Legality of US drones questioned

[David Guyatt]

http://blogs.aljazeera.net/americas/2010...questioned

Legality of US drones questioned

By John Terrett in
Americas
on March 24th, 2010


Photo by AP
Missiles fired from US drones killed at least six people on Tuesday in a Pakistani tribal area bordering Afghanistan, according to security officials.

It's the latest in a wave of attacks that have been used to target alleged enemy combatants but which frequently kill innocent civilians.

The latest strike came as a congressional committee in Washington DC heard evidence that legal issues surrounding the use of unmanned aerial vehicles (UAVs) or drones have not been fully worked out.

A lone protester was told by the chairman: "You're going to have an opportunity to sit down or be asked to leave - it's your choice."

She sat down but soon left the room, allowing the door to slam behind her.

The committee went on to hear that while the US has more than 7,000 UAVs and more on order, there is still no legal framework for the operation of this new technology.

It's widely suspected the CIA operates a fleet of drones in Pakistan and Afghanistan which they use for targeting Taliban and al-Qaeda leaders.

There have been multiple civilian deaths as a result of the use of such drones and the committee heard there are concerns inside and outside the US government that drone attacks violate human rights standards and may constitute extra judicial execution.

Professor Kenneth Anderson from the Washington College of Law at American University told the hearing:

The long-term effect of that, given that there are not necessarily statutes of limitations, could be the problem of CIA officers or for that matter military officers or their lawyers, being called up in front of international tribunals or courts in Spain or some place that say you've engaged in extra judicial execution or simple murder and we're going to investigate and indict.
The problem, says Professor Anderson, is that administration lawyers haven't justified publically the use of drones, because the administration itself is reluctant to admit drone attacks in places like Pakistan and Afghanistan.

Although nobody in the world doubts what's going on in Pakistan, it's kind of hard for the lawyer to step up and say 'by the way what we're doing is legal and here's why' and give a whole series of reasons and say, 'by the way, we're not admitting that we're actually doing any of this stuff'. It's very hard for the lawyer to get out in front of the client when the client itself has not actually formally stood up and said 'this is what we're doing'.
He says what makes it more difficult is that though the CIA has taken on drone attacks on the Afghan/Pakistan border, it's not doing it as a genuinely covert operation but as an operation that is denied by the administration.

Tuesday's gathering was the opening session of congress's investigation into the use of UAVs.

There will be other meetings like this on Capitol Hill and at them the debate into the use of such drones is likely to continue.

[Jan Klimkowski]

Professor Kenneth Anderson from the Washington College of Law at American University told the hearing:

The long-term effect of that, given that there are not necessarily statutes of limitations, could be the problem of CIA officers or for that matter military officers or their lawyers, being called up in front of international tribunals or courts in Spain or some place that say you've engaged in extra judicial execution or simple murder and we're going to investigate and indict.
The problem, says Professor Anderson, is that administration lawyers haven't justified publically the use of drones, because the administration itself is reluctant to admit drone attacks in places like Pakistan and Afghanistan.

Although nobody in the world doubts what's going on in Pakistan, it's kind of hard for the lawyer to step up and say 'by the way what we're doing is legal and here's why' and give a whole series of reasons and say, 'by the way, we're not admitting that we're actually doing any of this stuff'. It's very hard for the lawyer to get out in front of the client when the client itself has not actually formally stood up and said 'this is what we're doing'..

He says what makes it more difficult is that though the CIA has taken on drone attacks on the Afghan/Pakistan border, it's not doing it as a genuinely covert operation but as an operation that is denied by the administration

How predictable that the professor of law would totally miss the point.

I'd like to hear his legal justifications for the remote slaughter of men, women and children by drone. I suspect they'd be akin to John Yoo's neo-fascist nonsense...

[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.

[Ed Jewett]

Drone Attacks Are Legit Self-Defense, Says State Dept. Lawyer

• By Nathan Hodge
  
• March 26, 2010 |
  
• 12:57 pm |
  
• Categories: Af/Pak
  

America’s undeclared drone war has been controversial, for any number of reasons: Pakistani politicians have cried foul over “counterproductive” strikes. Critics worry they may create more popular support for militants. And civil liberties groups have asked whether, in effect, it amounts to a program of targeted killing.
Now the State Department’s top legal adviser has offered a rationale for the ongoing campaign: Legitimate self-defense.
In a keynote address last night to the American Society of International Law, State Department legal adviser Harold Koh said it was “the considered view of this administration” that drone operations, including lethal attacks, “comply with all applicable law, including the laws of war.”
Al Qaeda and its allies, he continued, have not abandoned plans to attack the United States. “Thus, in this ongoing armed conflict, the United States has the authority under international law, and the responsibility to its citizens, to use force, including lethal force, to defend itself, including by targeting persons such as high-level al Qaeda leaders who are planning attacks,” he said.
It’s worth giving a closer look at the speech, excerpted here by ASIL. But this is not likely to appease critics of the drone war. Most recently, the American Civil Liberties Union filed a Freedom of Information Act lawsuit against the Defense Department, the State Department and the Justice Department, demanding that the government provide more details about the legal basis of the drone war, including details about who authorizes drone strikes, how the targets are cleared and the rate of civilian casualties.
Koh addressed several of the concerns raised by rights groups:

Some have suggested that the very use of targeting a particular leader of an enemy force in an armed conflict must violate the laws of war. But individuals who are part of such an armed group are belligerent and, therefore, lawful targets under international law…. Some have challenged the very use of advanced weapons systems, such as unmanned aerial vehicles, for lethal operations. But the rules that govern targeting do not turn on the type of weapon system involved, and there is no prohibition under the laws of war on the use of technologically advanced weapons systems in armed conflict — such as pilotless aircraft or so-called smart bombs — so long as they are employed in conformity with applicable laws of war…. Some have argued that the use of lethal force against specific individuals fails to provide adequate process and thus constitutes unlawful extrajudicial killing. But a state that is engaged in armed conflict or in legitimate self-defense is not required to provide targets with legal process before the state may use lethal force.

Obviously, this doesn’t end the controversy, but the administration has made it quite clear it sees no legal reason to scale back the escalating drone war.
Photo: U.S. Department of Defense

Tags: air strikes, Drones, Perils of Pakistan, Politricks, Strategery


Read More http://www.wired.com/dangerroom/2010/03/...z0jXGflZMY

[Magda Hassan]

Well, the legality of US drone warfare may be in question but the morality of it is not.
I am always reminded, when I see these legal fig leaves for this gross inhumanity, of apartheid South Africa and Nazi Germany. It was all perfectly legal what they did. But it was inhuman and an abomination. :evil::mad:

[Ed Jewett]

Yes, this State Department stuff ranks right up there with past remonstrations. The new info tzar must be hard at work. Torture was purportedly legal, and the POTUS can crush a child's testicles if he wants, and now also has the same latitude to feed the world muscle relaxants and then cover its face with a pillow.

Youth in Asia.

And Michelle wants the over-eating poor kids to go on a diet so they'll meet the enlistment standards... (great article at GlobalResearch on poverty as the cause of obesity).

[Peter Lemkin]

If we do it, it's 'legal' and 'right' - get it?!ecruity: If other's do it, it is questionable.....:five: Simple!:flute:

[Jan Klimkowski]

Koh addressed several of the concerns raised by rights groups:
Some have suggested that the very use of targeting a particular leader of an enemy force in an armed conflict must violate the laws of war. But individuals who are part of such an armed group are belligerent and, therefore, lawful targets under international law…. Some have challenged the very use of advanced weapons systems, such as unmanned aerial vehicles, for lethal operations. But the rules that govern targeting do not turn on the type of weapon system involved, and there is no prohibition under the laws of war on the use of technologically advanced weapons systems in armed conflict — such as pilotless aircraft or so-called smart bombs — so long as they are employed in conformity with applicable laws of war…. Some have argued that the use of lethal force against specific individuals fails to provide adequate process and thus constitutes unlawful extrajudicial killing. But a state that is engaged in armed conflict or in legitimate self-defense is not required to provide targets with legal process before the state may use lethal force.

"Specific individuals"?

State Dept lawyer Koh - like the White House's similarly monosyllabic and equally amoral Yoo - is ignoring the fact that a great number of these "specific targets" appear to be both innocent, and women and children.

[Peter Lemkin]

"Specific individuals"?
is ignoring the fact that a great number of these "specific targets" appear to be both innocent, and women and children.

Well, either legit targets or collateral damage - that accounts for all the humans.......picky, picky, picky......