John Yoo on the Obama administration’s drone memo


When I first read of the Obama administration’s drone memo earlier in the week, I idly wondered what John Yoo would think of them.

You remember him. He’s the lawyer who wrote the “Torture Memos” for the Bush administration.

Well, now I don’t have to wonder, because he wrote what he thinks of the latest development in The Wall Street Journal today.

The general thrust of his piece is that the great flaw in the current administration’s justification for its drone program is that it’s based not in the assumption that we are at war with al Qaeda, but on the assumption of so many on the antiwar left that terrorism should be treated as a crime. As he puts it, “the Obama administration is trying to dilute the normal practice of war with law-enforcement methods.” Which means you have to go through extra gyrations of rationalization to order a drone strike.

I’ll let others argue over that. What intrigued me was the ethical question Yoo raised at the very end of his piece:

Rather than capture terrorists—which produces the most valuable intelligence on al Qaeda—Mr. Obama has relied almost exclusively on drone attacks, and he has thereby been able to dodge difficult questions over detention. But those deaths from the sky violate personal liberty far more than the waterboarding of three al Qaeda leaders ever did.

That’s something else I’ve been thinking about: Which is worse, taking someone captive and mistreating him, or killing him?

There’s the related question: Is the killing of our enemies with essentially a deus ex machina from the sky, with no risk to Americans, rather than facing them in battle, the morally preferable course? OK, most Americans would probably say “yes,” to that one, but let’s address the first question: Is killing preferable, morally and ethically, to capturing and torturing?

And no, those aren’t the only two options we have. But that’s the question Yoo posed, and I find it an interesting one.

18 thoughts on “John Yoo on the Obama administration’s drone memo

  1. Kathryn Fenner

    In war, it is assumed that people will be killed. This is not good, but a discussion for another day. The USA is supposed to be one of the honorable players, We should be above torture.

    Besides, the information generated by torture, contrary to what we see on TV, is notoriously unreliable!

  2. Mark Stewart

    Targeted death from above is hardly the same as carpet bombing, let alone firebombing, entire cities.

    Why do we angst ourselves like this? It is a war. So of course it is ugly, cruel and deadly.

    He is wrong to justify his torture program. There is no similarity to that and targeted drone strikes on any moral or ethical plane.

  3. Silence

    I have a better question – Where in the US Constitution does it say that the President can unilaterally authorize the extra-judicial killing (assasination) of American citizens? We are on a slippery moral slope.

    1. Ralph Hightower

      So you’re saying that if we had known the intentions of Timothy McVeigh, that we should not have stopped him from carrying out the Oklahoma City bombing and just let him turn the Murrah Federal Building into a crime scene. A surgical drone strike may have stopped the Oklahoma City Bombing.

      Yes, this is a slipperly slope, but if there is some individual or terrorists wanted a kill ratio, then we should do all possible to stop it from happening.

      I don’t agree with collateral damage.

        1. Brad Warthen Post author

          That’s actually the sort of question I was getting at.

          There are people I deeply respect who were and remain adamantly opposed to our invasion of Iraq, but would have endorsed taking out Saddam and Saddam alone.

          I can’t quite agree, partly on grounds specific to that case, but also in general, I have qualms about the “assassinate the key guy” approach. And I realize that’s an irrational response, but somehow I find the deliberate killing of a specific person as somehow more chilling than a battle in which many people may be killed, but in which the killing is not personal. As I type it, it seems quite mad — isn’t the killing of one guilty party preferable to the killing of many people who are relatively innocent? Yes. But there’s something qualitatively different about deliberately setting out to kill a particular person that confuses my mind. It’s like the difference between first-degree homicide and manslaughter…

          I can’t explain it in rational terms because it’s not rational. Maybe its some atavistic resistance to regicide; I don’t know…

  4. Phillip

    Thank you, Silence, for asking one of the key questions at the heart of all of this. In an era of hyperpartisanship, I was heartened this week to see that tough questions have been directed at John Brennan from Senators of both parties. This is encouraging.

    This casual acceptance of the fact that “we are at war…” underlies the whole problem with all these questions about drones, torture, etc. What conditions must be satisfied in order for us to no longer be “at war”? You’ll notice that question is never satisfactorily answered. If we must consider ourselves “at war” for as long as any terrorist threat against us exists anywhere in the world, then what we have essentially decided is that we shall be at war permanently. While this may be a boon for the defense industry and those in Congress who do their bidding, this decision to permanently be at war is not something that has been arrived at via intensive national debate or official declaration of such by the Congress. It’s just something that we’ve drifted steadily into over the past decade.

    Once you’ve decided that rather than guarding against specific terrorist threats, you are actually “at war,” a whole range of policy options and assumptions follow, including expanded executive powers, the complicity of the populace in ceding a bit of civil liberties for the sake of security, and so forth. As Cicero warned, “In times of war, the law falls silent.” How convenient (and profitable, too!) to be able to term this a War on Terror, for it has no end in sight, none that I can see anyway.

    Mark says “targeted death from above is hardly the same as carpet bombing, let alone firebombing, entire cities.” Yes, but you could also say mass-murderer X shooting 6 people down is hardly the same as firebombing entire cities. Doesn’t make the first scenario any more acceptable or morally justified necessarily. It’s a comforting, but false juxtaposition that assumes only the two choices (much as Yoo only assumes the choice between killing and torturing captives). The assumption, again, is based on the unquestioned state of affairs that we are at war. Granted, you could say that about Afghanistan, but we are withdrawing most troops from there before long. Do you that American political leaders will say we are no longer at war at that point? Don’t bet on it.

  5. tavis micklash

    There is a cost benifit ratio to be applied here.

    For every strike on a terrorist there is a cost. Bad blood with the country you just violated to get the terrorist or collateral damage against innocents that happen to be in the same area. Also the smouldering remains are a picture that the local terrorists use to demagogue the united states to aid there recruitment.

    For every head we strike down how many rise up in their place?

    The strikes are effective in decentralizing the operations. They are more spread out and the threat of missiles from the sky hampers their ability to get together to train and plan.

    The imminent threat criteria and their basis for choosing targets is crap though. In reality we have no idea its an imminent threat and in the active stage. All we know is that they are on a kill list and we have their location.

  6. Steve Gordy

    One of my friends asked this morning, “How would we feel if some foreign power sent aircraft over our hometown to take out bad guys without further notice?” Silence is right that this is a slippery slope, but it’s something we put ourselves in for when we decided to declare war on “terror.” Like the “War on Poverty” or the “War on Drugs,” we’re likely to find that it’s a war with no end and infinitely elastic boundaries.

    1. Brad Warthen Post author

      All due respect to you and Silence, but no, it isn’t. A slippery slope. That slope only exists in theory, in the “what if” realm that combines moral equivalence with alternative-history kinds of supposition.

      In the real world, there is no such slope, slippery or otherwise.

      1. Steven Davis II

        So if we invade Pakistan’s air space to take out someone we want to kill it is okay. As is Pakistan’s ability to invade US air space to take out someone they want to kill.

        Actually I don’t care what Pakistan thinks of our invading their airspace, but if they invade ours I suspect we’ll be invading theirs very quickly. They knowingly hide Al-Qaeda leaders within their boarders and the Obama administration is still pumping millions of dollars to their government in aid.

  7. Dave Crockett

    I have to wonder how long it will be before those we are “at war” with start using drone strikes against our allies in that part of the world, then in Europe and finally in this country. I fear the technology that makes drone warfare so attractive to us will not stay limited to us for much longer.

    I, too, am concerned about how we have drifted to this point. It’s been more than ten years in the making, though. I think the Gulf of Tonkin Resolution was the closest this country has come to a declaration of war since WWII, and my understanding is that most historians think the resolution was largely a pretext to justify decisions that had already been made regarding U.S. involvement in Viet Nam. Since then, Congressional discussion of American wars against X and formal Congressional declarations of those intents has not been seen. Even if 9/11 had never happened, I suspect we’d still be exactly where we are now.

    Is war without end really our destiny?

    1. Brad Warthen Post author

      I think you’re forgetting the Iraq War Resolution. I don’t see why the Tonkin resolution was more of a declaration than that.

      And yes, someone will someday have that technology. And we’ll have to figure out what to do about it. Military history is a long tale of new measures meeting countermeasures, back and forth. Once, men who wielded the English longbow were invincible. But that ended, as will this.

      1. Steve Gordy

        Brad, if I recall correctly, the Iraq War Resolution gave the President the right to take military action against Iraq in order to enforce the UN resolutions calling on Iraq to give up WMDs. As I further recall, the President was in such a hurry to get to the war that the UN inspectors hardly got a chance to get to work before they had to get out.

        Also, you blow off far too readily what might happen if an unfriendly power uses drones over our territory. “We’ll have to figure out what to do with it,” is a cop-out. When that day comes, the talk won’t be of countermeasures, rather of retaliation against anyone whom we think might be guilty.

        1. Dave Crockett

          I agree, Steve.

          The first time a drone takes out as much as an empty Krispy Kreme truck in the middle of a vacant field somewhere outside of Anytown, USA, there will literally be hell to pay. And we will have largely brought in our ourselves, I fear.


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