Tuesday, April 13, 2010

A Critique of the U.S. drone program.

There are not that many extended critiques of the drone program but here is one from Lebanon by two lawyers. They do not seem to be aware that just recently there has been a short defense of the program by one of Obama's legal beagles (Koh) and it is precisely along the lines that this article shows does not hold water. This is from the DailyStar(Lebanon)


The ongoing American Predator attacks are illegal and immoral
By Ali Ezzatyar and Shahpur Kabraji


There was a news item recently of the kind we’ve heard dozens of times during the past few years: A US Predator drone had killed eight militants in a hideout in North Waziristan, but the identities of the militants weren’t known. Since Barack Obama became president of the United States, stories like this one have only become more frequent.

Unmanned and invisible, the Predator drones floating over Afghanistan and Pakistan (and elsewhere) have been described by the CIA director, Leon Panetta, as the “only game in town.” Armed with Hellfire missiles, with their connotation of divine retribution, Predator attacks (and the associated death toll) have risen dramatically the past three years. And many, maybe even most, of those killed are innocent civilians.

To much of the world, the treatment of Guantanamo detainees and American policies on torture are the standards by which Obama’s willingness to break from President George W. Bush’s legacy are being measured. The Obama administration’s decision to continue – and increase – the use of Predator drones generally isn’t considered. But it should be.

There are two major, unresolved legal problems with these strikes. In some cases they violate the sovereignty of independent countries. And in all cases, they result in assassinations that have no apparent legal basis, clearly violating the human rights of their victims. Illegal, immoral and strategically flawed, the strikes do significant damage to America’s image across the globe and its ability to address terrorism at its root, societal level.

Due to a long-standing US executive order banning assassinations, the US government has done its best to dance around that description, all the while refusing to make available for examination the intelligence that prompts lethal attacks on suspected terrorists. But without the presentation of evidence or the opportunity of trial for the targeted, we should call these attacks what they are: extrajudicial assassinations.

The US government has not distinguished the use of Predator drones from the general context of fighting “combatants” in an armed conflict. The reality is that the targeted individuals do not fit, legally or logically, in the category of combatants in a sustained conflict. Drones do not seek assassination of individuals engaged in active combat; those it kills are generally far removed from the war zone and disconnected from any chain of command – so the context of armed conflict does not apply.

The only potential basis for killing militants outside of the war zone is the customary law of self-defense. In other words where there is an imminent threat of future attack. Killing a terrorist mastermind who planned a prior attack would not qualify as self-defense. So far, eyewitness and investigative accounts suggest there is no evidence to support that those assassinated were involved in planning imminent attacks, even if the term “imminent” were to be interpreted liberally. To be clear, the US government has never tried to justify its use of Predator drones on a legal basis. The fact that the CIA, a civilian agency, and not the military is the party pulling the trigger in many of these cases also complicates matters.

These assassinations are shortcuts with a cavalier disregard for legality. If the intelligence does not ultimately establish that these individuals are legal targets, as it appears it does not, responsible officials would be committing war crimes. What does that mean for the America?

The killings themselves, when taking place on foreign soil that is not occupied by the US, are also part of another layer of legal complexity involving sovereignty. These strikes by the CIA against individuals in sovereign countries represent the use of force by one nation state against the civilians of another – a use of force proscribed by the United Nations Charter. One rebuttal advanced by the United States is that the national government concerned has consented to such action. However, for example in the case of Pakistan, the national government regularly denies giving such consent. Drone attacks in countries not occupied by the US and with which the US is not at war are violations of the sovereignty of these nations and are illegal according to the international treaties the US has ratified.

The use of drones to carry out missile strikes against individuals in another country, if carried out by Iran, North Korea or Yemen would cause international outrage. The fact that these attacks are carried out by the CIA does not change the rule of law to which the United States and all other signatories to the UN Charter are subject.



The strikes also allow extreme but nevertheless popular elements of civil society in the target country to argue that their supine government has once again abrogated all responsibility in the face of American pressure. This lends further credence to sentiments in certain portions of that country’s local media, as we see in Pakistan, that American actions are a war on Muslims, on the tribal way of life, and on Pakistan’s culture and traditions under the guise of a war on terrorism. This becomes all the more convincing when the remoteness and clinical nature of the attacks harms civilians.

We know that elements of the civilian population in Pakistan and Afghanistan are harboring militants. It is equally undeniable that this civilian population is unlikely to feel any sympathy whatsoever for the political aims of Washington when the only face of those aims they see is the business end of a Hellfire missile. These populations must be convinced that by harboring terrorists within their community they undermine their own chances for peace and prosperity. The numbers of innocents killed by terrorists should demonstrate this without question, but when hundreds are also killed as “collateral damage,” it is not surprising that the message is lost. Kill one innocent farmer, create a village of anti-Americans.

However, the most important problem relating to these assassinations is not a legal one at all. It is one that is morally significant for America as a nation and that will continue to pose practical problems for its ongoing struggle against terrorism in the Muslim world. Individuals are being sentenced to death from on high by non-judicial bodies with no inherent authority to carry out such acts. This perpetuates the image that America is an insincere hegemon that devalues the lives of people in the region.

The war against Islamic extremists is framed, by both sides to the conflict, as a war of the free against the oppressive, and the fair against the unfair. The US claims a moral high ground over terrorists who employ the murder of innocents as a means to an end. It is no surprise that in societies in which suspected terrorists reside, there is no sympathy for the argument that the US can kill as it deems fit while its opponents cannot. Either the US believes in universal human rights, even for terrorists, or it does not.

Drone strikes are sending a signal to the world that the US believes itself to be subject to a different standard in its ability to determine right from wrong. In addition to being antithetical to the notion of fairness, it is precisely the opposite message that the US has an interest in sending. At the moment, very few outside of the United States, including in Europe, are buying it. In the broader Middle East, if people are asked to choose between Americans and fellow Muslims as to who has more of a right to carry out arbitrary attacks, the US will doubtless lose what remaining support it still enjoys. Why then should we be surprised, or outraged, when terrorists use unconventional and murderous techniques to advance their causes?

Was there any real doubt about whether or not the Nazi leaders and generals tried at Nuremberg were guilty? Would anyone have kicked up a fuss if those who stood trial were instead summarily executed, as was considered at the time? The more important question is, what was the legacy, for Germany and the world, of those trials? Terrorism may be a faceless enemy, but its perpetrators live in societies caught in a war of ideas.

Given the confluence of morality and practicality in this debate, how does one explain the relative lack of attention and outcry in the US with respect to the extrajudicial assassinations? It would appear that the absence of contact with the suspected terrorists has begotten an out of sight, out of mind approach to the act.

Uproar about the treatment and trial of suspects at Guantanamo Bay marred Bush’s presidency and became a huge talking point of the Obama presidency. Similarly, the use of certain techniques, like water-boarding which were akin to torture, was suspended by the new US president due to widespread protest. It must also follow that the policy of assassinating individuals is an unacceptable policy for a US government that purports to be, both domestically and abroad, a trendsetter when it comes to justice.



Ali Ezzatyar is an American lawyer practicing in Paris, as well as a writer and consultant on geopolitical issues, mostly relating to the Middle East. Shahpur Kabraji, the first Pakistani president of the Cambridge Union, is a lawyer based in London, and a part-time journalist. They wrote this commentary for THE DAILY STAR.



Read more: http://www.dailystar.com.lb/article.asp?edition_id=1&categ_id=5&article_id=113666#ixzz0l1UKbK6m
(The Daily Star :: Lebanon News :: http://www.dailystar.com.lb)

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