Ignoring serious legal questions over drone strikes, DoJ probes leaks instead

Journalism is printing what someone else does not want printed: everything else is public relations. ― George Orwell

The U.S. Justice Department has just launched two official probes in relation to recent revelations that President Obama has authorized clandestine cyberattacks against Iran and personally oversees a secretive “kill list” that targets suspected terrorists – including U.S. citizens – for assassination.

But rather than focusing on possible violations of the law related to the programs themselves, the Justice Department is investigating who might have provided this sensitive information to the press.

Responding to Republican complaints that the Obama administration has intentionally leaked details about the programs in order to bolster Barack Obama’s “national security credentials” in an election year, Attorney General Eric Holder has assigned Ronald Machen, the U.S. attorney for the District of Columbia, and Rod Rosenstein, the U.S. attorney for the District of Maryland, to direct separate investigations that are being conducted by the FBI regarding the leaks.

“The unauthorized disclosure of classified information can compromise the security of this country and all Americans, and it will not be tolerated,” Holder said, adding that he was confident the prosecutors would follow the facts and evidence wherever they led.

President Obama weighed in on the controversy by stating that his administration has “zero tolerance” for such leaks and that there would also be an internal administration probe.

“We have mechanisms in place where if we can root out folks who have leaked, they will suffer consequences,” the president said. “In some cases, it’s criminal. These are criminal acts when they release information like this. And we will conduct thorough investigations, as we have in the past.”

Republicans, however, are not satisfied with the promised investigations, and are demanding the appointment of a special counsel, arguing that using White House-appointed attorneys could prevent a thorough investigation.

Sen. John McCain, R-Ariz., on Tuesday introduced a Senate resolution calling for a special counsel to investigate the alleged leaks.

“I can’t think of any time that I have seen such breaches of ongoing national security programs as has been the case here,” McCain said. “Here we are with a very serious breach of national security – in the view of some, the most serious in recent history, and it clearly cries out for the appointment of a special counsel.”

With criticism of the actual subject of the leaks — the questionable assassination program being directed from the White House — paling in comparison to the outrage over the release of these state secrets, it is difficult to imagine a more pointed example of the state of official lawlessness that has come to characterize U.S. foreign and domestic policy.

Much like the prosecutions of accused whistleblowers Bradley Manning and John Kiriakou – who have allegedly provided journalists details on a host of official crimes committed by the U.S. government, including secret bombings, spying on international diplomats and torture – the probes into the recent Obama administration leaks demonstrate once again that in the United States, it is only a prosecutable offense to expose official crimes, not to actually commit them.

In the case of the drone program exposé, the New York Times on May 29 revealed many sordid details of secretive meetings in the White House – dubbed “Terror Tuesdays” by the administration – in which President Obama personally authorized the assassinations of “suspected militants” far from any battlefield in countries such as Yemen and Pakistan.

In one of the more distressing stories described by the Times, Obama ordered the killing of a group of “Qaeda suspects in Yemen with Western ties.” The victims included several Americans, “including a girl who looked even younger than her 17 years.”

The article also provided new insight into the decision-making process that led to the assassination of U.S. citizen Anwar al-Awlaki, who allegedly provided the inspiration for the killing of 13 people at Fort Hood, Tex. by Maj. Nidal Malik Hasan in 2009.

The motives for the Fort Hood shootings were widely reported at the time of the crime, including by the Times, which on Nov. 5, 2009, described a tormented soldier “who began having second thoughts about a military career a few years ago after other soldiers harassed him for being a Muslim.”

Hasan had “counseled scores of returning soldiers with post-traumatic stress disorder, first at Walter Reed Army Medical Center in Washington and more recently at Fort Hood” and “knew all too well the terrifying realities of war,” the Times reported in 2009. He was terrified of being deployed to Iraq or Afghanistan and apparently snapped, killing 13 fellow soldiers in the process.

Ultimately, however, culpability for the Fort Hood shootings fell not on a culture of despair in an Army plagued by long deployments in the never-ending “war on terror,” but on the “fiery sermons” of al-Awlaki, who was also blamed for providing the inspiration to the attempted Christmas Day 2009 bombing of an airliner over Detroit.

“Awlaki’s calls for more attacks,” reported the Times in its May 29 article, “presented Mr. Obama with an urgent question: Could he order the targeted killing of an American citizen, in a country with which the United States was not at war, in secret and without the benefit of a trial?”

“This is an easy one,” Obama reportedly said during the meeting. He gave his approval to the assassination based on an Office of Legal Counsel memorandum which argued that constitutional protections of “due process” were satisfied by the secret deliberations taking place in the White House.

Awlaki was killed in September 2011 along with Samir Khan, another U.S. citizen who was not on the target list but was traveling with him. Two weeks later, another drone attack killed Awlaki’s son, 16-year-old Abdulrahman al-Awlaki, a U.S. citizen born in Denver, along with his 17-year-old cousin and seven others.

The Times also revealed that in Pakistan, Obama has approved not only “personality” strikes aimed at identified, high-value terrorists, but “signature” strikes that target suspicious compounds in areas allegedly controlled by militants.

“Signature strikes in Pakistan were killing a large number of terrorist suspects, even when C.I.A. analysts were not certain beforehand of their presence,” reported the Times.

Now, with newly defined rules authorized by the president, the Defense Department can target suspects whose names they do not know, the Times reports. The drone attacks have been given a new name: TADS, for Terrorist Attack Disruption Strikes.

“But the details are a closely guarded secret — part of a pattern for a president who came into office promising transparency,” notes the Times.

In addition to broadening the rules of engagement to include “signature” strikes on individuals whose identities are unknown, Obama has also redefined concepts “civilians” and “militants” in order to minimize unfavorable news about innocent victims of the drone strikes. The semantic change was apparently made in response to early blunders in the drone assassination program.

In early 2009, just days after taking office, the president was notified that the first strike under his administration had killed a number of innocent Pakistanis.

The Pakistan strike killed between seven and 12 people, reported initially as “foreign militants.” In a later report personally given to Obama by his then-CIA chief General Hayden, the CIA admitted missing its high-value target and killing “five al Qaeda militants,” but made no mention of civilian deaths. However, Newsweek reported in May 2012 that the President was told that civilians had died almost immediately.

The New York Times article sheds light on Obama’s response to this incident, which was essentially to change the way that civilian deaths were counted (or not counted) in relation to the drone strikes.

“Obama embraced a disputed method for counting civilian casualties that did little to box him in,” reported the Times. “It in effect counts all military-age males in a strike zone as combatants, according to several administration officials, unless there is explicit intelligence posthumously proving them innocent.”

A U.S. official explained the macabre logic to the Times: “Al Qaeda is an insular, paranoid organization — innocent neighbors don’t hitchhike rides in the back of trucks headed for the border with guns and bombs.”

So, according to this logic, which is now official U.S. policy, anyone near a designated target of a U.S. drone strike is a “legitimate” target simply by virtue of being there, regardless of actual guilt or innocence of any particular offense against the United States. In other words, by definition, anyone killed by the United States government is considered a “militant,” unless “explicit intelligence” is produced after their deaths “proving them innocent.”

This controversial method of counting civilian casualties “may partly explain the official claims of extraordinarily low collateral deaths,” notes the Times.

The C.I.A. accounting has so troubled some administration officials outside the agency that they have brought their concerns to the White House. One called it “guilt by association” that has led to “deceptive” estimates of civilian casualties.

“It bothers me when they say there were seven guys, so they must all be militants,” the official said. “They count the corpses and they’re not really sure who they are.”

Following the New York Times report, Gabor Rona, international legal director at Human Rights First and former legal adviser at the International Committee of the Red Cross, expressed astonishment over the radical legal principles being advanced by the Obama administration.

“We have never before heard anything quite like the idea that if you have to be in a certain place and you happen to be of a certain age, that in and of itself can make you targetable,” Rona said.

Human Rights First asked Obama to clarify two points of international law: First, that his administration does not permit the targeting of all members of a terrorist group with which the U.S. claims to be at war; and, second, that it does not permit the targeting of individuals merely because they are seen to be associating with members of a terrorist group.

The legal issues – both on the domestic and international levels – related to these recent revelations are obviously substantial, but to Attorney General Eric Holder, appear to be quite simple.

In a speech at Northwestern University School of Law on March 5, Holder offered a legal defense of the drone assassination program, arguing that although the decisions for who is targeted are made entirely in secret, they nevertheless follows the Constitution’s due process requirements.

“Some have argued that the President is required to get permission from a federal court before taking action against a United States citizen who is a senior operational leader of al Qaeda or associated forces,” Holder said.  “This is simply not accurate. ‘Due process’ and ‘judicial process’ are not one and the same, particularly when it comes to national security. The Constitution guarantees due process, not judicial process.”

While acknowledging that “it is preferable to capture suspected terrorists where feasible,” Holder claimed “that there are instances where our government has the clear authority – and, I would argue, the responsibility – to defend the United States through the appropriate and lawful use of lethal force.”

“This principle has long been established under both U.S. and international law,” he said. Citing the president’s wartime powers purportedly authorized by Congress in 2001, he elaborated on the corresponding authority that supposedly exists on the international level:

Because the United States is in an armed conflict, we are authorized to take action against enemy belligerents under international law. The Constitution empowers the President to protect the nation from any imminent threat of violent attack. And international law recognizes the inherent right of national self-defense. None of this is changed by the fact that we are not in a conventional war.

This claim, however, ignores longstanding complaints from the international community over the United States’ prosecution of the war on terror in general, and the drone assassination program in particular.

2010 United Nations report stated that a targeted killing outside of an actual battlefield “is almost never likely to be legal.” It rejected “pre-emptive self-defense” as a justification for killing terrorism suspects far from combat zones.

“This expansive and open-ended interpretation of the right to self-defense goes a long way towards destroying the prohibition on the use of armed force contained in the U.N. Charter,” said Philip Alston, the UN’s Special Rapporteur on extrajudicial, summary or arbitrary executions, in June 2010. “If invoked by other states, in pursuit of those they deem to be terrorists and to have attacked them, it would cause chaos.”

More recently, UN High Commissioner for Human Rights Navi Pillay has called for a UN investigation into U.S. drone strikes in Pakistan, questioning their legality and saying they kill innocent civilians.

Pillay made the remarks last Thursday at the end of a four-day visit to Pakistan, where U.S. drone strikes have on average targeted Islamist militants once every four days since Obama took office.

“Drone attacks do raise serious questions about compliance with international law,” Pillay told a news conference in Islamabad.

“The principle of distinction and proportionality and ensuring accountability for any failure to comply with international law is also difficult when drone attacks are conducted outside the military chain of command and beyond effective and transparent mechanisms of civilian or military control,” she said.

She added that the attacks qualify as “indiscriminate killings” and are “human rights violations.”

Global public opinion appears to be on Pillay’s side, with majorities in 17 out of 20 countries surveyed by the Pew Research Center disapproving of U.S. drone attacks in nations such as Pakistan, Yemen and Somalia. In a report released today, Pew notes that “there remains a widespread perception that the U.S. acts unilaterally and does not consider the interests of other countries.”

In nearly all countries, there is considerable opposition to drone strikes. The United States is the clear outlier in global public opinion, with a 62 percent majority approving of the drone assassination campaign.

The attacks appear to remain popular among Americans of all political persuasions, with 74 percent of Republicans, 60 percent of independents and 58 percent of Democrats approving of the program. This is despite the fact that they are not only isolating the U.S. from global opinion, but also pushing relations between Pakistan and the United States to an all-time low, with the Pakistani government complaining that they violate Pakistan’s sovereignty.

The Pakistani Foreign Ministry last week reiterated that “Pakistan strongly condemns these attacks.”

A statement on its website stated,

Pakistan has consistently maintained that these illegal attacks are a violation of its sovereignty and territorial integrity, and are in contravention of international law. It is our considered view that the strategic disadvantages of such attacks far outweigh their tactical advantages, and are therefore, totally counterproductive.

The U.S., for its part, has issued strong condemnations of Pakistan for failing to do enough to rein in militant activity near the Afghan border. Defense Secretary Leon Panetta alluded last week that Pakistan is to blame for continued instability in Afghanistan, essentially claiming that it is Pakistan’s fault that the U.S. cannot leave Afghanistan.

“It is difficult to achieve peace in Afghanistan as long as there is safe haven for terrorists in Pakistan,” Panetta said on a visit to the Afghan capital, Kabul.

“It is very important for Pakistan to take steps. It is an increasing concern, the issue of safe haven, and we are reaching the limits of our patience,” Reuters quoted him as saying.

As the Guardian reports,

The explicit and repeated criticism of Pakistan, after similar complaints during a visit to India, could signal US willingness to up the tempo of the drone strikes. A recent increase in strikes on insurgents in Pakistan was due in part to frustration with Islamabad, the Associated Press said, citing an unnamed senior US official.

So, as the Justice Department launches its investigation into who in the Obama administration may have provided details about this secretive program to the press, the Defense Department appears poised to launch intensified drone attacks on Pakistan – despite the vociferous protests from the Pakistani government and UN officials such as Navi Pillay.

And as the criminal investigations of White House leaks get underway, the much more serious questions of program’s legality remain unaddressed. Such is the sorry state of the rule of law in the USA.

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