U.S. House subcommittee has hearings on legality of drone attacks.

Not a very impressive article. The arguments against drone use are not advanced at any length. The defense is a joke. As is inevitably the case the argument starts out with the inevitable move of framing their use as part of a war. No one questions that according to the article. No doubt there is a war on drugs, a war on crime, and a war on poverty. Lets use drones on the same premise in those areas. The are some assumptions that are just not to be examined since the whole house of cards would fall down. This is from CNN so it is not too surprising the reporting is so bland and uncritical.

House subcommittee hearing questions legality of drone attacks

By the CNN Wire Staff

NEW: ACLU calls drone attacks part of illegal program for U.S. to target, kill terror suspects
Since President Obama took office, number of drone attacks has risen
U.S. law professors debate legality of such attacks during a House subcommittee hearing
Biggest controversy: legality of strikes conducted by CIA, as opposed to U.S. military

Washington (CNN) -- Congress delved Wednesday into the politically explosive issue of unmanned drone attacks, questioning the legality of operations increasingly used to combat al Qaeda and Taliban militants in countries such as Pakistan.

In the eight years of George W. Bush's presidency, unmanned aircraft -- or drones -- attacked militant targets 45 times.

Since President Obama took office, the numbers have risen sharply: 51 last year and 29 so far this year.

Most attacks have targeted suspected militant hideouts in Pakistan. While the United States is the only country in the region known to have the ability to launch missiles from drones -- which are controlled remotely -- U.S. officials normally do not comment on suspected drone strikes.

Based on a CNN count, all of the 29 drone strikes this year have hit locations in North Waziristan and South Waziristan, along the 1,500-mile porous border that Pakistan shares with Afghanistan.

Several top U.S. law professors debated the legality of the attacks in a hearing before the House Subcommittee on National Security and Foreign Affairs, the second such hearing held by the subcommittee within the past two months.

"The United States is committed to following international legal standards," said Rep. John Tierney, D-Massachusetts, the subcommittee's chairman. "Our interpretation of how these standards apply to the use of unmanned weapons systems will set an example for other nations to follow."

The four legal scholars invited to testify, however, offered sharply contrasting views of what constitutes an acceptable legal standard. The biggest controversy appeared to surround the legality of strikes conducted by CIA operatives, as opposed to strikes by the U.S. military.

"Only a combatant -- a lawful combatant -- may carry out the use of killing with combat drones," said Mary Ellen O'Connell, a professor from the University of Notre Dame law school.

"The CIA and civilian contractors have no right to do so. They do not wear uniforms, and they are not in the chain of command. And most importantly, they are not trained in the law of armed conflict."

O'Connell also said that "we know from empirical data ... that the use of major military force in counterterrorism operations has been counterproductive." The U.S. government, she said, should use force only "when we can accomplish more good than harm, and that is not the case with the use of drones in places like Pakistan, Yemen and Somalia."

David Glazier, a professor from Loyola law school in Los Angeles, California, defended the drone attacks on the grounds that there is "no dispute that we are in an armed conflict with al Qaeda and with the Taliban." That fact "allows the United States to call upon the full scope of authority which is provided by the law of war."

Glazier said there is "nothing within the law of war that prohibits the use of drones. In fact, the ability of the drones to engage in a higher level of precision and to discriminate more carefully between military and civilian targets than has existed in the past actually suggests that they're preferable to many older weapons."

He conceded, however, that there are legitimate concerns about the CIA's use of drones. CIA personnel are "clearly not lawful combatants, [and] if you are not a privileged combatant, you simply don't have immunity from domestic law for participating in hostilities."

Glazier warned that "any CIA personnel who participate in this armed conflict run the risk of being prosecuted under the national laws of the places where [the combat actions] take place." CIA personnel, he said, could be guilty of war crimes.

William Banks, the founding director of Syracuse University's Institute for National Security and Counterterrorism, said the U.S. government has engaged in targeted killings of individual combatants dating at least back to a 1916 border war with Mexican bandits.

Banks said the authors of the 1947 National Security Act, which traditionally gives the CIA much of its legal authority, probably didn't contemplate the targeted killings tied to drone attacks. But the statute, he said, was "designed as dynamic authority to be shaped by practice and by necessity."

"The intelligence laws permit the president broad discretion to utilize the nation's intelligence agencies to carry out national security operations, implicitly including targeted killing," he said. U.S. laws "supply adequate -- albeit not well-articulated or understood -- legal authority for these drone strikes."

The American Civil Liberties Union sent a public letter to Obama on Wednesday that said the drone attacks are part of an illegal program authorized by the administration allowing suspected terrorists -- including Americans -- to be targeted and killed by U.S. operatives.

"The program you have reportedly endorsed is not simply illegal but also unwise, because how our country responds to the threat of terrorism will in large measure determine the rules that govern every nation's conduct in similar contexts," ACLU Executive Director Anthony Romero said.

"If the United States claims the authority to use lethal force against suspected enemies of the U.S. anywhere in the world -- using unmanned drones or other means -- then other countries will regard that conduct as justified. The prospect of foreign governments hunting and killing their enemies within our borders or those of our allies is abhorrent."

Peter Bergen, a fellow at the New America Foundation, a nonpartisan group, suggested that the increase in drone attacks during the Obama administration is, in part, revenge for the bombing of a CIA base in eastern Afghanistan that killed seven Americans on December 30, 2009.

"The people who died in this suicide attack were involved in targeting people on the other side of the border," he said earlier this year.

Long War Journal, an online publication that charts data for U.S. airstrikes against al Qaeda and the Taliban in Pakistan, says the air campaign "remains the cornerstone of the effort to root out and decapitate the senior leadership of al Qaeda, the Taliban, and other allied terror groups, and to disrupt both al Qaeda's global and local operations in Afghanistan and Pakistan."

Such attacks, which have taken a civilian toll in many cases, have frequently caused tension between Pakistan and the United States.

CNN's Alan Silverleib contributed to this report.





Find this article at:

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)

Philip Alston replies to Koh's defense of drone attacks

I find much of this quite irrelevant. Alston does not even begin to question the whole framework of the discussion. The war on terror is framed as one of armed conflict where the laws of war are to be applied. This allows one not to have any judicial process before you target and kill opponents. But the war on terror is hardly a war except in the sense that the war on crime or drugs is a war. So lets use drones against drug operatives and murderers instead of all the trouble of apprehending them and putting them on trial. Even well established legal thinkers go along with this bit of imaginative concept extension that serves political ends. Surely this type of hocus pocus should be criticized and called out more frequently. Following Koh''s robust rules for targeting terrorists we could have similar rules for drug dealers. A dealer on a rooftop with his wife or mistress can be targeted and with at most one child. If there is more than one kid present it is a no go. This is proportionate use of force no doubt. This is from Democracynow.

Philip Alston, United Nations’ Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions. He’s also a professor of law at New York University and co-chair of the law school’s Center for Human Rights and Global Justice.

RUSH TRANSCRIPT
This transcript is available free of charge. However, donations help us provide closed captioning for the deaf and hard of hearing on our TV broadcast. Thank you for your generous contribution.
Donate - $25, $50, $100, More...
JUAN GONZALEZ: As the number of civilian casualties from the use of missiles fired from unmanned drones in Pakistan continues to rise, news reports indicate the Pentagon is considering dispatching drones to Somalia for a military offensive against suspected al-Qaeda-linked insurgents.
Well, last week the Obama administration publicly defended the legality of drone attacks for the first time. In a speech to the American Society of International Law, State Department legal adviser Harold Koh said the use of drones in the fight against al-Qaeda was both legal and necessary.
HAROLD KOH: With respect to the subject of targeting, which has been much commented on in the media and international legal circles, obviously there are limits to what I can say publicly. What I can say is that it is the considered view of this administration, and it has certainly been my experience during my time is legal adviser, that US targeting practices, including lethal operations conducted with the use of unmanned aerial vehicles, UAVs, comply with all applicable law, including the 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 or legal process before the state may use lethal force. Our procedures and practices for identifying lawful targets are extremely robust, and advanced technologies have helped to make our targeting even more precise.


AMY GOODMAN: Harold Koh’s defense of the use of drones comes six months after Philip Alston, the United Nations’ Special Rapporteur on Extrajudicial, Summary and Arbitrary Executions, said that the strikes, quote, “might violate international humanitarian law and international human rights law.”
Well, we’re joined here in New York by the UN Special Rapporteur, Philip Alston. He’s also a professor of law at New York University and co-chair of the law school’s Center for Human Rights and Global Justice.
Welcome to Democracy Now! What about what Harold Koh, well known as the head of the Yale Law School Center for Human Rights, now in the State Department, said?
PHILIP ALSTON: Well, I think it’s very good that Harold Koh addressed the issue. We’ve been asking for a legal rationale for quite a long time, so that’s a good start. The real problem is that Harold Koh’s statement was essentially arguing that “You’ve got to trust us. I’ve looked at this very carefully. I’m very sensitive to these issues. And all is well.” He didn’t actually answer. In fact, it was a remarkably, I would say, evasive statement by Harold Koh. He, himself, said this is not the time for legal opinion. Of course, my view is that it is the time for legal opinion, rather than for a public relations statement.
So the big issues that he didn’t answer are, first of all, what law are you applying? And he very casually said, well, we are applying either the law of armed conflict or the rules governing the right to self-defense of a state. Now, those two sets of rules are radically different. He didn’t address the issue of whether he is talking about the application of human rights law, as well as international humanitarian law. That’s an issue which the United States, under the Bush administration, contested very strongly, said this has nothing to do with human rights. That’s a real issue, and Harold Koh didn’t take it up.
Then there’s the question of the role of the Central Intelligence Agency. The CIA, as is now very clearly known, is essentially responsible for the operation of the drone program in Pakistan. It is not at all clear what rules govern the CIA. Harold Koh didn’t mention the CIA. He talked about “us” or “we” or whatever, the administration, but in the past there have been very different rules applied by the Department of Defense, on the one hand, and the CIA, on the other. So all of these concerns remain very much on the table.
JUAN GONZALEZ: And as the use of drones has increased, obviously, not just in Pakistan—there have been some drone attacks in Yemen, and now there’s talk about Somalia, as well—the issue of the civilian casualties and who takes responsibility for these killings, when you’re attempting to go after particular, quote, “insurgents.” The issue of the civilian casualties. How is that adjudicated, or in any way the United States held responsible for that?
PHILIP ALSTON: Right. Well, there’s two aspects of that. First of all, as you say, the use of drones is starting to expand. Obviously it’s expanded dramatically just in Pakistan. But this is also a very valuable weapon. The United States is going to start using it in a range of different locations. It’s extremely important then that the policy that is now being developed, where we have in mind a very particular set of circumstances in Pakistan, will actually be acceptable and viable in relation to a number of other situations where we are increasingly going to see these weapons used.
Even more important, of course, is to think ahead. The policy that the United States is now laying out for itself will be a very nice policy for China or Russia or other countries to take up and say, “Great, as the US said some time ago, this is the basis, and we are going to strike terrorists and others wherever necessary.” That’s really problematic.
Second aspect that you raise is the question of civilian casualties. Harold Koh, in the clip that you just showed, talked about the fact that they are not required to give legal process to such individuals. Now, that’s true, but what does “legal process” mean? It conjures up, in our mind, domestic legal process. In other words, we don’t have to take these guys to court. We don’t have to go through such a careful legal analysis. But we are still bound by international law. In other words, when we decide to target these individuals, the international law of armed conflict applies. That limits the question of who can be targeted, the circumstances, what they call “the principle of distinction.” It brings in the second principle of proportionality—in other words, how many other people can you kill while at the same time trying to get that target.
Now, so far, the United States has failed to provide any evidence that it is systematically reviewing the efficacy of its practices in that regard. Instead, what we got from Harold Koh last week was “Trust me. I’m a good guy. These things aren’t happening.” Well, I don’t think we can ask for full transparency. I don’t think the United States is ever going to provide access to all of the information relating to these killings. But until it starts to provide at least some access, we will not be able to conclude that the United States is in fact complying with the law, as Harold Koh insisted.
AMY GOODMAN: Robert Mackey points out over at the New York Times that Harold Koh wrote in 2004 about America’s disregard for international law after the September 11th attacks that earned it a place along with North Korea and Iraq in the “axis of disobedience.” He also told a Senate hearing that the Bush administration had imposed, quote, “unnecessary, self-inflicted wounds, which have gravely diminished our global standing and damaged our reputation for respecting the rule of law.” And, of course, Harold Koh is being talked about as a possible Supreme Court justice now.
PHILIP ALSTON: Well, I think it’s important to recognize what Harold Koh said, and that is that the standing of the United States, in terms of its respect for international law, was extremely low when the new administration came into office. So the question is, what do you do then to reestablish that standing? You get Harold Koh, a man for whom I have immense respect, a man of great principle and so on, but for him to come out and simply say, “Listen, I’ve looked at it. Trust me,” is not going to persuade the people of Pakistan, it’s not going to persuade those who we are trying to influence, and it’s certainly not going to persuade those for whom we’re trying to establish law that they might use in the future.
So I think it’s really essential for Harold, himself, to see that there needs to be more disclosure. We need to know more details about the legal analysis that he’s apparently done. We need to be able to discuss that. And we need to start getting some real information on how these programs of targeted killings are actually being implemented, what exactly the rules are, what sort of follow-up they do, for example.
We don’t know that in Pakistan. There’s immense opportunities, through the drones themselves, to follow up very carefully and to see what sort of damage, excess damage, collateral damage, was done. We have no indication that that is being done systematically. And it does contrast dramatically with what happens in Afghanistan, where the Department of Defense is involved. You’ve got General McChrystal and others going—really bending over more than backwards, if that’s possible, to say we are taking every precaution, we are doing all we can to limit. We don’t have those sort of assurances in relation to what’s going on in Pakistan.
JUAN GONZALEZ: And does it become more difficult in places like Pakistan, or even in Yemen, where the government, the sovereign power in the territory where these drones are being targeted, essentially turns its back or doesn’t acknowledge that these are even occurring to its own population, so it’s very difficult to actually get the information?
PHILIP ALSTON: I don’t think it necessarily makes it harder for the United States, in fact, because everyone knows the US is operating there. Everyone knows that Pakistan, for example, is equivocating, on the one hand, saying, “Well, yeah, OK, we’ll look the other way,” on the other hand saying, “We’re not very happy with this.” It doesn’t matter. The US is clearly in there. It’s operating. It could provide information.
But I think you raise another issue which is important, and that is the question of the sovereignty of the states concerned. In other words, is it Harold Koh’s position that we can only do this in Pakistan because we have the agreement of the Pakistani government? If you have a government which says, “No, we don’t want you coming in,” will the United States still fire these missiles? And Harold lists that as one consideration which will be taken into account. But he doesn’t say that we need to respect the sovereignty of states and leaves open very much the possibility that missiles could then be fired in relation to almost any state, if we conclude that they are not giving us the full cooperation we would want.
AMY GOODMAN: Well, I want to thank you very much for being with us, Philip Alston, UN Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, also a law professor here at New York University.

Related stories