Anytime, Anywhere

From the start of the "War on Terror" two decades ago, many policies implemented under its heading have been blatantly unlawful. In order to justify them, therefore, the two prior administrations - Bush's and Obama's - found it necessary to rely on certain legal fictions. Torture wasn't really torture, Bush's legal team said; it was "enhanced interrogation." We weren't really conducting assassinations in any country anywhere in the world, regardless of whether or not we were officially at war there, said Obama administration officials; we were simply engaged in a conventional armed conflict with an unconventional foe: one whose unique characteristic was that they operated across and beyond state boundaries.

The pattern of the Trump administration has been to abandon these legal fictions one by one, and to embrace straightforwardly the underlying illicit actions that they made possible. Such is almost always the pattern with legal fictions, of course. They provide no real safeguard against human rights violations - in fact, they make them possible. They serve to permit unlawful practices under the mantle of legality, and once these practices have been normalized and routinized, the original fiction can be abandoned. In every sense, therefore, Bush's and Obama's policies made Trump's possible.

This can be true, however, at the same time it is also true that the abandonment of the original legal fictions is a new and dangerous escalation.

During Trump's campaign for office, he repeatedly defended CIA torture, recall. He did so, however, not in the way the Bush administration would have done. He did not say that CIA torture was not really torture, and therefore it was okay. He said that torture was great. He said this because he has the infantile moral sense of a Hollywood action movie, where the "good guys" routinely rough up, threaten, and break the limbs of anyone from whom they demand information, and the moment is always played for cheers from the audience, or even laughs.

As for the targeted killing program, it once seemed important to people with power that they argue the program had something to do with an existing Congressional authorization of military force. The obvious legal and policy objection to Obama's drone strikes, after all, was that they occurred outside of any active theater of hostilities; outside of any country with which we were officially at war; that they were in fact assassinations and extrajudicial killings of individuals who had been selected for murder based on an opaque, secretive process wholly ungoverned by the rule of law.

Defenders of the policy could always fire back, however, that we were officially at war with Al-Qaeda and related international terrorist groups, according to the 2001 authorization of military force, and that it was in the nature of this particular adversary that they operated across borders. In this sense, we were firing on enemy combatants engaged in active hostilities, rather than nationals of countries with whom we were not even fighting.

This was, as I said, a legal fiction. The 2001 AUMF was stretched to breaking point, folding in innumerable conflicts with disparate armed groups in Yemen, Somalia, Iraq, Syria, Pakistan, and anywhere else the United States chose to launch a drone strike, all of whom were engaged in very different hostilities and motivated by a variety of sectarian and ideological perspectives. But people still found it necessary on some level, if only to minimize cognitive dissonance, to invoke the idea behind it - the "War on Terror" - as a governing foundation.

Even when the Obama administration killed U.S. citizens in targeted strikes, including a 16 year-old boy, therefore, its claim was always that the people it was targeting were active participants in non-state terrorist networks engaged in active hostilities with the United States. The administration didn't want to perpetrate military strikes in countries with whom we were not at war, we were informed by their defenders; they were simply forced to do so by the fact that our adversary in this conflict was a non-state transnational actor.

Now, however, Trump has assassinated a major military leader of another country. A country with whom the United States is not officially at war. And he did so entirely without informing Congress.

This is a shocking and virtually unprecedented aspect of the killing of Qasem Soleimani that seems to have garnered less attention. Soleimani may have been engaged in plotting and carrying out terrorist activities. He almost certainly was responsible for atrocious violations of human rights. But his role in these actions was not as a member of a non-state terrorist network, operating outside the bounds of state power. He was a major military leader, acting on behalf of the government that employed him. If he can be killed in a drone strike, there is virtually no limit to the powers of assassination the United States has arrogated to itself. The thin curtain of the earlier legal fictions has been torn aside.

Was Soleimani such a bad person that we shouldn't care? Well, the danger of any new absolute power over life and death lies not only in how it has been used, but in how it might be used. This is the problem with arbitrary power.

We tend to forget this. Often, debates in the United States about drone killings center on the direct consequences of these strikes. We assess civilian casualties and whether these strikes were sufficiently precise and proportionate (and even by these metrics, and even with the Trump administration and U.S. military rolling back reporting requirements for them, by the way, the drone program's record is still atrocious). This myopic focus on measurable effect, however, ignores the real nature of terror.

Terror operates not just by the violence it does, but by the violence it might do. This is the secret of the terrorist actions people like Soleimani have sponsored. By killing some innocent people at random and when they are wholly unsuspecting, terrorism sends a signal that anyone might be a target; and so all feel at risk. By the same token, authoritarian strongmen don't always operate by silencing every single one of their opponents. Sometimes, as in Putin's Russia or Hernandez's Honduras, they simply ensure that enough people are gunned down or disappeared under mysterious circumstances that all might be terrified into silence.

If the United States is claiming for itself the unlimited legal authority to kill anyone it judges to be a threat, anywhere in the world, regardless of whether we are at war with that country, then we have placed a significant portion of humanity under that same cloud of terror. As described in an unforgettable article in the Intercept published on Christmas day 2019, this is in fact the situation we have created for many people in vast swathes of Africa, the Middle East, and Central Asia. We have done so by maintaining a hovering fleet of drone aircraft, keeping up a terrifying and inhuman hum, and threatening at any moment to rain death upon the people below.

Some of the victims of these strikes might be "bad people." Some might be part of terrorist networks. Some might be members of foreign militaries. Some might be civilians who just happened to be in the way. The people below, living in the perpetual shadow of these drones, have no way of knowing which it will be.

They are, in short, living with the terror of arbitrary power, knowing that other people just like them have been killed without expecting it, in the blink of an eye, not knowing if today it might be their turn. As the authors of the Intercept piece put it, "Try to imagine being surrounded by your family, all of you filled with acid anxiety about the buzzing far overhead, the persistent staring eye above your home, that may at any moment obliterate you and everything you love."

I am reminded of one of Anna Akhmatova's poems, in which she depicts what it means to live under the shadow of the Stalinist terror. The people living with the effects of our drone program are, like her, praying to themselves and their loved ones:

Is today really the date?
Please go away, wait
Till another day...
Don't let it be me
Let it pass by me [...]
O gospodi! [D.M. Thomas trans.]