by Marjorie Cohn and Jeanne Mirer
The Bush administration detained and tortured suspected militants; the Obama administration assassinates them. Both practices not only visit more hatred upon the United States; they are also illegal. Our laws and treaties prohibit torture. The Constitution forbids the government from depriving any person of life without due process of law; that is, arrest and fair trial. Yet President Obama has approved the killing of people, many of whom were not even identified before the kill order was given.
Jo Becker and Scott Shane reported in the New York Times that Obama maintains a “kill list.” After consulting with his counterterrorism adviser John O. Brennan, Obama personally makes the decision to have individuals executed. Brennan was closely identified with torture, secret prisons, and extraordinary rendition during the Bush administration.
The Times story, based on interviews with three dozen current and former Obama advisers, reports that “Mr. Obama has avoided the complications of detention by deciding, in effect, to take no prisoners alive. While scores of suspects have been killed under Mr. Obama, only one has been taken into U.S. custody” because he doesn’t want to add new prisoners to Guantanamo.
The leak of the kill list angered Republicans, evidently because they believe it demonstrates Obama’s “strength” in foreign policy. Some progressives who do not fully understand the profound illegality of drone attacks find them preferable to the United States’ all out invasions of more countries. We all need to understand that the unlawful precedent the United States is setting with its use of killer drones not only undermines the rule of law; it also will prevent the United States from reasonably objecting when other countries that obtain drone technology develop “kill lists” of persons those countries believe represent threats to them.
On June 15, for the first time, Obama publicly acknowledged that his administration is engaging in “direct action” in Yemen and Somalia. Although the United States is not at war with either country, George W. Bush’s “War on Terror” has morphed into Obama’s “War on Al Qaeda.” Obama’s “war” has been used as an excuse to assassinate anyone anywhere in the world whenever the President gives the order.
But “there is not a distinct entity called Al Qaeda that provides a sound basis for defining and delimiting an authorized use of force,” according to Paul P. Pillar, deputy director of the CIA’s Counterterrorist Center from 1997 to 1999. The United States is not at war with Yemen and Somalia. Even if Obama identifies certain people living in Yemen or Somalia as members of Al-Qaeda who are desirous of committing acts of terror against the people of the United States, there is no basis in law for our government to declare war on individuals it considers a threat. The United States has legal means to indict and extradite, both under U.S. and international law.
Since 2004, some 300 drone strikes have been launched in Pakistan. Twenty percent of the resulting deaths are believed to have been civilians. The Pakistan Human Rights Commission says U.S. drone strikes were responsible for at least 957 deaths in Pakistan in 2010.
In the three and one-half years since Obama took office, between 282 and 585 civilians have been killed, including more than 60 children. “The CIA’s drone campaign has killed dozens of civilians who had gone to rescue victims or who were attending funerals,” a new report by the London-based Bureau of Investigative Journalism found.
But, according to the Times article, Obama has developed a creative way to count civilian casualties. All military-age men killed in a drone strike zone are considered to be combatants, “unless there is explicit intelligence posthumously proving them innocent.” As a result, Brennan reported last year that not one civilian had been killed during one year of strikes. An administration official recently claimed that the number of civilians killed by drone strikes in Pakistan was in the “single digits.” Three former senior intelligence officials told the Times that they couldn’t believe the number could be so low.
Obama, who has been targeting “suspected militants” (called “personality strikes”) in Pakistan, Yemen and Somalia, even killing U.S. citizens, has authorized expanded drone attacks - whenever there are suspicious “patterns of behavior” at sites controlled by a terrorist group. These are known as “signature strikes.” That means bombs are being dropped on un-identified people who are in an area where suspicious activity has taken place. This goes beyond the illegal practice of “targeted killing.” People are being killed without even being an identified target.
The administration justifies its use of armed drones with reference to the Authorization for the Use of Military Force that Congress passed just days after the September 11 attacks. In the AUMF, Congress authorized force against groups and countries that had supported the terrorist strikes. But Congress rejected the Bush administration’s request for open-ended military authority “to deter and preempt any future acts of terrorism or aggression against the United States.” Deterrence and preemption are exactly what Obama is trying to accomplish by sending robots to kill “suspected militants” or those who happen to be present in an area where suspicious activity has taken place.
Moreover, in the National Defense Authorization Act of 2012, Congress specifically declared, “Nothing in this section is intended to . . . expand the authority of the President or the scope of the Authorization for the Use of Military Force [of September 2001].”
Drone attacks also violate well-established principles of international law. A targeted killing is defined as the “intentional, premeditated, and deliberate use of lethal force . . . against a specific individual who is not in the physical custody of the perpetrator,” according to Philip Alston, former UN Special Rapporteur on Extrajudicial, Summary, or Arbitrary Executions. Targeted or political assassinations – sometimes known as extra-judicial executions – run afoul of the Geneva Conventions, which include willful killing as a grave breach. Grave breaches of Geneva are punishable as war crimes under the U.S. War Crimes Act.
Christof Heyns, the current UN Special Rapporteur on Extrajudicial, Summary, or Arbitrary Executions, expressed grave concern about the targeted killings, saying they may constitute war crimes. He called on the Obama administration to explain how its drone strikes comport with international law, specify the bases for decisions to kill rather than capture particular individuals, and whether the State in which the killing takes place has given consent. Heyns further asked for specification of the procedural safeguards in place, if any, to ensure in advance of drone killings that they comply with international law. He also wanted to know what measures the U.S. government takes after any such killing to ensure that its legal and factual analysis was accurate and, if not, the remedial measures it would take, including justice and reparations for victims and their families. Although Heyns’ predecessor made similar requests, Heyns said the United States has not provided a satisfactory response.
Heyns also called on the U.S. government to make public the number of civilians collaterally killed as a result of drone attacks, and the measures in place to prevent such casualties. Once again, Heyns said the United States has not satisfactorily responded to a prior query for such information.
Likewise, UN High Commissioner for Human Rights Navi Pillay recently declared that U.S. drone attacks in Pakistan violate the international law principles of proportionality and distinction. Proportionality means that an attack cannot be excessive in relation to the anticipated military advantage sought. Distinction requires that the attack be directed only at a legitimate military target.
The United States has ratified the International Covenant on Civil and Political Rights. The ICCPR states: “Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life.” The Covenant also guarantees those accused of a crime the right to be presumed innocent and to a fair trial by an impartial tribunal. Targeted killings abrogate these rights.
Self defense under Article 51 of the United Nations Charter is a narrow exception to the Charter’s prohibition of the use of force or the threat of force to settle international disputes. Countries may engage in individual or collective self-defense only in the face of an armed attack. To the extent the United States claims the right to kill suspected terrorists or their allies before they act, there must exist "a necessity of self-defense, instant, overwhelming, leaving no choice of means, and no moment for deliberation,” under the well-established Caroline Case. Obama’s drone attacks do not meet this standard.
The United States’ resort to ever increasing targeted killings is a direct result of the “War on Terror” the Bush administration declared after 9/11. Bush declared a perpetual war on a tactic and claimed all Al-Qaeda and Taliban are terrorists who may be preemptively killed as a form of self defense, rather than being arrested and tried for criminal acts. Although he does not use the phrase “War on Terror,” Obama has continued and even extended this policy. It is the product of a powerful military industrial complex in the United States which sees the use of force as the first step to resolving disputes rather than a last resort, notwithstanding the strictures of the UN Charter.
This practice sets a dangerous precedent. Heyns opined that “any Government could, under the cover of counter-terrorism imperatives, decide to target and kill an individual on the territory of any State if it considers that said individual constitutes a threat.” Heyns also cited information that indicates “the attacks increasingly fuel protests among the population.” Heyns said the “lack of transparency” and “dangerous precedent” that drone attacks represent “remains of grave concern.”
Drone strikes are also counterproductive. They breed increased resentment against the United States and lead to the recruitment of more terrorists. “Drones have replaced Guantanamo as the recruiting tool of choice for militants,” Becker and Shane wrote in the Times article. They quoted Faisal Shahzad, who, while pleading guilty to trying to detonate a bomb in Times Square, told the judge, “When the drones hit, they don’t see children.” Pakistani ambassador Zamir Akram told the Geneva Forum last week that the drone attacks are illegal and violate the sovereignty of Pakistan, “not to mention being counter-productive.” He added, “thousands of innocent people, including women and children, have been murdered in these indiscriminate attacks.”
Becker and Shane noted, “[Obama’s] focus on strikes has made it impossible to forge, for now, the new relationship with the Muslim world that he had envisioned. Both Pakistan and Yemen are arguably less stable and more hostile to the United States than when Mr. Obama became president. Justly or not, drones have become a provocative symbol of American power, running roughshod over national sovereignty and killing innocents.”
Ibrahim Mothana, who wrote an op-ed in the Times titled “How Drones Help Al Qaeda,” agrees. “Drone strikes are causing more and more Yemenis to hate America and join radical militants; they are not driven by ideology but rather by a sense of revenge and despair,” Mothana observed.
It is time to halt this dangerous and illegal practice.
Marjorie Cohn is a professor of law at Thomas Jefferson School of Law, past president of the National Lawyers Guild, and editor of The United States and Torture: Interrogation, Incarceration, and Abuse. Jeanne Mirer, also a contributor to that book, is an attorney in New York City and president of the International Association of Democratic Lawyers.
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