By Tyler Wilch, June 22, 2017,
Reposted from CounterPunch.
This type of sovereignty is seen in the targeting of US citizens, the manipulation of legal language, the lawlessness of the campaign, and the deference to decision-makers. These factors come together to reveal a theological US sovereign with the power to use drones to kill people across the world with no real limitations.
In Political Theology: Four Chapters on the Concept of Sovereignty, Carl Schmitt argues that “all significant concepts of the modern theory of the state are secularized theological concepts…[which] were transferred from theology to the theory of the state, whereby, for example, the omnipotent God became the omnipotent lawgiver.” State power acts under many disguises, whether it be as executive power, police, pardoner, or welfare institution, but is always the same invisible force. The state’s various institutions and leaders, as well as its powers over law and life, establish a mysterious and mighty collective figure, which acts and is modeled after a God. Political sovereignty appears as divine and awe-inspiring because we, the people, cede our power to the sovereign, and then deny or forget that this giving away ever occurred. According to Wendy Brown, wherever sovereignty is held, whether it be in a single figure, the people, the rule of law, or the rule of the people, it “sustains a historical, performative, and rhetorical link with God and a significant reliance on a religious modality of belief and recognition.”
The theological nature of the power held by the US sovereign in drone policy is revealed in the lawlessness of the operation, as well as in the sovereign’s lack of accountability to anyone. Drone killings, especially in areas where the United States isn’t explicitly at war, are illegal under both international law and under an Executive Order banning assassinations. Additionally, targeting United States citizens in this manner is an obvious violation of the due process rights that are central to the US Constitution. The argument that the US can target anyone they deem associates of al-Qaeda anywhere in the world under the 2001 Authorization for the Use of Military Force is faulty at best, especially considering many targeted groups didn’t exist in 2001. Rather than being laws, the structure and guidelines of the drone program are simply weak rules which were established in secret by Executive officials and can just as easily be altered or overridden by Executive offices. The guidelines championed by the Obama Administration cannot be considered laws, as they were not enacted or discussed by any legislature, and because they were not created or released until the drone war was waging for many years. The Obama Administration claimed that they could carry out drone attacks within a country’s borders when the US deems they are “unable or unwilling to take action against the threat.”
Much of the lawlessness and lack of accountability characteristic of the Obama Administration’s usage of drones is revealed in the life and death of Anwar al-Aulaqi. Al-Aulaqi was an American citizen and al-Qaeda affiliate who was targeted and murdered in Yemen on September 30, 2011. His targeting was challenged in court prior to his death, with it being ruled both that killing him can be deemed legal based upon secret justification and evidence, and that his killing by drone couldn’t be challenged in court after his eventual death. The suit brought to court by al-Aulaqi’s father simply asked the US government “to say what the law was,” according to the ACLU’s Jameel Jaffer, but it was declared that the basis for targeting and killing an American citizen could be deemed ‘lawful’ with secret legal justification. Further, al-Aulaqi’s sixteen-year-old son Abdulrahman, also an American citizen, was murdered in a separate drone strike in Yemen on October 14, 2011. The US released no apology or justification for Abdulrahman’s death. Under the framework established by the Obama Administration, they did not have to explain why Abdulrahman, an American child, was killed in a targeted drone strike. The ability to target and kill Americans shows that drone-related decisions can supersede both international law (a supposed restraint on sovereign power) and national law.
The godly sovereign, whether it be in the figure of an individual or a machine-like bureaucratic system, does not have to explain itself when it decides who is exempt from law. Despite the executive and unchecked nature of the Obama Administration’s drone policy, legal advisors stressed the importance of their actions being “understood as lawful by others both at home and abroad in order to show respect for the rule of law.” Through this belief, actions can be understood lawfully through deference to sovereign power, despite glaring violations of actual written law. Essentially, in an extension of even the Bush-era policy of indefinite detainment, the drone program established within the Executive Branch the power to be an unchecked global arbiter of death.
Further, US sovereignty’s political theological power is revealed in an ability to expand and alter the meaning of terms and concepts in order to justify drone violence. If the theologically-produced sovereign is the “source of law and above the law” as scholar Wendy Brown claims, then it also had the ability to interpret and manipulate the language of the law any which way. The ACLU’s Jameel Jaffer explains that the terms used by the Obama Administration were “very malleable…invented, and…by design, vague and manipulable.”
Assassination as a practice is illegal under US law, as is murder and manslaughter. In the targeting of US citizen Anwar al-Aulaqi, an Office of Legal Counsel Memorandum stated that the assassination ban “bars only ‘unlawful killings.’” Attorney General Eric Holder accompanied this in a speech in March of 2012 where he argued that drone killings are not assassinations because “assassinations are unlawful killings.” Here, ‘assassination’ and ‘unlawful killing’ are rendered almost meaningless, as the top legal official asserts the almost self-explanatory legality of killings carried out by the state. These assassinations that are not assassinations exist within the paradoxical sovereign space of exception as described by theorist Giorgio Agamben, wherein “it is impossible to distinguish transgression of the law from execution of the law.”
The manipulation of law and language in the context of drone warfare extends to the understanding of due process, a core tenant of US law. Former Attorney General Eric Holder explained in a 2012 speech that ‘due process’ and ‘judicial process “are not one and the same, particularly when it comes to national security. The Constitution guarantees due process, not judicial process.” This statement made the right to due process guaranteed by the Constitution meaningless. Essentially, in matters of national security, US citizens cannot challenge in court the government’s plan to kill them by drone strikes, and cannot have their eventual killing challenged for them. Instead, they simply get the right to have executive officials try their best to be responsible in targeting them for death. This type of due process is more reminiscent of a colonial order than a democratic one. The unilateral alteration of meanings made it so the drone killing of anyone deemed a threat, even US citizens, essentially anywhere and at any time, could be described as legal, not assassination, self-defensive, and in response to an imminent threat.
The theological sovereign power of drone warfare, while diffuse, is in great deal located within the President as the main figure of US sovereignty and main ‘decision-maker’. Key Justice Department White Papers explicitly place the life or death power of a drone strike in a “decision-maker,” who will merely be given a listed set of things to consider when making this decision. The decision-maker from January of 2009 to January of 2017 was primarily former President Barack Obama.
In an interview in late 2016, Obama describes the reasons behind his 2013 release of the Presidential Policy Guidance on Drones, years into his presidency and drone war. He states that he was “trying to institutionalize rigorous debate” regarding the presidential and military power of drone killings by creating this internal mechanism and policy structure, as well by declassifying the case of Anwar al-Aulaqi. Here, we can see that even an attempt to make things more democratic and more structured was done based on the President’s role as decision-maker, not through democratic or law-based means.
Obama was able to carry out drones strikes for years before the Policy Guidance or the declassification of legal justifications, and even then, he presented Executive rules and not laws. As a result, President Donald Trump is already dismantling them, as outlined in Rupert Stone’s “Should we be scared of Trump’s drone reforms?” In a 2013 speech, Obama stated that “over the last four years, my administration has worked vigorously to establish a framework that governs the use of force against terrorists” which was codified into the Policy Guidance he had just signed. These were not four quiet years, however, where the US was waiting for clear laws to follow on drone-use, but four years of drone attacks without legal backing. (These years certainly did not include democratic input from Americans or consider input from people in Afghanistan, Pakistan, Yemen, etc.)
The Presidential Policy Guidance of 2013 further reveals the unlimited ability of the US executive to wield military drones globally. The Presidential Policy Guidance explicitly states the following:
Nothing in this PPG shall be construed to prevent the President from exercising his constitutional authority as Commander in Chief and Chief Executive, as well as his statutory authority, to consider a lawful proposal from operating agencies that he authorize direct action that would fall outside of the policy guidance contained herein, including a proposal that he authorize lethal force against an individual who poses a continuing, imminent threat to another country’s persons.
The Executive-made policy on drones still reserves the right for the President to act in ways other than those outlined and discussed. With this being the case, the unlimited discretion and complete power over drone killings which was wielded by the Bush Administration first, and then the Obama Administration in a much-accelerated fashion, was further cemented as a permanent power of the US Executive. Jameel Jaffer argues that when it comes to the usage of military drones, all three branches of the US government “did not subject any meaningful constraint that could not be lifted by a stroke of the next president’s pen.” This is exactly why President Obama was able to repeatedly claim responsibility for the entire process, both in success, and in the rare instance of admitted failure, such as when he offered an apology for the killing of both an US and an Italian aid worker.
The cementation of the power to wage drone warfare in the abilities of the President is evidenced in President Trump’s acceleration of drone-use in Yemen in the early months of 2017. Further, Trump unilaterally made the power to carry-out drone strikes even more diffuse, giving the CIA further authorization, and expanding the individuals who can make people exempt in the name of US sovereignty. Trump’s drone war has gone virtually unnoticed within mainstream media discourse, despite widespread media opposition to Trump, displaying the general acceptance that this power resides within the US sovereign going into the future. Under Trump, the U.S. state retains the power to ignore and manipulate their own laws, as well as international ones, with no repercussions. It seems that the godly power to model and shape all of this, to decide who dies, rests within the President, the Executive Offices, the Deep State, and the military regardless of perceptions of any of these forces as malevolent.