Litigator Jameel Jaffer on his battle against U.S. drone ‘kill lists’
When it came time for Barack Obama to choose his weapon of war, he reached for a Predator drone packed with Hellfire missiles.
While he did not pioneer presidential use of unmanned aerial vehicles, he embraced covert UAV strikes like no one before. Invoking secret laws and presidential prerogatives, Obama personally authorized hundreds of strikes that killed thousands of people – mostly presumed terrorists and people around them – in faraway places, such as Pakistan, Yemen and Somalia.
Of arms and the man, you could say, Obama and drones mirrored each other, at least by reputation. Distant. Efficient. Precise and globally popular. And without pushing back against the drone program, the U.S. public for years allowed Obama to use his Predators in the name of fighting terrorists.
This may change. In only a few weeks, Donald Trump will have access to secret “kill lists,” which direct the U.S. bureaucracy to scour the world for targets in the name of the president, who essentially acts a judge, jury and executioner.
If the past is any indication, though, Trump will likely have to contend with Jameel Jaffer. A Canadian-born litigator who has taken several U.S. presidents to court, Jaffer has released a book titled The Drone Memos.
In it, he amasses hard-won legal documents spelling out what the public is allowed to know about presidential justifications for UAV strikes.
Jaffer spoke to The Globe and Mail in Toronto last week. He said he hopes someone in some court or congressional assembly may yet constrain what future presidents do with drones.
President-elect Donald Trump has spoken about using nuclear weapons, torturing terrorists, mass deportations and keeping Muslims out of the United States. How much power does the U.S. president really have?
I think that the sad, and somewhat surprising, thing is the president has vast powers in the field of national security.
And that is to a large extent because president [George W.] Bush claimed those vast powers and President Obama entrenched them.
We saw Americans willing to invest power in the presidency because they trusted the president.
Can Trump be trusted with a targeted-killing drone program?
Absolutely not. Now, I would have said the same thing about President Obama. You have the president and his closest advisers being able to decide which people ought to be killed and when and for what reasons. They don’t have the obligation to account for the use of that power to anybody.
Five years ago, you went to court for the father of an American terrorism suspect named Anwar al-Awlaki, who was in Yemen and marked for death.
I was at the American Civil Liberties Union at the time. We went to court to challenge the lawfulness of the kill lists. The real question in that case was who gets to decide whether somebody presents an “imminent” threat? And who looks at the evidence? And at what point?
Two weeks after Awlaki was killed, his 16-year-old son was killed in a separate drone strike. No one ever alleged he was a terrorist.
The court threw out the cases on the grounds that the question of whether drone strikes were lawful was for the president to decide. That one really bothers me more than any other case. You’re talking about a 16-year-old boy against whom the government never made any allegation. And he was killed in this strike 400 miles from where his father was killed two weeks before.
What is the argument for not requiring the government to provide some explanation to somebody of why it carried out that strike?
How did the boy’s grandfather feel? How did you feel?
When we got thrown out of court, he [the grandfather] just lost faith altogether in the American justice system and achieving anything like accountability and an explanation. My view is that, sometimes, it takes a long time to bring the law around. You can see it with a million civil-rights issues in the United States. I don’t like to lose, but I assume the losses are on the way to some eventual victory.