Senator Chris Murphy is not the ‘Elizabeth Warren of foreign policy’


Reposted at The Huffington Post.

On Thursday afternoon the Center on National Security at Fordham University School of Law hosted Sen. Chris Murphy (D-CT) for a discussion about U.S. foreign policy.

During the Q&A, I asked (broadcasted on Periscope) Murphy – who self-describes as a progressive on foreign policy and whom Buzzfeed called the “Elizabeth Warren of foreign policy” – why he voted in May 2014 to confirm David Barron to the U.S. First Circuit Court of Appeals. Barron, as acting head of the DOJ’s Office of Legal Counsel, wrote the legal memo that justified the extrajudicial drone killing of U.S. citizen Anwar al-Awlaki (and his 16-year-old son Abdulrahman) in Yemen in 2011.

“I don’t hold any judge to one decision,” Murphy said. “That’s a judge that had a long history of other decisions that were a pretty good advertisement.”

Aside from the fact that Barron was not a judge who issued rulings as a judge before Murphy voted to confirm him to do such a thing, since Barron joined the First Circuit the panel has not made any major decisions on issues of national security or the war on terror that he has voted in.

The one questionable move by Barron – the subject of my question to the Senator – that doesn’t disqualify him from the likes of Sen. Murphy is quite a significant one: enshrining in law the presidential power to authorize the extrajudicial assassination of a U.S. citizen without trial. Jameel Jaffer, deputy legal director of the ACLU, called this legal memo “disturbing … ultimately an argument that the president can order targeted killings of Americans without ever having to account to anyone outside the executive branch.”

If, by “other decisions that were a pretty good advertisement,” Murphy meant legal positions Barron had taken prior to joining the Obama administration, Murphy isn’t particularly wrong. In a 2008 Harvard Law Review article, Barron urged executive branch lawyers to push back against the executive’s increasingly monopolistic power as commander-in-chief:

[E]xecutive branch actors, particularly those attorneys helping to assure that the President takes care the law is faithfully executed, should not abandon two hundred years of historical practice too hastily. At the very least, they should resist the urge to continue to press the new and troubling claim that the President is entitled to unfettered discretion in the conduct of war.

But by 2010, just two years later as a lawyer in the Obama administration, by drafting a legal memo that further legitimated the president’s sweeping powers, Barron had acted in direct contradiction to what he advocated lawyers do in his article. So for the sake of Barron’s credibility in the mind of Sen. Murphy, Barron’s poor actions in 2010 invalidated his noble stance in 2008. It’s a classic case of a government official’s actions not matching their words. What Murphy considers to be Barron’s “other decisions that were a pretty good advertisement” thus remains unclear.

In his answer to my question, Sen. Murphy continued, “I also will probably have an unsatisfactory position to you and to some others when it comes to some of the new tools at the president’s disposal to keep this country safe.

“I would argue that we should put in place a much more comprehensive and meaningful review process when it comes to our drone strikes. I think Congress has to get in the game here. Congress has to be involved in that oversight process, or we could consider setting up some judicial oversight process to authorize drone strikes. But what we’re doing now is unsatisfactory,” he said, stopping short of explicitly opposing presidential power to authorize the assassination of U.S. citizens or detailing what exactly about drone program he finds “unsatisfactory.”

He also told me, “I also am somebody who ultimately did vote for the renewed version of the Patriot Act. I think that there are ways that we made it exponentially better, but I don’t deny that it is important to give the administration some new tools with which to try to track terrorists down.”

Murphy didn’t specify what “new tools” the president should and shouldn’t have to “track terrorists down.” Was he referring to the government’s “death by metadata” program (officially known as Geo Cell) in which the NSA “geolocates” the SIM card associated with a suspected terrorist, enabling the CIA or military to launch a strike on the individual in possession of the device? If so, that doesn’t seem like a very “progressive” position. According to The Intercept:

One problem, [a former drone operator] explains, is that targets are increasingly aware of the NSA’s reliance on geolocating, and have moved to thwart the tactic. Some have as many as 16 different SIM cards associated with their identity within the High Value Target system. Others, unaware that their mobile phone is being targeted, lend their phone, with the SIM card in it, to friends, children, spouses and family members.

Some top Taliban leaders, knowing of the NSA’s targeting method, have purposely and randomly distributed SIM cards among their units in order to elude their trackers. “They would do things like go to meetings, take all their SIM cards out, put them in a bag, mix them up, and everybody gets a different SIM card when they leave,” the former drone operator says. “That’s how they confuse us.”

Was Murphy referring to the government’s dubious Terrorist Screening Database, nearly half of whose 680,000 people are not affiliated with any terrorist group? Or was he referring to the no-fly list, whose length Obama has increased ten-fold since taking office?

Murphy’s support for the renewed version of the Patriot Act, known as the USA Freedom Act, doesn’t put him in the progressive camp, either. He had a chance to join fellow senators, led by libertarian Rand Paul, who opposed the act on the grounds that it didn’t go far enough in restricting the NSA. That faction simply wanted Section 215 of the Patriot Act – the section that gives the government broad surveillance power – to sunset as scheduled.

Although Jaffer, the ACLU lawyer, called the USA Freedom Act a “milestone,” he also said, “The bill leaves many of the government’s most intrusive and overbroad surveillance powers untouched, and it makes only very modest adjustments to disclosure and transparency requirements.”

To his credit, in September Murphy spearheaded a bill (that failed to pass the Senate) to block a huge U.S. arms deal to Saudi Arabia in light of the Kingdom’s brutal war against Yemen. That’s what a progressive foreign policy position looks like.

While Sen. Murphy often lands to the left of the majority of Congress on foreign policy, it’s otherwise clear that if he wants the “progressive on foreign policy” label, he needs to reconsider his positions on several aspects of the war on terror.

Disclosure: This writer provides research assistance to the Center on National Security on a weekly basis.

Photo: Melanie Stengel/New Haven Register

Fordham Students Condemn Revelations in the ‘Drone Papers’

Drone Papers

Originally published in the Fordham Observer.

In what NSA whistleblower Edward Snowden called the “most important national security story of the year,” The Intercept has published an eight-part exposé about the U.S. drone assassination program based on documents provided by a whistleblower within the intelligence community. The Drone Papers reveal the inner workings of President Obama’s covert kill/capture program between 2011 and 2013, a key window in the evolution of the drone wars.

Reporter Ryan Devereaux, in “Manhunting in the Hindu Kush,” part five of The Intercept’s investigation, describes Operation Haymaker, a campaign against Taliban and al Qaeda forces in northeastern Afghanistan. According to the documents, the term “jackpot” refers to an operation that kills its intended target, and anyone else killed in the airstrike is dubbed an “enemy killed in action” (EKIA) until proven otherwise. However, Article 50 of Additional Protocol I of the Geneva Conventions states, “In case of doubt whether a person is a civilian, that person shall be considered to be a civilian.”

Thomas H. Lee, Leitner Family Professor of International Law, considers this classification a possible violation of international law.“If a strike is on a military target in a military setting, and the bomber classifies everyone killed who is proximate to the target as ‘enemy combatant’ killed in action, does it violate the Law of War?  Arguably yes, under a strict reading of the Additional Protocol, which the United States did not ratify in large part because of concerns about issues just like this,” he said.

Ahmad Awad, Fordham College at Lincoln Center (FCLC) ’17, a history major, called the government’s EKIA classification “very, very bizarre. It’s usually ‘you’re innocent until proven guilty.’ It’s not that you’re an enemy… If they don’t have substantial evidence to prove that it is a potential enemy of the United States and they’re just labeling people as enemies, that’s horrible. That’s not right. That should not be done for people who possibly are just innocent civilians in one of these nations that we are authorizing strikes in.”
Jeanelle Augustin, FCLC ’16, an anthropology major, agreed: “It sounds totally contrary to what we say our own justice model is here in America.”Sapphira Lurie, FCLC ’17, a comparative literature major, said, “The term ‘enemy killed in action’ had to be invented to imply that those murdered in drone strikes could even be considered a possible threat. So here, the terminology points towards the editorial authority used by imperialists to justify their attacks.”

One document, detailing the period between May and September 2012, reveals that there were 19 jackpots and 155 EKIAs, meaning that almost nine out of 10 people killed weren’t the intended targets. Just months before that, President Obama defended what he called “very precise, precision strikes,” stating that “actually drones have not caused a huge number of civilian casualties.”

“In any other context, that would be a failing grade,” Augustin said. Shady Azmy, FCLC ’19, a psychology major, agreed: “Those are terrible statistics.” “That makes me feel that this drone program that we are doing is not that effective. It’s not an accurate program… that’s a very high collateral damage compared to what they’re saying about low collateral damage. It’s the complete opposite of what they’re intending to do,” Awad said.

The “low collateral damage” that Awad referred to is another of the Drone Papers’ revelations. In a May 2013 speech about drone policy, President Obama said, “there must be near-certainty that no civilians will be killed or injured” before a strike is authorized. But one document, described by journalist Cora Currier in “The Kill Chain,” part three of the investigation, shows that the “near certainty” principle isn’t actually applied to civilians. Currier reports that there must be “near certainty” that the target is present – not that no civilians will be killed or injured – and a “low CDE [collateral damage estimate],” meaning a low chance of civilian death or injury.

The Bureau of Investigative Journalism has been documenting this “collateral damage” for years, finding that between 159 and 261 civilians have been killed by drone strikes in Yemen and between seven and 52 in Somalia since 2002.

Augustin said, “If we’re not sure that civilians may or may not die, it seems to me as though we would be committing terror to those civilian populations.” Alvarez offered a metaphor: “It sounds like a guess and check. That sounds like when I’m writing code, and when I screw up the code, I just have to do it again.” And Awad asked, “What do they consider a low collateral damage estimate? How many innocent lives are lost?”

That same document, which reveals the administration’s two-step process for creating and acting on its kill list, shows that once President Obama approved a target to be killed, Joint Special Operations Command (JSOC) had at the time (and may still have) a 60-day window for lethal action in Yemen and Somalia in 2011 and 2012. The administration has nonetheless defended the drone program as a means to prevent “imminent threats” to the United States.

Awad said, “I don’t know how imminent the threat can be if they’re given a 60 day window. I think that an imminent threat would be one that we have substantial evidence to prove that he or she is within a short period of time, has the capability of either attacking the U.S. mainland or attacking a U.S. embassy, or that American civilians are at stake.” Daniel Alvarez, FCLC ’19, a philosophy major agreed: “I feel like that’s way too much time.”

While a 60-day authorization window may seem to Awad and Alvarez an unreasonably long period of time, Lee said it may not violate international law: “The proportionality/tailoring aspects of international law of war are very nebulous, but two months, as opposed to two years, seems okay unless it straddles a peace event that can reasonably be viewed as a material change in the circumstances.”

In the documents obtained by The Intercept, there’s a bevy of corporate language used to describe aspects of the assassination program: the “tyranny of distance,” a reference to the great lengths drones must fly from their bases to targeted countries; “baseball card,” a reference to a slide of information about a candidate for assassination that is presented to members of the chain of command; a slide titled “Manhunting Basics”; “Arab features” to describe someone being targeted; “Find, Fix, Finish,” JSOC’s assassination doctrine; and of course jackpot and EKIA.

Augustin called this language “definitely a mechanism to dehumanize people.” Awad said he was “shocked” by these terms. “It kind of makes it seem that this is a game, and it’s a hunting game,” he said.

The documents are also a further confirmation of CIA Director and former counterterrorism adviser John Brennan’s, FCRH ’77, role in the drone program, specifically his top role in deciding whom should be killed, portrayed in an illustration (pictured below) by The Intercept‘s Josh Begley. Fordham University awarded Brennan an honorary degree in 2012 and rejected a petition to revoke that degree this past May.


Chain of Command