|
by Marjorie Cohn
April 28, 2015
from
GlobalResearch Website
|
Marjorie Cohn is a
professor at Thomas Jefferson School of Law, past
president of the National Lawyers Guild, and deputy
secretary general of the International Association of
Democratic Lawyers.
Her most recent
book is "Drones and Targeted Killing: Legal, Moral, and
Geopolitical Issues." |
Men look at wall
graffiti depicting a U.S. drone
along a street in
Sanaa, Yemen. November 9, 2013.
(Photo: Reuters)
President
Barack Obama stood behind the podium and apologized
for inadvertently killing two Western hostages - including one
American - during a drone strike in Pakistan.
Obama said,
"one of the things that sets America
apart from many other nations, one of the things that makes us
exceptional, is our willingness to confront squarely our
imperfections and to learn from our mistakes."
In his 2015 state of the union address,
Obama described America as "exceptional."
When he spoke to the United Nations
General Assembly in 2013, he said,
"Some may disagree, but I believe
that America is exceptional."
American exceptionalism reflects
the belief that Americans are somehow "better" than everyone
else.
This view reared its head after the 2013
leak of a Department of Justice White Paper that describes
circumstances under which the President can order the targeted
killing of U.S. citizens. There had been little public concern in
this country about drone strikes that killed people in other
countries. But when it was revealed that U.S. citizens could be
targeted, Americans were outraged.
This motivated Senator Rand Paul
to launch his 13-hour filibuster of John Brennan's nomination
for CIA director.
It is this double standard that moved Nobel Peace Prize winner
Archbishop Desmond Tutu to write a letter to the editor of
the New York Times, in which he asked,
"Do the United States and its people
really want to tell those of us who live in the rest of the
world that our lives are not of the same value as yours?"
(When I saw that letter, I immediately
invited Archbishop Tutu to write the foreword to my book, "Drones
and Targeted Killing: Legal, Moral, and Geopolitical Issues."
He graciously agreed and he elaborates on that sentiment in the
foreword).
Obama insists that the CIA and the U.S.
military are very careful to avoid civilian casualties.
In May 2013, he declared in a speech at
the National Defense University,
"before any strike is taken, there
must be near-certainty that no civilians will be killed or
injured - the highest standard we can set."
Nevertheless, of the nearly 3,852 people
killed by drone strikes, 476 have reportedly been civilians.
The Open Society Justice Initiative
(OSJI), which examined nine drone strikes in Yemen, concluded that
civilians were killed in every one.
Amrit Singh, a senior legal
officer at OSJI and primary author of the report, said,
"We've found evidence that President
Obama's standard is not being met on the ground."
In 2013, the administration released a
fact sheet with an additional requirement that "capture is not
feasible" before a targeted killing can be carried out. Yet the OSJI
also questioned whether this rule is being followed.
Suspected terrorist Mohanad Mahmoud
Al Farekh, a U.S. citizen, was on the Pentagon's "kill list" but
he was ultimately arrested by Pakistani security forces and will be
tried in a U.S. federal court.
"This is an example that capturing
can be done," according to Micah Zenko of the Council on Foreign
Relations.
The fact sheet also specifies that in
order to use lethal force, the target must pose a "continuing,
imminent threat to U.S. persons."
But the leaked Justice Department White
Paper says that a U.S. citizen can be killed even when there is no,
"clear evidence that a specific
attack on U.S. persons and interests will take place in the
immediate future."
This renders the imminency requirement a
nullity. Moreover, if there is such a low bar for targeting a
citizen, query whether there is any bar at all for killing
foreigners.
There must also be "near certainty" that the terrorist target is
present.
Yet the CIA did not even know who it was
slaying when the two hostages were killed. This was a "signature
strike," that targets "suspicious compounds" in areas controlled by
"militants."
Zenko says,
"most individuals killed are not on
a kill list, and the [U.S.] government does not know their
names."
So how can one determine with any
certainty that a target is present when the CIA is not even
targeting individuals?
Contrary to popular opinion, the use of drones does not result in
fewer civilian casualties than manned bombers. A study based on
classified military data, conducted by the Center for Naval Analyses
and the Center for Civilians in Conflict, concluded that the use of
drones in Afghanistan caused 10 times more civilian deaths than
manned fighter aircraft.
Moreover, a panel with experienced specialists from both the
George W. Bush and
Bill Clinton administrations
issued a 77-page report for the Stimson Center, a nonpartisan think
tank, which found there was no indication that drone strikes had
advanced "long-term U.S. security interests."
Nevertheless, the Obama administration maintains a double standard
for apologies to the families of drone victims.
"The White House is setting a
dangerous precedent - that if you are western and hit by
accident we'll say we are sorry," said Reprieve attorney Alka
Pradhan, "but we'll put up a stone wall of silence if you are a
Yemeni or Pakistani civilian who lost an innocent loved one.
Inconsistencies like this are seen around the world as
hypocritical, and do the United States' image real harm."
It is not just the U.S. image that is
suffering. Drone strikes create more enemies of the United States.
While Faisal Shahzad was pleading
guilty to trying to detonate a bomb in Times Square, he told the
judge,
"When the drones hit, they don't see
children."
Americans are justifiably outraged when
we hear about ISIS beheading western journalists.
Former CIA lawyer Vicki Divoll,
who now teaches at the U.S. Naval Academy, told the New Yorker's
Jane Mayer in 2009,
"People are a lot more comfortable
with a Predator [drone] strike that kills many people than with
a throat-slitting that kills one."
But Americans don't see the images of
the drone victims or hear the stories of their survivors. If we did,
we might be more sympathetic to the damage our drone bombs are
wreaking in our name.
Drone strikes are illegal when conducted off the battlefield. They
should be outlawed. Obama, like Bush before him, opportunistically
defines the whole world as a battlefield.
The guarantee of due process in the U.S. Constitution as well as in
the International Covenant on Civil and Political Rights must be
honored, not just in its breach. That means arrest and fair trial,
not summary execution.
What we really need is a complete
reassessment of Obama's continuation of Bush's "war
on terror."
Until we overhaul our foreign policy and
stop invading other countries, changing their regimes, occupying,
torturing and indefinitely detaining their people, and uncritically
supporting other countries that illegally occupy other peoples'
lands, we will never be safe from terrorism.
***
Introduction
Drones and Targeted Killing
- Legal, Moral, and
Geopolitical Issues -
by Marjorie Cohn
Source
Introduction
A Frightening New Way of War
In his 2009 acceptance speech for the Nobel "Peace" Prize, President
Barack Obama declared,
"Where force is necessary, we have a moral
and strategic interest in binding ourselves to certain rules of
conduct. And even as we confront a vicious adversary that abides by
no rules, I believe the United States of America must remain a
standard bearer in the conduct of war." 1
By the time Obama accepted
the award, one year into his presidency, he had ordered more drone
strikes than
George W. Bush had authorized during his two
presidential terms.
The Bush administration detained and tortured suspected terrorists.2
The Obama
administration has chosen to illegally assassinate them, often with
the use of drones. The continued indefinite detention of men at
Guantánamo belies Obama's pledge two days after his first
inauguration to close the prison camp there.
However, Obama has
added only one detainee to the Guantánamo roster.
"This government
has decided that instead of detaining members of al-Qaida [at
Guantánamo] they are going to kill them," according to John Bellinger, who formulated the Bush administration's drone policy.3
On "Terror Tuesdays," Obama and John Brennan, Obama's former
counterterrorism
adviser, now CIA director, go through the "kill list" to identify
which individuals should be assassinated that week.4
The Obama
administration has developed a creative method to count the civilian
casualties from these assassinations. All military-age men killed
in a drone strike zone are considered to be combatants,
"unless there
is explicit intelligence posthumously proving them innocent." 5
Brennan falsely claimed in
2011 that no civilians had been killed in drone strikes in nearly a
year.6
Obama orders two different types of drone attacks: personality
strikes that target "named, high-value terrorists," and signature
strikes that target training camps and "suspicious compounds in
areas controlled by militants."7
In the signature strikes, sometimes
called "crowd killings," the Obama administration often doesn't even
know who are they killing.
"But," write Jo Becker and Scott Shane
in the New York Times, "some State Department officials have
complained to the White House that the criteria used by the C.I.A.
for identifying a terrorist 'signature' were too lax.
The joke was
that when the C.I.A. sees 'three guys doing jumping jacks,' the
agency thinks it is a terrorist training camp, said one senior
official. Men loading a truck with fertilizer could be bombmakers - but
they might also be farmers, skeptics argued."8
Before taking the life of a person off the battlefield, the Due
Process Clause of the
U.S. Constitution 9 requires the government to arrest a suspect,
inform him of the charges against him, and provide him with a fair
trial.
But like his predecessor, Obama defines virtually the entire
world as a battlefield, ostensibly obviating the necessity to
provide due process before execution.
Moreover, in a 2012 speech,
Attorney General Eric Holder drew a curious distinction between
"due
process" and "judicial process":
"'Due process' and 'judicial
process' are not one and the same, particularly when it comes to
national security," he said. "The Constitution guarantees due
process, not judicial process."10
The Bush administration took the position that neither the criminal
law nor international humanitarian law - which comes from the Hague
and Geneva Conventions and governs the conduct of war - protected the
targets of the "War on Terror."11
They
existed in a legal "black hole."12
Obama has apparently adopted the
same position, although he has replaced the moniker "War on Terror"
with "War on Al Qaeda."
But "there is not a distinct entity called
Al Qaeda that provides a sound basis for defining and delimiting an
authorized use of military force," according to Paul Pillar, former
deputy director of the CIA's Counterterrorism Center.13
Both administrations have justified their targeted killing policies
with reference to
the Authorization for the Use of Military Force (AUMF), which
Congress passed a week after 9/11.
It authorizes the President:
[t]o use all necessary and appropriate force against those nations,
organizations, or
persons he determines planned, authorized, committed, or aided the
terrorist attacks that occurred on September 11, 2001, or harbored
such organizations or persons, in order to prevent any future acts
of international terrorism against the United States by such
nations, organizations or persons.14
This authorization is limited to groups and countries that supported
the 9/11
attacks.
Congress rejected the Bush administration's request for
openended military authority,
"to deter and preempt any future acts
of terrorism or aggression against the United States."15
But
deterrence and preemption are exactly what Obama is trying to
accomplish by sending robots to kill "suspected militants."
Obama has extended his battlefield beyond Iraq and Afghanistan to
Pakistan, Yemen,
Somalia and Libya, even though the United States is not at war with
those countries. U.S. drones fly from allied bases in Saudi Arabia,
Turkey, Italy, Qatar, the Philippines and the United Arab Emirates.
Expanding into West Africa, the United States has built a major
drone hub in Djibouti.16
Armed drones are operated by "pilots" located thousands of miles
from their targets. Before launching its payload, the drone hovers
above the area. It emits a buzzing sound that terrorizes
communities.
"The drones were terrifying," observed New York Times
journalist David Rhode, who was captured by the Taliban in
Afghanistan in 2008 and later escaped.
"From the ground, it is
impossible to determine who or what they are tracking as they circle
overhead. The buzz of a distant propeller is a constant reminder of
imminent death. Drones fire missiles that travel faster than the
speed of sound. A drone's victim never hears the missile that kills
him."17
After the drone drops a bomb on its target, a second strike often
bombs people
rescuing the wounded from the first strike.
And frequently, a third
strike targets mourners at funerals for those felled by the prior
strikes. This is called a "double tap," although it is more
accurately a "triple tap." U.S. drones have killed children,
rescuers, and funeral processions "on multiple occasions," according
to a report written by Micah Zenko for the Council on Foreign
Relations (CFR).18
Obama's administration has killed at least as many people in
targeted killings as
died on 9/11.
But of the estimated 3,000 people killed by drones,
"the vast majority were neither
al-Qaeda nor Taliban leaders," CFR
reported.
"Instead, most were lowlevel, anonymous suspected
militants who were predominantly engaged in insurgent or terrorist
operations against their governments, rather than in active
international terrorist plots."19
Although more than 95 percent of all non-battlefield targeted
killings have been carried out by drones, the killer robots are not
the only medium used to conduct targeted killings.
The United States
also employs Joint Special Operations Command (JSOC) to
conduct raids, as well as AC-130 gunships, and cruise missiles
launched offshore by air or sea.20
Drones are Obama's weapon of choice because, unlike piloted fighter
aircraft, they don't jeopardize the lives of U.S. pilots.
There are
claims that the use of drones results in fewer civilian casualties
than manned bombers.
However, a study based on classified military
data, conducted by Larry Lewis from the Center for Naval Analyses
and Sarah Holewinski of the Center for Civilians in Conflict, found
that the use of drones in Afghanistan has caused 10 times more
civilian deaths than manned fighter aircraft.21
"In the United States, the dominant narrative about the use of
drones in Pakistan is
of a surgically precise and effective tool that makes the US safer
by enabling 'targeted killing' of terrorists with minimal downsides
or collateral impacts.
This narrative is false," according to the
comprehensive report Living Under Drones issued by Stanford Law
School and NYU Law School.22
Many killed by drones are civilians,
or, as the administration says, "bug splat," referring to the "collateral damage" estimate methodology the U.S. military and the
CIA employ.23
Targeted killing with drones is counterproductive.
General Stanley McChrystal, architect of the U.S. counterinsurgency strategy in
Afghanistan, declared that drones are "hated on a visceral level"
and contribute to a "perception of American arrogance."24
Kurt
Volker, former U.S. ambassador to NATO, concurs.
"Drone strikes... do not solve our terrorist problem," he noted.
"In fact, drone use
may prolong it. Even though there is no immediate retaliation, in
the long run the contributions to radicalization through drone use
may put more American lives at risk."25
Mullah Zabara, a southern
tribal sheikh from Yemen, told Jeremy Scahill,
"The US sees al Qaeda
as terrorism, and we consider the drones
terrorism. The drones are flying day and night, frightening women
and children, disturbing sleeping people. This is terrorism."26
The CFR reported a "strong correlation" in Yemen between stepped up
targeted killings since December 2009 and,
"heightened anger toward
the United States and sympathy with or allegiance to AQAP [Al Qaeda
in the Arabian Peninsula]."27
Drone strikes breed increased resentment against the United States
and lead to the
recruitment of more terrorists.
"Drones have replaced Guantánamo as
the recruiting tool of choice for militants," according to Becker
and Shane.
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."28
Pakistani ambassador Zamir
Akram said 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."29
In May 2013, Chief
Justice Dost Muhammad Khan of the High Court of Peshawar in Pakistan
ruled that U.S. drone strikes in the region were illegal.30
The Bush administration's 2002 drone strike in Yemen that killed,
among others,
U.S. citizen Ahmed Hijazi, also known as Kamal Derwish, was the
first publicly confirmed
U.S. targeted killing outside a battlefield since President Gerald
Ford signed a ban on political assassinations in 1976.31
"It means
the rules of engagement have changed," a former CIA official with
knowledge about special operations told the Los Angeles Times after
the strike in Yemen.
"That would be the first time that they have
started doing this kind of thing."32
It wouldn't be the last.
Scahill writes,
"The secret war in Pakistan
became largely a drone bombing campaign, described by CIA officers
at the US Embassy in Islamabad as 'boys with toys'."33
By the end of
Obama's first year as president, he,
"and his new counterterrorism
team would begin building the infrastructure for a formalized US
assassination program,"34 Scahill added, with "an aggressive embrace
of assassination as a centerpiece of US national security policy."35
In December 2009, Admiral William McRaven, JSOC commander,
authorized JSOC to carry out a "series of targeted killings" in
Yemen.36
The United States uses two types of armed drones - the Predator,
that costs $4.5 million each, and the Reaper, valued at $15 million;
both are produced by General Atomics Aeronautical Systems of San
Diego.37
The Reaper houses up to four Hellfire missiles and two
500-pound bombs. It can fly to heights of 21,000 feet for up to 22
hours. Its cameras enable the "pilots" operating the drone 7,500
miles away to see the faces of their targets on the computer screen
"as the bomb hits."38
Tom Dispatch has identified 60 bases used in U.S. drone operations,
although there
could be more, as there is a "cloak of secrecy" surrounding our
drone warfare program.39
The drone industry doesn't like to refer to
their killer robots as "drones" because of the negative connotation
of these machines droning above communities. They prefer to call
them Unmanned Aerial Vehicles (UAV) or Unmanned Aerial Systems (UAS).
Targeted killing, which,
"is just the death penalty without due
process," Clive
Stafford Smith told the Guardian,40 is an example of American
exceptionalism, reflecting the view that people in the United States
are somehow superior to those in other countries.
In his 2013 speech
to the United Nations (UN) General Assembly, Obama stated,
"Some may
disagree, but I believe that America is exceptional - in part because
we have shown a
willingness, through the sacrifice of blood and treasure, to stand
up not only for our own narrow self-interest, but for the interests
of all."41
But in addition to the U.S. soldiers killed in Iraq and
Afghanistan, hundreds of thousands of people in those countries have
been killed and untold numbers wounded. And the four to six trillion
dollars we spent on those wars could have been put to much better
use in this country.
Time columnist Joe Klein, considered by many to be a liberal, bought
into American exceptionalism in a disturbing way in a 2012 interview by
Joe
Scarborough on MSNBC's Morning Joe.
Scarborough observed,
"You have
four-year-old girls being blown to bits because we have a policy
that says, 'You know what, instead of trying to go in, take the
risk, get the terrorists out of hiding... we're just going to
blow up everyone around them,'" and he mentioned "collateral
damage."
Klein retorted,
"The bottom line, in the end, is: Whose
four-year-old gets killed? What we're doing is limiting the
possibility that four-year-olds here are going to get killed by
indiscriminate acts of terror."42
So it's preferable that foreign
little girls get killed in order to protect American little girls?
American exceptionalism also reared its head after the February 2013
leak of a
Department of Justice (DoJ) White Paper that describes circumstances
under which the President could order the targeted killing of U.S.
citizens.43
There had been little public concern in the United
States about drone strikes killing people in other countries. But
when it was revealed that U.S. citizens might be targeted, Americas
were outraged. This was exemplified by Senator Rand Paul's 13-hour
filibuster of John Brennan's nomination for CIA director.
It is this double standard that motivated Nobel Peace Prize winner
Archbishop
Desmond Tutu to pen a compelling letter to the editor of the New
York Times, in which he
asked,
"Do the United States and its people really want to tell
those of us who live in the rest of the world that our lives are not
of the same value as yours?"44
The Archbishop elaborates on that
observation in the Foreword to this collection.
In May 2013, as international criticism targeted Obama's drone
policy and the continued indefinite detention at Guantánamo where
detainees were starving themselves to death and military guards were
violently force-feeding them, the President delivered a speech.45
He explained that,
"the United States is at war with al Qaeda, the
Taliban, and their associated forces," without defining who those "associated forces" are.
Although he defended his use of drones and
targeted killing, Obama proclaimed,
"America does not take strikes when
we have the ability to capture individual terrorists - our
preference is always to detain, interrogate and prosecute them."
Obama referred to the killing of Osama bin Laden as exceptional
because,
"capture, although our preference, was remote."
Yet it was
clear when the U.S. soldiers arrived at bin Laden's compound that
the people there were unarmed and bin Laden could have been
captured.
Obama admitted,
"The cost to our relationship with
Pakistan - and the backlash among the Pakistani public over
encroachment on their territory - was so severe that we are now just
beginning to rebuild this important partnership."
In view of
Pakistan's considerable arsenal of nuclear weapons, Obama took a
substantial risk to our national security in breaching Pakistan's
sovereignty by his assassination operation.
As Obama delivered his remarks, the White House issued a Fact Sheet
containing
policies and procedures for counterterrorism operations,46 but did
not release the full Presidential Policy Guidance.
The Fact Sheet
says,
"The policy of the United States is not to use lethal force
when it is feasible to capture a terrorist suspect."
It provides
that "lethal
force will be used outside areas of active hostilities" only when
certain preconditions are met.
But it does not define "areas of active
hostilities."
A target must pose a "continuing, imminent threat to U.S. persons."
The Fact Sheet does not define "continuing" or "imminent."
The
leaked DoJ White Paper says a U.S. citizen can be killed even when
there is no,
"clear evidence that a specific attack on U.S. persons
and interests will take place in the immediate future,"47 which
renders the imminence requirement a nullity.
There must be "near
certainty" that the terrorist target is present, that noncombatants
will not be injured or killed, and that capture is not "feasible"
(left undefined).
A showing must be made that governmental
authorities in the target country cannot or will not effectively
address the "threat to U.S. persons" (also left undefined), and no
reasonable alternatives exist. A "legal basis" is required for the
use of lethal force, but the Fact Sheet fails to define that legal
basis.
Whatever it may involve, it surely violates treaties ratified
by the United States, which are part of U.S. law by virtue of
Article VI of the Constitution. The UN Charter, a ratified treaty,
prohibits the use of military force except in self-defense or when
approved by the Security Council.48
But the Fact Sheet would excuse
these preconditions when the president takes action "in
extraordinary circumstances" which are "both lawful and necessary to
protect the United States or its allies."
There is no definition of "extraordinary
circumstances."
The month before Obama gave his speech, McClatchy reported that the
administration had been misrepresenting the types of groups and
individuals it was targeting with drones in Afghanistan and
Pakistan.
Citing classified U.S. intelligence reports, the McClatchy
piece said that contrary to the administration's claims that it had
deployed drones only against known senior leaders of al Qaida and
allied groups, it had in
fact targeted and killed hundreds of suspected low-level Afghan,
Pakistani and "other" militants in scores of strikes in Pakistan.49
At times,
"the CIA killed people who only were suspected, associated
with, or who probably belonged to militant groups."
Micah Zenko,
author of the CFR report cited earlier, said that McClatchy's
findings indicate the administration is,
"misleading the public about
the scope of who can legitimately be targeted."50
Obama's claim of vast executive power to kill anyone he wants with
no judicial
involvement is precisely what the founding fathers feared when they
wrote three co-equal branches of government into the Constitution
to check and balance each other.
It is only Congress that has the
power to declare war. Indeed, Georgetown University law professor
Rosa Brooks testified at a congressional hearing:
"[W]hen a
government claims for itself the unreviewable power to kill anyone,
anywhere on earth, at any time, based on secret criteria and secret
information discussed in a secret process by largely unnamed
individuals, it undermines the rule of law."51
Generals involved in the U.S. overseas drone program are being
tapped by the
Department of Homeland Security (DHS) to develop and direct our
domestic drone program.
This is emblematic of,
"the increasing merger
of the post-9/11 homeland security/border security complex with the
military-industrial complex," in the words of Tom Barry,52 a senior
policy analyst at the Center for International Policy.
The Pentagon is slated to spend $5.78 billion in 2013 for research
and procurement of drone systems, and DHS is spending millions of
dollars in contracts with drone manufacturers, including General
Atomics.
As Congress considers immigration reform, Senator John
McCain observed that the "Border Security Economic Opportunity, and
Immigration Modernization Act," which the Senate passed, would make
the U.S.-Mexico border the "most militarized border since the fall
of the Berlin Wall."53
This raises troubling issues regarding the
morality and wisdom of our national priorities.
Another disturbing issue is that the unlawful precedent the United
States is setting with its use of killer drones and other forms of
targeted killing 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.
In this interdisciplinary collection, human rights and political
activists, policy
analysts, lawyers and legal scholars, a philosopher, a journalist
and a sociologist examine different aspects of the U.S. policy of
targeted killing with drones and other methods.
These contributors
explore legality, morality and geopolitical considerations, and
evaluate the impact on relations between the United States and the
countries affected by targeted killings.
The book includes the documentation of,
-
civilian casualties by the
leading non-governmental organization in this area
-
stories of civilians
victimized by the drones
-
an analysis of the first U.S. targeted
killing lawsuit by the lawyer who brought the case, as well as a
discussion of the targeted killing cases in Israel by the director
of The Public Committee Against Torture (PCATI) which filed one of
the lawsuits
-
the domestic use of drones
-
the immorality of drones using
Just War principles
International legal scholar Richard Falk explains in Chapter Two why
weaponized drones pose a greater threat than nuclear weapons to
international law and world order.
He notes that nuclear weapons
have not been used since 1945 except for deterrence and
coercive diplomacy as the countries of the world have established
regimes of constraint on their use through arms control agreements
and nonproliferation. Drones, however, are unconstrained by any
system of regulation. They will likely remain unregulated as "the
logic of dirty wars" continues to drive U.S. national security
policy.
In Chapter Three, policy analyst Phyllis Bennis describes
assassination as central to
U.S. war strategy due to the militarization of our foreign policy.
She traces the program of assassination to the post-Vietnam era
"Salvador option," in which CIA and Special Forces developed
assassination teams and death squads to avoid American casualties.
Moving into the modern era, Bennis details how the war strategy
shifted from counter-insurgency, with large numbers of U.S. troops,
to counter-terrorism and targeted killing, using drones as the
preferred weapon.
Chapter Four is an article published by journalist Jane Mayer in The
New Yorker in 2009. This article was the first comprehensive exposé
about the Obama administration's escalation of drone use for
targeted killing. It is also one of the earliest efforts at
documenting civilian casualties from the use of drones.
Mayer raises
the legal, political, and tactical ramifications of drone warfare
and asks troubling questions about possible unintended consequences
of this new weapon.
In Chapter Five, sociology professor Tom Reifer examines America's
embrace of a
global assassination program using the Joint Special Operations
Command and the CIA, which he calls "a paramilitary arm of the
President."
He focuses on the effects of drone strikes on persons
and targeted communities, as well as the drone pilots themselves.
Political activist Medea Benjamin, in Chapter Six, humanizes the
victims of lethal
drone strikes, particularly in Pakistan and Yemen. She includes
personal stories about
some of the victims and their family members. Benjamin describes how
the drones, in addition to killing many innocent people, terrorize
entire populations and destroy the fabric of local communities.
Chapter Seven is a comprehensive report by Alice K. Ross, of the
Bureau of Investigative Journalism, documenting civilian casualties
of the drone strikes. She underlines the critical importance of
publishing contemporaneous information on all casualties, civilian
or militant, in a transparent, incident-by-incident manner - even
where the information might be limited due to ongoing hostilities.
Without such detail, Ross writes, it is impossible to effectively
challenge casualty claims by officials and for victims of drone
strikes to claim compensation.
The United States' targeted killing through the use of drones and
other methods
violates international and U.S. law, human rights attorney Jeanne
Mirer explains in Chapter Eight. Extrajudicial killing is not
illegal in the context of a legally declared war on a battlefield.
However, the United States wrongfully claims that
"self-defense"
gives it the right to execute anyone in any country, regardless of
citizenship and regardless of the existence of a legal war. Mirer
analyses how the United States is violating International Human
Rights Law and International Humanitarian Law.
In Chapter Nine, philosopher Harry van der Linden analyzes whether
targeted
killing by drones in non-battlefield zones can be justified on the
basis of just war theory, applying traditional jus ad bellum
(justice in resort to war) and jus in bello (justice in execution of
war) principles.
He asks if proliferation and expansion of combat
drones in war will be an obstacle to initiating or executing wars in
a just manner in the future, utilizing principles of "just military
preparedness" or jus ante bellum (justice before war), a
new category of just war thinking.
Van der Linden concludes that an
international ban on weaponizing drones is morally imperative and,
at a minimum, that an international treaty against autonomous lethal
weapons should be adopted.
In Chapter Ten, Center for Constitutional Rights attorney Pardiss
Kebriaei discusses the first legal challenge to the U.S.
targeted killing program in Al-Aulaqi v. Obama. That case involved the Obama
administration's authorization of the targeted killing of a U.S.
citizen in Yemen.
She cites the imperative for accountability,
including through judicial review, and discusses the obstacles
constructed by the Obama administration that have effectively
precluded judicial review thus far.
PCATI executive director Ishai Menuchin, in Chapter Eleven,
contrasts the discourse
in Israel about the elimination of terrorists and preemptive action
with the Palestinian discourse of,
"day-to-day acts of Israeli
state-terror and repression."
He wonders how extrajudicial
execution became official Israeli policy since Israel does not have
the death penalty.
Menuchin examines assassination petitions filed
in the Israeli High Court of Justice, including the "Targeted
Killing" case, PCATI v. Government of Israel, and he laments
Israel's lack of accountability.
Legal scholar John Quigley analyzes in Chapter Twelve the impact of
the policy of
using lethal pilotless aircraft on relations between the United
States and the countries in which the affected populations are
located, in the context of a history of resentment against
U.S. interventions and interference.
He suggests that the policy
redounds to the detriment of the United States by engendering
resentment and the use of violence against the United States and its
personnel. The chapter suggests that the Obama Administration is
aware of these risks but continues its policy in spite of them.
In Chapter Thirteen, ACLU attorney Jay Stanley discusses policy
issues surrounding the imminent arrival of domestic drones in U.S.
airspace. The main concern is privacy.
Stanley asks how the
technology is likely to evolve, and how the First Amendment "right
to photography" interacts with serious privacy issues implicated by
drones. The national discourse about drone deployment has opened up
a space for privacy activists and others to create a genuine public
discussion of the issue before it is widely deployed.
Finally, in Chapter Fourteen, political activist Tom Hayden places
the advent of the
Drone Age into a historical context of U.S. military invasions and
occupations.
He discusses political and strategic considerations
that animate the evolution of the military policies of President
Obama, who is,
"in grave danger of leaving a new Imperial Presidency
as his legacy."
Hayden advocates a transparent set of policies to
rein in the use of drones and cyber warfare, while protecting
democracy.
Drones and targeted killing will not solve the problem of terrorism.
"If you use the
drone and the selected killings, and do nothing else on the other
side, then you get rid of individuals. But the root causes are still
there," former Somali foreign minister, Ismail Mahmoud 'Buubaa' Hurre, told Scahill.
"The root causes are not security. The root
causes are political and economic."54
A Pentagon study conducted during the Bush administration55
concluded,
"Muslims
do not 'hate our freedom,' but rather, they hate our policies."
It
identified,
"American direct intervention in the Muslim world,"
through the U.S.'s "one sided support in favor of Israel," support
for Islamic tyrannical regimes in Egypt and Saudi Arabia, and,
primarily, "the American occupation of Iraq and Afghanistan."
These
policies, which are rationalized to stop terrorism,
"paradoxically elevate the stature
of and support for Islamic radicals."
Becker and Shane sounded an alarm about the ramifications of drone
strikes on the future of U.S. relations with Muslim countries.
They
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."56
We ignore this admonition at our peril. Until
we stop invading countries with Muslim populations, occupying their
lands, torturing their people, and killing them with drones, we will
never be safe from terrorism.
It is my hope that this volume will provide information that can be
marshalled to
halt the illegal, immoral, unwise U.S. policy of assassination.
References
1 Barack Obama, President, United
States, Remarks by the President at the Acceptance of the Nobel
Peace Prize (Dec. 10, 2009), available at www.whitehouse.gov/the-press-office/remarks-president-acceptance-nobel-peace-
prize.
2 See generally, THE UNITED STATES AND TORTURE: INTERROGATION,
INCARCERATION, AND ABUSE (Marjorie Cohn, ed., NYU Press 2011).
3 Dan Roberts, US drone strikes being used as alternative to
Guantanamo, lawyer says, GUARDIAN (May 2, 2013),
www.theguardian.com/world/2013/may/02/us- drone-strikes-guantanamo.
4 Jo Becker & Scott Shane, Secret 'Kill List'Proves a Test of
Obama's Principles and Will, N. Y.TIMES (May 29, 2012),
www.nytimes.eom/2012/05/29/world/obamas-
leadership-in-war-on-al-qaeda.html?pagewanted=all.
5 Id.
6 Jack Serle & Chris Woods, Secret US documents show Brennan's
'no civilian drone deaths' claim was false, BUREAU OF
INVESTIGATIVE JOURNALISM (Apr. 11, 2013),
www.thebureauinvestigates.com/blog/2013/04/ll/secret-us-documents-show-
brennans-no-civilian-drone-deaths-claim-was-false/.
7 Becker & Shane, supra note 4.
8 Id.
9 U.S. CONST, amend. V.
10 See Eric Holder, Attorney General, U.S. Dep't of Just.,
Speech at Northwestern Univ. School of Law (Mar. 5, 2012),
available at
www.justice.gov/iso/opa/ag/speeches/2012/ag-speech-1203051.html.
11 "War on Terror" is a misnomer as terrorism is a tactic, not
an enemy. A country cannot declare war on a tactic.
12 See Leila Nadya Sadat, America's Drone Wars, 45 Case W. Res.
J. Int'l L. 215, 221 (2012).
13 Paul R. Pillar, The Limitless Global War, THE NATIONAL
INTEREST (June 19, 2012), nationalinterest.org/blog/paul-pillar/the-limitless-global-war-7094.
14 Authorization for Use of Military Force, 115 Stat 2 24 (2001)
(emphasis added).
15 Bruce Ackerman, President Obama: Don't go there, WASH. POST
(Apr. 20, 2012), articles.washingtonpost.com/2012-04-20/opinions/35452574_l_terrorist-group-
terrorist-attacks-terrorist-threat.
16 Craig Whitlock, Drone base in Niger gives U.S. a strategic
foothold in West Africa, WASH. POST (Mar. 21, 2013),
articles.washingtonpost.com/2013-03-
21/world/37905284_l_drone-bases-unarmed-predator-drones-surveillance-
drones.
17 David Rhode, The Drone War, REUTERS (Jan. 26, 2012),
www.reuters.com/article/2012/01/26/us-davos-reutersmagazine-dronewar-
idUSTRE80P19R2 0120126.
18 Micah Zenko, Reforming U.S. Drone Strike Policies, Council
Special Report No. 65, COUNCIL on FOREIGN RELATIONS CENTER 14
(Jan. 2013), i.cfr.org/content/publications/attachments/Drones_CSR65.pdf.
19 Zenko, supra note 18, at 10.
20 Id. at 8.
21 Spencer Ackerman, US drone strikes more deadly to Afghan
civilians than manned aircraft - adviser, GUARDIAN (July 2,
2013),
www.theguardian.com/world/2013/jul/02/us-drone-strikes-afghan-civilians.
22 Stanford Law Sch.& New York Univ. Sch. of Law, Living Under
Drones: Death Injury, and Trauma to Civilians from US Drone
Practices in Pakistan v (2012), available at
www.livmgunderdrones.org/wp-content/uploads/2012/10/Stanford-
NYU-LIVING-UNDER-DRONES.pdf.
23 Zenko, supra note 18, at 12.
24 Robert F. Worth, Mark Mazzetti & Scott Shane, Drone Strikes'
Risks to Get Rare Moment in the Public Eye, N. Y. TIMES (Feb. 5,
2013),
www.nytimes.com/2013/02/06/world/middleeast/with-brennan-pick-a-light-on-drone-strikes-hazards.html?pagewanted=all.
25 Kurt Volker, What the U.S. risks by relying on drones, WASH.
POST (Oct. 26, 2012), www.washingtonpost.com/opinions/we-need-a-rule-book-for-drones/2012/10/2
6/957312ae-lf8d-lle2-9cd5-b55c38388962_story.html.
26 See JEREMY SCAHILL, DIRTY WARS 465-466 (Nation Books 2013).
27 Zenko, supra note 18, at 11.
28 Becker & Shane, supra note 4.
29 Common Dreams staff, Common Dreams, UN Investigator Blasts US
Drone Program June 19, 2012), www.commondreams.org/headline/2012/06/19-0.
30 Daniel Mullen, Pakistan court declares US drone strikes
illegal, JURIST (May 9, 2013), jurist.org/paperchase/2013/05/pakistan-court-declares-drone-strikes-illegal-directs-foreign-ministry-to-introduce-resolution-in-un.php.
31 Scahill, supra note 26, at 75-77.
32 Greg Miller & Josh Meyer, CIA Missile in Yemen Kills 6 Terror
Suspects, Los ANGELES TIMES (NOV. 5, 2002), artides.latimes.eom/2002/nov/05/world/fg-yemen05/2.
33 Scahill, supra note 26 at 177.
34 Id. at 253.
35 Id. at 353.
36 Id. at 303.
37 See NICK TURSE &TOM ENGELHARDT, TERMINATOR PLANET: THE FIRST
HISTORY OF DRONE WARFARE 2001-2050 9 (2012).
38 Id. at 10, 74.
39 Id. at 72.
40 Mehdi Hasan, Iran's nuclear scientists are not being
assassinated. They are being murdered, Guardian (Jan. 16, 2102),
www.theguardian.com/commentisfree/2012/jan/16 /iran-scientists-state-
sponsored-murder.
41 Barack Obama, President, United States, Obama's Speech at the
U.N. (Sept. 24, 2013), available at www.nytimes.com/2013/09/25/us/politics/text-of-obamas-
speech-at-the-un.html?pagewanted=all&_r=0.
42 Peter Hart, Morning Joe's Drone Debate: Whose Four-Year-Old
Girls Should be Killed?, FAIR (Oct. 23, 2012), www.fair.org/blog/2012/10/23/morning-joes-drone-
debate-whose-four-year-old-girls-should-be-killed/.
43 Lawfulness of a Lethal Operation Directed Against a U.S.
Citizen Who Is a Senior Operational Leader of Al-Qa'ida or An
Associated Force, at 8-9 (Nov. 8, 2011), available at http://en.wikipedia.org/wiki/020413_DOJ_White_Paper
44 Desmond M. Tutu, Drones, Kill Lists and Machiavelli, N. Y.
TIMES (Feb. 12, 2013), www.nytimes.com/2013/02/13/opinion/drones-kill-lists-and-
machiavelli.html?_r=0.
45 Barack Obama, President, United States, Remarks by the
President at the National Defense University (May 23, 2013),
available at www.whitehouse.gov/the-press-
office/2013/05/23/remarks-president-national-defense-university.
46 Office of the Press Secretary, Fact Sheet: U.S. Policy
Standards and Procedures for the Use of Force in
Counterterrorism Operations Outside the United States and Areas
of Active Hostilities, WHITE HOUSE (May 23, 2013),
www.whitehouse.gov/the-press-
office/2013/05/23/fact-sheet-us-policy-standards-and-procedures-use-force-
counterterrorism; see Appendix B.
47 See White Paper, supra note 43.
48 See Mirer chapter 8,
49 By Jonathan S. Landay, Obama's drone war kills 'others'
notjustal Qaida leaders, MCCLATCHY (Apr.9,2013),
www.mcdatchydc.com/2013/04/09/188062/obamas-drone-war-kills-others.html
50 Id.
51 The Constitutional and Counterterrorism Implications of
Targeted Killing: Hearing Before the Senate Judiciary Subcomm.
on the Constitution, Civil Rights, and Human Rights of the S.
Comm, on the Judiciary, 113th Cong. 19-20 (Apr. 23, 2013),
www.judiciary.senate.gov/pdf/04-23-13 BrooksTestimony.pdf.
52 Tom Barry, Homeland Security Taps Generals to Run Domestic
Drone Program: The Rise of Predators at Home, TRUTHOUT (Aug. 7,
2013), www.truth-out.org/news/item/17995-homeland-security-taps-generals-to-run-domestic-drone-program-the-rise-of-predators-at-home.
53 Id.
54 Scahill, supra note 26, at 494.
55Glenn Greenwald. A Rumsfeld-era reminder about what causes
Terrorism. SALON (Oct. 20, 2009), www.salon.com/2009/10/20/terrorism_6/.
56 Becker & Shane, supra note 4.
|
