Legality of US drones questioned

[David Guyatt]

I wonder if someone from the Times dropped in for a read Jan:

http://www.timesonline.co.uk/tol/comment...074776.ece

From The Times
March 25, 2010

Barack Obama must justify covert killing. Or halt it

It’s not just Israel that is eliminating its enemies. The US is pursuing a programme of state-backed assassination

Ben Macintyre

David Miliband was diplomatically livid. “Such misuse of British passports is intolerable”. Israel had broken every rule, he said, by cloning British documents that were used by some of the hit-team sent to kill the Hamas leader Mahmoud al-Mabhouh in a Dubai hotel room. In retaliation for forging Her Britannic Majesty’s signature, the senior Mossad officer in London is heading home — presumably on his own passport.

Mr Miliband is firmly opposed to state-sponsored identity theft. He did not, however, offer an opinion in his Commons statement on whether it is acceptable to break into a hotel room in a sovereign foreign country, inject its occupant with muscle relaxant and smother him with a pillow.

A few months earlier, a notorious Taleban terrorist named Baitullah Mehsud was sitting on the roof of his father-in-law’s farmhouse in Pakistan. He was spotted by an unmanned Predator drone operated from CIA headquarters thousands of miles away in Langley, Virginia, and was blown to pieces by two precisely aimed Hellfire missiles. Twelve others also died.

Both al-Mabhouh and Mehsud were exceptionally nasty pieces of work. Mehsud was linked to a host of terrorist attacks, including the murder of Benazir Bhutto. Al-Mabhouh was involved in the abduction and murder of two Israeli soldiers.

State-backed assassination — the extrajudicial killing of an enemy outside a war zone — has long been regarded as illegal and immoral. Yet that principle is now being undermined as governments increasingly turn to the bomb and bullet rather than the law to destroy their adversaries.

In 1976 President Ford issued an executive order banning political assassinations. When Mossad launched Operation Wrath of God, tracking down and killing the Palestinian terrorists responsible for the Munich Olympics massacre in Lebanon, France and Norway, the US was sharply critical.

In July 2001, the US Ambassador to Israel declared: “The United States Government is very clearly on record as against targeted assassination ... They are extrajudicial killings, and we do not support that.”

After 9/11, George W. Bush was granted broad executive powers to combat terrorism around the world, and under Barack Obama the programme of killing using drones has accelerated sharply. Unmanned planes are used routinely to pick out specific enemies, not just in the wild Pakistani borderlands but in Yemen, Somalia and elsewhere.

President Obama has ordered more drone strikes on terrorist targets in his first year in office than President Bush did in two terms. Of the 99 drone attacks carried out in Pakistan since 2004, 89 occurred after January 2008; last year there were a record 50 drone strikes, up from 31 the year before.

America’s preferred euphemism is “targeted killing”; on the ground the procedure is called “find, fix and finish”. The Obama Administration prefers the term “elimination” to “assassination”, yet that is what is taking place.

The CIA’s targeted killings may be justified on legal, ethical and practical grounds: if a gun it pointed at your head, violent self-defence is a reasonable response. The problem is that the Obama Administration has not sought to justify, or even properly acknowledge, its tactics, just as Israel has neither admitted nor defended the al-Mabhouh hit.

Drone strikes take place amid the strictest secrecy. The Obama Administration has made no direct comment on them, nor divulged the criteria by which individuals are selected. The CIA reportedly keeps a constantly updated list of shoot-to-kill targets “deemed to be a continuing threat to US persons or interests”.

But how a person gets on that list — or off it — is unclear. Are terrorists and insurgents singled out for what they have done in the past, or what they might do in the future? The latter may be a defensible rationale for assassination, the former is not. Is the risk of collateral damage factored in? How secure is identification before the trigger is pulled? As Milt Bearden, a former CIA officer, recently observed: “There is precious little intelligence reliable enough to be the basis for a death sentence.”

The legal basis for drone strikes is also murky. Assassination may be justifiable in time of war, but the CIA is a civilian organisation, and the US is not at war with Pakistan, Yemen or Somalia. Winston Churchill was acutely aware of the dangers inherent in political assassination. Presented with an opportunity to attempt to kill off Hitler in 1942, he declined. The assassination of Reinhard Heydrich, the Nazi ruler of Czechoslovakia, had unleashed horrendous reprisals. Killing Hitler would ensure his martyrdom, galvanise Nazi passion and allow Himmler, arguably an even more appalling prospect, to take over.

Mr Obama has plainly decided that “targeted killing” is a legitimate and effective tool of war. He must now justify that to the world and provide an official accounting of how, when and why life-and-death decisions are taken.

Britain was rightly outraged when Alexander Litvinenko was murdered on British soil, but official anger over the murder in Dubai has been largely restricted to complaints about the misuse of passports. In this country, the killing in Dubai has been treated as if were some colourful John le Carré story. The CIA programme of targeted killing without accountability is merely seen as just an extension of the Afghan war. Both are unacceptable.

Hard intelligence of an imminent terrorist attack is the only possible justification for extrajudicial execution. Consorting with terrorists, or a terrorist history, are not enough. Perhaps Israel had evidence that al-Mabhouh was planning more attacks, but this has not been revealed. Perhaps the CIA had concrete proof that every one of the 50 individuals hit by missiles from unmanned drones last year was on the verge of terrorist action. If so, the intelligence remains under wraps.

Killing people without due process is seldom justifiable; but it is never acceptable if carried out in secret.

Mr Obama must explain and publicly justify targeted killings. Failure to do so will merely compound the impression of an intelligence agency wielding lethal powers in secret, a group of state-backed hitmen prepared to carry out covert assassinations — like Mossad — because they can.