itself. The Bush Administration ideologically defined most of their power through a broad interpretation of executive power, while Obama is emphasizing the rule of law. But as has been seen, both relied on congressional laws to act – and both had to make concessions to pressure from the judiciary and the legislative.
For Obama this is visible in his failing to close Guantanamo Bay. Since the new Administration came to appreciate the perceived danger of some of the GTMO detainees while being unable to convict them (because of dirty evidence) many of the detainees stay in prison. Despite his political goals to close the detention center, this became impossible when the illegal black sites – a political hazard – have been closed. It was the judiciary who banned the civil cases, and thus the Obama Administration could not do better.
This might be an important aspect of why the targeted killing program expanded to such proportions. The indefinite detention of suspected terrorists and the public connection of this detention with past torture cases makes indefinite detention politically unfeasible. In some aspects this led some to believe that there is now a take-no-prisoner policy. Since basically every young male in a perceived terrorist area is regarded as an enemy combatant, every drone strike kill can be counted as a killed “combatant”. A body count of killed (alleged) terrorists is easier to legitimize than the already infamous detention.
This change of policy through pressure from the other branches occurred several times. The change in the Bush Administrations detention policy was based on the 2005 statute and the 2006 Supreme Court Ruling. As Goldsmith argues, “Congress altered and then approved, with qualifications, the Bush Administrations early approach to military detention, military commissions, interrogation and surveillance”
The other branches of government can indeed step in and stop the executive, if there is the political will and conviction that it is necessary. The decision of the Supreme Court on Rasul 2004 and the political contest between judiciary and legislative afterwards are a prime example of how the branches are struggling with each other, if they want to. But they also show that Congress has a political motivation not to stop the Obama Administration with its expansive use of powers, of which the targeted killing program is a part of.
Despite the fact that the Obama Administration will not admit publicly to the CIA drone program – only to the one of the military – most about the Drone Warfare is already publicly known. Different NGOS, like the American Civil Liberties Union, have been involved in tracing and collecting evidence of the program, its methods and usage. This public knowledge was one of the reasons why the New York Times sued the Administration. But still Congress has never publicly debated the targeted killing program. The drone war is something the Executive acted upon unilateral, although its death numbers go into the thousands and the civilian death toll is estimated to be in the hundreds. The Administration gives no clear answer on the civilian deaths and downplays them constantly.
Because of this situation most of the demands of Congress are focused on transparency and controlling. Here is a clear shift towards the executive: The President is acting and oversight takes place afterwards. As long as the executive does not acknowledge the program, it does not have to defend it. At least as long as there is the political leeway to do so in regards to public sentiment. The demand of transparency – or rather: the demand to know what legal justification the executive has for its program – shifts the decision making process to the executive. Not the legislative is making policy; it tries – at best – to control policy.
But even this transparency and demand for accountability seems politically questionable. Since Obama has taken office there have been monthly meetings on the targeted killings in the Intelligence Committee, even seeing footage of strikes. This explains why there has been a drop in strikes: They have become institutionalized in a shared power network of Congress and Presidency. But they also question whether Congress is really interested in transparency. Everyone knows about the program already, knew about them for years. What really is missing is the political determination to change the program. As has been shown, Congress is able to do so. But in reality they share the world view of the Administration regarding the War on Terror and regarding American global interests. Never has any NGO investigating the drone warfare been contacted by Congress. The call for transparency and legality is supporting that nothing happens about the program and it is continued by the executive.
Congress now seems to share the view that it is the place of the executive to make these decisions. Additionally they share the basic political assumption of the executive and the policy which follows it. Already in 2009 Senator Carl Lewin said that the civilian price is heavy, but that drone strikes are the most effective weapon available. The question which should be asked is: effective for whom?
If Congress is interested in transparency and accountability, this really means the drone program becoming formalized and institutionalized. As has been said, this explains the drop in drone strikes. But this only leads to a reduction in death numbers and thus the killing program can be politically legitimized for a longer period of time. It does not, however, change the program in its general trend, including the civilian death toll, and its general political assumptions or goals.
But because the program becomes institutionalized, it also becomes the new normal. Privately governmental officials have already admitted that it is the plan of the executive that the methods of the targeted killing through drones become permanently embedded into the political system. This would include the political primacy of the executive. It would also include the judicial decision making process the Administrations bureaucracy and system of lawyers. Additionally, since Obamas political leeway is dependent on the other branches of government, the White House presses on a rule book regarding drones.
The importance of this development can be seen in Pakistan, where the drone strikes seem to be driving the American policy. Indeed, the Dennis C. Blair, former director of national intelligence until he was fired in May 2010, said that this intensifying focus on strikes “reminded me of the body counts in Vietnam”
The War continues
It is wise to keep the example of Vietnam in mind. As the trauma of Vietnam continues to shadow over the executive, the political motivation for the drone war becomes clearer. It is the obvious reduction in American deaths – be it civilian or military – that makes it so much easier for Obama to continue with this policy. Besides some NGOs and few political activists, lawyers and journalists, there is no political force really contesting the program of the Administration. The executive is able to act unilateral as a result of the events of 9/11 and because the other branches of government are allowing it to happen. The focus on the legality and transparency is in the end a question of political legitimization. The question which should be asked instead is whether the program in itself in the interest of the American people.
Since the number of civilian deaths is probably much higher than the Administration is willing to admit, it is easily understandable that it antagonizes large parts of the population in the Middle East against U.S. foreign policy, as well as damaging the image of the United States in allied countries.
The continued military presence of the United States in these regions, as a result of economic and political interests, results in a constant influx of enemies of the United States and their policies. But the military supremacy of the United States disrupts this opposition and enables them to build up political allies, in form of civil governments as well as warlords with which a deal has been made. The drone program is thus a tool to break up Taliban opposition as well as opening up the possibility for the establishment of a more sympathetic regime.
Congress as well as the judiciary generally shares these basic assumptions and the political means which follow them. They also support the strength the executive currently possesses in shaping foreign (and domestic) policy. A clear cut opposition to these policies is only visible in a small group of people. Despite the fact that much information is available, the New York Times is discussing the “moral case for drones”.  There is widespread political consensus about the necessity of these goals, which stems on the one hand from the post-9/11 mentality and on the other from the general acceptance that U.S. economic and political interests are enforced through military means.
Again, the example of Vietnam comes to mind. Even then, Congress was only acting very reluctantly. What was necessary was a political movement – a conscious political intervention by a mass of the American public – that forced Congress to act. It acted not because it had this interest in mind from the beginning, but because it was much more dependent on public sentiment. If no concessions would have been made, the public opposition – including inside the military itself – could have grown even more explosive. In order to uphold the legitimacy of democracy it was necessary for Congress to step in. This kind of pressure is not existent towards the drone war in different countries or the monopolization of power in the hands of the executive. The executive will try to embed this kind of power permanently and it will require much political struggle to step back from the new normal. But the monopolization is not usurpation, since the other branches agree on the basic political assessment of what American interests are. These interests cannot but be enforced through military power as long as other nations are competing with the United States for economic dominance.
This development lies in the role of the executive and its relation to the other branches inside the political system of the United States. It led the linear development after 9/11, because the crisis expanded the ability and legitimacy of the executive further and was given consensually by the other branches. Also, Obama could not have taken on the drone war without Bush preceding him. This process is bigger than any political goal Obama could wanted to achieve, because it flows from the position of the President as the leader of the nation. Whether he is kept in check, is solely dependent on another political force redefining this position and role.
 (Lizza 2013)
 (Lewis 2005)
 (Shane 2013)
 Obama is relying on an „overbroad interpretation“ of the AUMF.(„Drone Strikes Test Legal Grounds for War on Terror“ 2013)
 (Posner 2013)
 (Goldsmith 2012), („The One-Paragraph Law Behind Obama’s Drone War“ 2013)
 (Gonzales 2002)
 („‘OK, fine. Shoot him.’ Four words that heralded a decade of secret US drone killings: The Bureau of Investigative Journalism“ 2013)
 (“Attorney General Eric Holder Speaks at Northwestern University School of Law.”)
 (Living Under Drones 2012)
 (Kilcullen und Exum 2009)
 (P. W. Singer 2009)
 (GREGORY 2011)
 (Krauthammer 2012)
 (Exploring Technology, Effectiveness, Consequences of Drone Warfare 2013).
 (Shane 2011)
 (McCRISKEN 2011)
 (Becker und Shane 2012)
 (Goldsmith 2012, 16)
 (Goldsmith 2012, 38), my emphasis
 (Goldsmith 2012, 189–191)
 („Drone Documents: Why The Government Won’t Release Them – ProPublica“ 2013)
 (Peter W. Singer 2012)
 (Shane 2011)
 („Drone is Obama’s weapon of choice – CNN.com“ 2013)
 (Bergen und Tiedemann 2010)
 („No evidence Congressional committee does ‘utmost’ to follow up drone civilian death claims: The Bureau of Investigative Journalism“ 2013)
 (Schmitt und Drew 2009)
 (Miller 2012)
 (Shane 2012b)
 (Becker und Shane 2012)
 (Becker und Shane 2012)
 („The Vietnam War, Still Haunting Obama – NYTimes.com“ 2011)
 (Masood und Shah 2011)
 („Global Opinion of Obama Slips, International Policies Faulted“ 2013)
 (Shane 2012a)
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