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Has Obama already violated his new and improved drone policy?

Has Obama already violated his new and improved drone policy?

Early Wednesday, a U.S. drone strike in the tribal region of Pakistan reportedly killed Wali ur-Rehman, the Pakistani Taliban’s second-in-command (in the blue vest above). The attack comes just six days after President Barack Obama unveiled tightened standards for carrying out lethal drone strikes — a policy revision aimed at making such strikes less frequent.

For that reason, the attack raises an uncomfortable question for defenders of the president’s prosecution of the war on terror: Did the president just violate his own highly touted and brand new policy guidance?

The short answer to that question is that we don’t know, since the policy guidance is classified. But the question may reveal something just as interesting about the hype surrounding the speech: Wednesday’s drone strike suggests that the president’s speech did not in fact represent a radical departure from past policy.

In evaluating Wednesday’s drone strike and its implications for last week’s address, there are three key documents: Obama’s speech and two accompanying fact sheets.

In laying out the "components of … a comprehensive counterterrorism strategy" during his speech, Obama asserted that "first, we must finish the work of defeating al Qaeda and its associated forces." As for using lethal drone strikes to accomplish that end, he pointed out that "under domestic law, and international law, the United States is at war with al Qaeda, the Taliban, and their associated forces." He also said that he would "continue to take strikes against high value al Qaeda targets, but also against forces that are massing to support attacks on coalition forces" in the "Afghan war theater."

Over at Wired, Spencer Ackerman homes in on a paragraph in one of the accompanying fact sheets to show how Wednesday’s strike undermined Obama’s "own new rules about restricting drone strikes":

[T]he United States will use lethal force only against a target that poses a continuing, imminent threat to U.S. persons. It is simply not the case that all terrorists pose a continuing, imminent threat to U.S. persons; if a terrorist does not pose such a threat, the United States will not use lethal force.

So was Rehman an imminent threat? Ackerman offers a quick history of Rehman’s long rap sheet but doesn’t come to a conclusion. But the bottom line is that it doesn’t matter. The administration’s definition of imminence, as explained in the paragraph introducing it, applies "outside areas of active hostilities," meaning that the restriction Ackerman cites to indict the president doesn’t apply in this case. By claiming broad powers in his fight in the "Afghan war theater" against "al Qaeda and its associated forces" Obama has all but given himself a carte blanche to carry out attacks in Afghanistan and Pakistan.

But let’s say for a moment that the administration’s conception of imminence had governed its actions in the strike against Rehman. Would that have made a difference? Probably not.

None of the documents released last week makes clear which definition of imminence the administration will use. But if the White House plans to use a definition at all similar to the one governing drone strikes against U.S. citizens, it is so broad as to be almost meaningless. That definition "does not require the United States to have clear evidence that a specific attack on U.S. persons and interests will take place in the immediate future." A "high-level official could conclude, for example, that an individual poses an ‘imminent threat’ of violent attack against the United States where he is an operational leader of al-Qa’ida or an associated force and is personally and continually involved in planning terrorist attacks against the United States." In short, the only criteria required to fulfill this definition of imminence is membership in a group continually plotting against the United States — even if that plot has not reached its end-stage. Put even more succinctly: If you are a terrorist plotting against the United States, you are an "imminent" threat.

Obama, it seems, is trying to have it both ways — keeping his effective drone strikes while getting his liberal critics off his back. The president has now thrown several bones to the left: He has once more pledged to close Guantánamo, reintroduce a media shield law for journalists, and consider some kind of oversight mechanism for drone strikes. But at the same time he has retained expansive legal authority to carry out drone strikes at his will.

There are many details of the president’s policies — such as whether he will continue the controversial tactic known as "signature strikes – that remain unclear. And until the administration provides more clarity, the only ways to judge Obama’s drone program are by the legal justifications publicly available and the number of dead bodies in the remote areas of the world frequented by America’s drones.

Judging by the five dead in Miram Shah this week, not much has changed.