U.S. government sued over mass surveillance, freedom of information and drone assassinations

The United States government is finding itself on the defensive this month, being taken to court over a host of policies that violate constitutional and international law.

First, on March 10, the American Civil Liberties Union, the Wikimedia Foundation, Human Rights Watch, Amnesty International USA and other groups filed a lawsuit against the U.S. National Security Agency challenging one of its mass surveillance programs that the plaintiffs say violates Americans’ privacy and makes individuals worldwide less likely to share sensitive information.

In particular, the lawsuit focuses on the NSA’s “upstream” surveillance, which involves the NSA’s tapping into the physical infrastructure of the internet, compromising Americans’ online communications with each other and with the rest of the world.

As explained by the ACLU:

In the course of its surveillance, the NSA copies and combs through vast amounts of Internet traffic, which it intercepts inside the United States with the help of major telecommunications companies. It searches that traffic for keywords called “selectors” that are associated with its targets. The surveillance involves the NSA’s warrantless review of the emails and Internet activities of millions of ordinary Americans.

“This kind of dragnet surveillance constitutes a massive invasion of privacy, and it undermines the freedoms of expression and inquiry as well,” said ACLU Staff Attorney Patrick Toomey. “Ordinary Americans shouldn’t have to worry that the government is looking over their shoulders when they use the Internet.”

The lawsuit argues that the NSA is infringing on the plaintiffs’ First Amendment rights and violating their privacy rights under the Fourth Amendment. The complaint also argues that the surveillance oversteps the authority granted by Congress under the FISA Amendments Act.

In explaining why her group joined the lawsuit, Human Rights Watch General Counsel Dinah Pokempner described the significant damage done by the NSA’s surveillance to the work of defending human rights around the world:

When Human Rights Watch can’t assure the privacy of the people with whom we work to expose and halt human rights abuses, we can’t protect their security either. Lives are in the balance, not to mention freedom of information, association, and speech.

Activists in Ethiopia, defense attorneys in France, and officials working in Indonesia won’t call or email us sensitive information about ongoing rights violations because they rightly fear surveillance. We have to get the facts face-to-face or not at all, and either way, that’s costly. People know the domestic government may well have an intelligence partnership with the US, and any leak of US-monitored communications may result in arbitrary arrest, prosecution, assault, or worse.

Last year, we documented the pall that surveillance has thrown over journalists and lawyers in the US, who now must go to extreme lengths to protect their confidential communications, or just forgo the reporting and defense strategies that keep our society informed, fair, and accountable.

HRW and the other groups in the lawsuit said that upstream surveillance “reduces the likelihood” that clients, journalists, foreign government officials, victims of human rights abuses and other individuals will share sensitive information with them.

Lila Tretikov, executive director of the Wikimedia Foundation, and Wikipedia founder Jimmy Wales wrote in the New York Times that they were concerned about where data on their users ends up after it is collected by the NSA. Noting close intelligence ties between the United States and Egypt, they said a user in Egypt would have reason to fear reprisal if she edited a page about the country’s political opposition.

The day after the lawsuit was filed challenging the NSA’s mass surveillance, the Associated Press sued the State Department to force the release of email correspondence and government documents from Hillary Clinton’s tenure as secretary of state. The legal action was a response to Clinton’s attempts to circumvent transparency laws by using a private email account while she headed the State Department and followed repeated requests filed under the U.S. Freedom of Information Act that have gone unfulfilled, according to the AP.

As the news agency explained in a March 11 article,

The FOIA requests and the suit seek materials related to her public and private calendars; correspondence involving aides likely to play important roles in her expected campaign for president; and Clinton-related emails about the Osama bin Laden raid and National Security Agency surveillance practices.

“After careful deliberation and exhausting our other options, The Associated Press is taking the necessary legal steps to gain access to these important documents, which will shed light on actions by the State Department and former Secretary Clinton, a presumptive 2016 presidential candidate, during some of the most significant issues of our time,” said Karen Kaiser, AP’s general counsel.

The suit filed by the AP came a day after Clinton broke her silence about her use of a private email account while she was America’s top diplomat. In defending her actions – which were widely seen as a crude attempt to avoid government transparency requirements – the likely 2016 Democratic presidential candidate claimed that her decision to forgo the official State Department email system was simply a matter of personal convenience.

“At the time, this didn’t seem like an issue,” Clinton said in a March 11 press conference. Clinton insisted she was not violating any rules or seeking to hide her communications.

“I fully complied by every rule I was governed by,” she claimed.

The senior-most executive branch official in charge of freedom-of-information matters for over a quarter-century flatly disagreed. Daniel Metcalfe, whose job it was to help four administrations interpret the Freedom of Information Act, offer advice, and testify before Congress on their behalf, called Clinton’s explanation laughable.

“What she did was contrary to both the letter and the spirit of the law,” said Metcalfe. “There is no doubt that the scheme she established was a blatant circumvention of the Freedom of Information Act, atop the Federal Records Act.”

Said AP Executive Editor Kathleen Carroll: “The Freedom of Information Act exists to give citizens a clear view of what government officials are doing on their behalf. When that view is denied, the next resort is the courts.”

Another challenge to the U.S. government playing out in the courts is a lawsuit filed this week against the lawless and secretive CIA drone assassination program being carried out by the Obama administration. The ACLU sued the White House in federal court on March 16 in an attempt to compel the release of classified information regarding the program of extrajudicial assassinations.

The lawsuit seeks in particular disclosure of the criteria for placing individuals on the administration’s “kill list.”

“The public should know who the government is killing and why it’s killing them,” said ACLU Deputy Legal Director Jameel Jaffer quite reasonably. “There’s no good reason why legal memos relating to the targeted-killing program should be secret in their entirety. Nor is there any legitimate justification for the government’s refusal to acknowledge individual strikes or to disclose civilian casualties or to disclose the procedures under which individuals are added to government ‘kill list.’”

An article by Matthew Spurlock, Legal Fellow at the ACLU National Security Project, explained why the ACLU decided to take the administration to court:

Our government’s deliberative and premeditated killings – and the many more civilian deaths from the strikes – raise profound legal and ethical questions that ought to be the subject of public debate. The Obama administration has made numerous promises of greater transparency and oversight on drones. In his 2013 State of the Union address, President Obama pledged to make lethal targeting “more transparent to the American people and the world” because “in our democracy, no one should just take my word for it that we’re doing things the right way.”

But the administration has failed to follow through on these commitments to openness, and it is continuing to withhold basic information­. When it has released anything – or been compelled to by lawsuits – discussion of crucial aspects of the program have been omitted or redacted. This lack of transparency makes the public reliant on the government’s self-serving and sometimes false representations about the targeted-killing program.

The Bureau of Investigative Journalism estimates that 2,442 to 3,942 people in Pakistan have been killed by CIA drone strikes since 2004. Hundreds more people are thought to have been killed by U.S. drones in Yemen, Somalia and Afghanistan.

The White House has formally acknowledged that four of those killed by U.S. drone strikes were United States citizens, one of whom was just 16 years old.

The U.S. has come under intense international criticism over its drone assassination program for years, with a February 2014 report issued by Ben Emmerson, the UN’s Special Rapporteur on human rights and counter-terrorism, urging the United States to ensure that “any measures taken to counter terrorism, including the use of remotely piloted aircraft, comply with their obligations under international law, including international humanitarian law and international human rights law, in particular the principles of precaution, distinction and proportionality.”

Another UN report, issued by the UN Human Rights Committee in March 2014, expressed grave concern about the U.S.’s practice of targeted killings by drones, particularly “the lack of transparency regarding the criteria for drone strikes, including the legal justification for specific attacks, and the lack of accountability for the loss of life resulting from such attacks.”

Despite these concerns, the United States has decided to not only continue its drone assassination program but to begin exporting drones to countries around the world so that they may also begin remotely assassinating people without charge or trial.

Rather hypocritically, the Obama Administration has said that prospective purchasers of “unmanned aerial systems” must meet certain restrictions set out in the State Department’s “Fact Sheet”. For one, purchasers must use armed drones “in accordance with international law, including international humanitarian law and international human rights law, as applicable.”

Unfortunately, it will be the United States – perhaps the world’s most frequent and flagrant violator of international law – determining whether these standards are met.

Obama’s speech: Sidestepping key questions on Gitmo, torture and drones

In a wide-ranging speech Thursday on U.S. counter-terrorism policies, President Obama made a number of encouraging remarks regarding respect for the rule of law and renewed promises to ensure that the United States respects international norms – especially by finally closing the Guantanamo prison camp and guaranteeing that U.S. drone warfare complies with domestic and international law.

Notably, he also pledged that “this war, like all wars, must end,” a relief to many who might be under the impression that the U.S. is in an endless state of war.

Like most Obama speeches, the president touched on many of the right notes and made pledges that most reasonable people would welcome, especially the promise that the war on terror will indeed someday come to an end. But also like most Obama speeches, it is worth weighing the lofty rhetoric against the actual record, and comparing his claims against the facts.

This is true broadly, for example, when it comes to his pledge to someday bring the war on terror to an end, considering that as Commander in Chief he is in charge of the armed forces and has ultimate authority to hasten the war’s end. It is also true more narrowly on specific issues such as his renewed pledge to close Guantanamo.

In his speech, Obama announced the appointment of a new special envoy to focus on Guantanamo transfers and called for Congress’s cooperation:

I once again call on Congress to lift the restrictions on detainee transfers from GTMO. I have asked the Department of Defense to designate a site in the United States where we can hold military commissions. I am appointing a new, senior envoy at the State Department and Defense Department whose sole responsibility will be to achieve the transfer of detainees to third countries. I am lifting the moratorium on detainee transfers to Yemen, so we can review them on a case by case basis. To the greatest extent possible, we will transfer detainees who have been cleared to go to other countries. Where appropriate, we will bring terrorists to justice in our courts and military justice system. And we will insist that judicial review be available for every detainee.

But as the Center for Constitutional Rights pointed out on Twitter, he has had ample time to do what he is now promising to do. “Obama wants to review #Guantanamo transfers on ‘case-by-case basis,’” CCR tweeted. “Didn’t he have 4yrs to do that? Over half the men were cleared yrs ago.”

CCR has long argued that Obama possesses a great deal of authority to make specific transfers and that by failing to show the needed leadership, he may be forever tarnishing his legacy. As the group put it in a statement:

The president’s stated reengagement on Guantanamo is welcome, but long overdue.  However, unless he takes immediate steps to resume transfers and ultimately close the prison, his administration will not escape the “harsh judgment” of history he anticipated in his speech.  We welcome his decision to lift the ban on transfers to Yemen, which has trapped more than half of the men at the prison.  However, we are disappointed by the president’s comment that cleared men will only be released “to the greatest extent possible.”  While more than 100 men continue to starve themselves in a principled protest for their freedom, the president’s equivocation is troubling. After eleven years of detention without charge or trial, all of the men President Obama does not intend to give fair trials should be released and reunited with their families. Anything short of that threatens to worsen a potentially deadly crisis unfolding a Guantanamo.

Amnesty International has also questioned the president’s commitment to closing Guantanamo, noting in a report released yesterday that “At the end of 2012, nearly three years after President Obama’s deadline for closure of the Guantánamo detention facility, 166 men were still held at the base, the vast majority without charge or criminal trial.”

In light of the ongoing hunger strike at Guantanamo, Amnesty has renewed its longstanding demands for the president to use his authority to close the prison camp, urging its supporters to “grab your phone and help us flood the White House with calls demanding action.”

In its annual report on the U.S. human rights situation, Amnesty also questioned the Obama administration’s commitment to holding accountable those who broke the law in the previous administration. In a section entitled “Impunity,” Amnesty lamented:

The absence of accountability for crimes under international law committed under the administration of President George W. Bush in relation to the CIA’s programme of secret detention was further entrenched.

On 30 August, the US Attorney General announced the closure of criminal investigations into the death of two individuals in US custody outside the USA. He stated that no one would face criminal charges in relation to the deaths, believed to have occurred in Afghanistan in 2002 and Iraq in 2003. This followed the announcement in June 2011 that a “preliminary review” conducted into interrogations in the CIA programme was at an end and that, apart from in relation to the two deaths, further investigation was not warranted.

Despite this questionable record enabling torture impunity, Obama felt confident enough to brag about his record Thursday in supposedly returning the United States to the rule of law after eight lawless years of the Bush administration’s approach to the war on terror:

I believe we compromised our basic values – by using torture to interrogate our enemies, and detaining individuals in a way that ran counter to the rule of law.

After I took office, we stepped up the war against al Qaeda, but also sought to change its course. We relentlessly targeted al Qaeda’s leadership. We ended the war in Iraq, and brought nearly 150,000 troops home. We pursued a new strategy in Afghanistan, and increased our training of Afghan forces. We unequivocally banned torture, affirmed our commitment to civilian courts, worked to align our policies with the rule of law, and expanded our consultations with Congress.

While talking about his renewed interest in closing Gitmo, Obama was repeatedly interrupted by Medea Benjamin, an activist with the antiwar group Code Pink:

“Excuse me, President Obama, you are commander in chief,” Benjamin said. Rejecting his attempts to blame the failure to close Guantanamo on Congress, Benjamin shouted, “It’s you, sir!”  She admonished him to “Abide by the rule of law,” reminding him that he’s a constitutional lawyer.

To his credit, Obama stood up for her First Amendment rights and called her passion commendable. “The voice of that woman is worth paying attention to,” he said. “Obviously I do not agree with much of what she said. But these are tough issues. And the idea that we can gloss over them is wrong.”

However, glossing over the issues is precisely what Obama was doing, in some respects. During his talk on drone warfare, for example, he focused narrowly on “one instance when we targeted an American citizen: Anwar Awlaki, the chief of external operations for AQAP.”

Explaining this controversial action, Obama said,

When a U.S. citizen goes abroad to wage war against America – and is actively plotting to kill U.S. citizens; and when neither the United States, nor our partners are in a position to capture him before he carries out a plot – his citizenship should no more serve as a shield than a sniper shooting down on an innocent crowd should be protected from a swat team

That’s who Anwar Awlaki was – he was continuously trying to kill people. He helped oversee the 2010 plot to detonate explosive devices on two U.S. bound cargo planes. He was involved in planning to blow up an airliner in 2009. When Farouk Abdulmutallab – the Christmas Day bomber – went to Yemen in 2009, Awlaki hosted him, approved his suicide operation, and helped him tape a martyrdom video to be shown after the attack. His last instructions were to blow up the airplane when it was over American soil. I would have detained and prosecuted Awlaki if we captured him before he carried out a plot. But we couldn’t. And as President, I would have been derelict in my duty had I not authorized the strike that took out Awlaki.

Awlaki was killed in September 2011 along with Samir Khan, another U.S. citizen who was not specifically targeted 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.

When confronted about this killing last year, White House spokesman Robert Gibbs rather callously blamed the victim for his “choice” of a father:

I would suggest that you should have a far more responsible father if they are truly concerned about the well being of their children. I don’t think becoming an al Qaeda jihadist terrorist is the best way to go about doing your business.

In his speech, Obama did not provide any additional insight into the killing of the two teenagers – whether they were specifically targeted for assassination or on what grounds. What is known, however, is that Obama has approved not only “personality” strikes aimed at identified, high-value terrorists, but also “signature” strikes that target suspicious compounds in areas allegedly controlled by militants.

In fact, according to an analysis by the New America Foundation, of the thousands who have been killed by drone strikes in Pakistan, only 37 – or two percent – were leaders of al-Qaeda or affiliated organizations.

In a letter to Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.) yesterday, Attorney General Eric Holder officially acknowledged for the first time that drone strikes have killed at least four U.S. citizens, only one of whom was specifically targeted however. “Since 2009,” Holder wrote,

the United States, in the conduct of U.S. counterterrorism operations against al-Qa’ida and its associated forces outside of areas of active hostilities, has specifically targeted and killed one U.S. citizen, Anwar al-Aulaqi. The United States is further aware of three other U.S. citizens who have been killed in such U.S. counterterrorism operations over that same time period: Samir Khan, ‘Abd al-Rahman Anwar al-Aulaqi, and Jude Kenan Mohammed. These individuals were not specifically targeted by the United States.

What “not specifically targeted by the United States” means is unclear, but the concept fits in well with what is known about signature strikes, which may target large groups of people based on suspicious activity or perceived associations with “known terrorists.”

“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 New York Times last year. The Times revealed that there has been substantial disagreement in Washington regarding the standards being applied for these attacks:

But some State Department officials have complained to the White House that the criteria used by the C.I.A. for identifying a terrorist “signature” were too lax. The joke was that when the C.I.A. sees “three guys doing jumping jacks,” the agency thinks it is a terrorist training camp, said one senior official. Men loading a truck with fertilizer could be bombmakers — but they might also be farmers, skeptics argued.

Obama’s speech did not address the specific concerns over signature strikes, skirted the issue of the attacks on Awlaki’s 16-year-old son and glossed over the issue of innocent civilian deaths. Noting that “there is a wide gap between U.S. assessments of such casualties, and non-governmental reports,” he did however acknowledge that “U.S. strikes have resulted in civilian casualties, a risk that exists in all wars.”

Nevertheless, Obama claimed that the strikes comply with international law, citing the “Authorization to Use Military Force” that Congress adopted in the days after 9/11.

“Under domestic law, and international law, the United States is at war with al Qaeda, the Taliban, and their associated forces,” Obama said. “We are at war with an organization that right now would kill as many Americans as they could if we did not stop them first. So this is a just war – a war waged proportionally, in last resort, and in self-defense.”

Claiming that the war is broadly in compliance with international law, Obama failed to address the many specific concerns that have been raised by international organizations and officials regarding drone warfare.

Testifying to the UN the Human Rights Council’s following her visit to Pakistan last summer, UN High Commissioner for Human Rights Navi Pillay criticized the use of drone strikes by the United States, noting in particular that they “raise questions about compliance with distinction and proportionality.”

“I also expressed serious concern over the continuing use of armed drones for targeted attacks,” she said,

in particular because it is unclear that all persons targeted are combatants or directly participating in hostilities. The Secretary-General has expressed concern about the lack of transparency on the circumstances in which drones are used, noting that these attacks raise questions about compliance with distinction and proportionality. I remind States of their international obligation to take all necessary precautions to ensure that attacks comply with international law. I urge them to conduct investigations that are transparent, credible and independent, and provide victims with effective remedies.

A 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 UN Charter,” said Philip Alston, the UN’s Special Rapporteur on extrajudicial, summary or arbitrary executions. “If invoked by other states, in pursuit of those they deem to be terrorists and to have attacked them, it would cause chaos.”

As the 2010 UN report states: “Whether or not a specific targeted killing is legal depends on the context in which it is conducted: whether in armed conflict, outside armed conflict, or in relation to the interstate use of force.”

Under the rules of international humanitarian law, the report points out, “targeted killing is only lawful when the target is a ‘combatant’ or ‘fighter’ or, in the case of a civilian, only for such time as the person ‘directly participates in hostilities.’”

In addition, the killing must be militarily necessary, the use of force must be proportionate so that any anticipated military advantage is considered in light of the expected harm to civilians in the vicinity, and everything feasible must be done to prevent mistakes and minimize harm to civilians. These standards apply regardless of whether the armed conflict is between States (an international armed conflict) or between a State and a non-state armed group (non-international armed conflict), including alleged terrorists.

Since the U.S. drone strikes are being carried out far from any battlefield, it is inconceivable that they conform with the “military necessity” requirement under international law, a question that Obama sidestepped in his speech, along with so many other issues.

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.

A 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.

In new low, U.S. claims extrajudicial assassinations legal under domestic, international law

U.S. Attorney General Eric Holder this week laid out the Obama administration’s most comprehensive defense yet of its extrajudicial assassination policies.

Holder’s speech at Northwestern University School of Law on March 5 was notable both for its sweeping redefinitions of certain legal principles – on both the domestic and international levels – and for its skillful utilization of Orwellian doublethink to simultaneously trumpet principles of “American exceptionalism” while undermining the core values that underline those principles.

Holder boasted, for example, that “even when under attack, our actions must always be grounded on the bedrock of the Constitution – and must always be consistent with statutes, court precedent, the rule of law and our founding ideals.” He proudly cited, in particular, the Fifth Amendment to the Constitution, “which says that the government may not deprive a citizen of his or her life without due process of law.”

The attorney general then went on to rationalize the U.S. government’s systematic betrayal of the Fifth Amendment’s due process clause, particularly through its indefinite military detention policies and its program of targeted drone strikes on U.S. citizens and foreign nationals who have been designated by the Executive Branch as enemies of the United States.

This policy has been roundly condemned by human rights organizations and the international community, especially after last fall’s assassination-by-drone of U.S. citizen Anwar al-Awlaki in Yemen.

As Reuters described the assassination program last October,

American militants like Anwar al-Awlaki are placed on a kill or capture list by a secretive panel of senior government officials, which then informs the president of its decisions, according to officials.

There is no public record of the operations or decisions of the panel, which is a subset of the White House’s National Security Council, several current and former officials said. Neither is there any law establishing its existence or setting out the rules by which it is supposed to operate.

The panel was behind the decision to add Awlaki, a U.S.-born militant preacher with alleged al Qaeda connections, to the target list. He was killed by a CIA drone strike in Yemen late last month.

In his speech at Northwestern, Holder defended the process by which individuals are targeted for elimination, arguing that although it is done entirely in secret, it nevertheless follows the Fifth Amendment’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.”

However, as former State Department diplomat Peter Van Buren explained in an article at Huffington Post, Holder’s word games over due process vs. judicial process flies in the face of the original intent of the Fifth Amendment:

Like most of the Bill of Rights, the Fifth Amendment to the Constitution is beautiful in its brevity and clarity. When you are saying something true, pure, clean and right, you often do not need many words: “… nor be deprived of life, liberty, or property, without due process of law.”

There are no footnotes in the Fifth Amendment, no caveats, no secret memos, no exceptions for war, terrorism, mass rape, creation of concentration camps, acts of genocide, child torture or any evil. Those things are unnecessary, because in the beauty of what Lincoln offered to his audience as “a government of the people, by the people, for the people,” the government would be made up of us, the purpose of government was to serve us, and the government would be beholden to us. Such a government would be incapable of killing its own citizens without care and debate and open trial.

Hina Shamsi, director of the American Civil Liberties Union’s National Security Project, pointed out the inherent danger with entrusting one man – in this case the president of the United States – to decide who lives and who dies based on secret evidence without any sort of judicial review:

Few things are as dangerous to American liberty as the proposition that the government should be able to kill citizens anywhere in the world on the basis of legal standards and evidence that are never submitted to a court, either before or after the fact. Anyone willing to trust President Obama with the power to secretly declare an American citizen an enemy of the state and order his extrajudicial killing should ask whether they would be willing to trust the next president with that dangerous power.

In addition to arguing the constitutionality of the extrajudicial killings of American citizens, Holder also blithely asserted that the policy is in compliance with international law.

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’ lawless prosecution of the war on terror in general, and the drone assassination program in particular.

A 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. “If invoked by other states, in pursuit of those they deem to be terrorists and to have attacked them, it would cause chaos.”

Failing to mention these grave concerns articulated by the international community regarding the legality of the U.S. drone program, Holder instead zeroed in on the word “assassination,” which he called a “loaded term.” He acknowledged that if these killings were considered assassinations, they would be unlawful.

“Some have called such operations ‘assassinations,’” he said.

They are not, and the use of that loaded term is misplaced. Assassinations are unlawful killings. Here, for the reasons I have given, the U.S. government’s use of lethal force in self defense against a leader of al Qaeda or an associated force who presents an imminent threat of violent attack would not be unlawful — and therefore would not violate the Executive Order banning assassination or criminal statutes.

Most definitions of “assassination” include two components: that the killing is carried out as a surprise and/or secret attack, and that it is done for political and/or religious reasons.

As the Harvard Law Review pointed out in 2006:

Black’s Law Dictionary defines assassination as ‘the act of deliberately killing someone especially a public figure, usually for hire or for political reasons.’ If termed ‘assassination,’ then attacks on leaders have been construed as prohibited by Article 23b of the Hague Convention of 1899, which outlaws ‘treacherous’ attacks on adversaries, and by the Protocol Addition to the Geneva Convention of 1949, and Relating to the Protection of Victims of International Armed Conflict (Protocol I), which prohibits attacks that rely on ‘perfidy.’

Whether the targeted drone strikes authorized by the President fall under common definitions of “assassination” is a matter of debate. Without a doubt, the strikes contain certain aspects of what are traditionally considered assassinations, in that they are deliberate, surprise, targeted killings of public figures outside of combat zones.

But regardless of the terminology used to describe the killings, the larger point is that the law explicitly prohibits extrajudicial executions, including state-sponsored assassinations, and requires that even the worst criminals be granted due process and fair trials.

In his essay “Politics and the English Language,” George Orwell observed that political prose was formed “to make lies sound truthful and murder respectable, and to give an appearance of solidity to pure wind.”

By separating concepts of “due process” and “judicial process,” and distinguishing unlawful “assassinations” from allegedly legal “targeted killings,” Eric Holder’s speech to Northwestern has taken this maxim to a whole new level.

The fact that the highest law enforcement official in the land was making these spurious arguments to one of the nation’s most elite law schools should send chills down the spine of anyone concerned about the future of the rule of law, and the rights of people anywhere to be protected from arbitrary, state-sanctioned, extrajudicial murder.

To sign a petition demanding that the Justice Department release all legal documents justifying targeted killing of Americans, click here.

Terrorism or not, assassination of Iranian scientist another flagrant violation of international law

Outraged Iranians protest the assassination of Mostafa Ahmadi-Roshan (Photo by AFP/Getty Images)

With the perpetrator of last week’s assassination of a top Iranian nuclear scientist still unidentified, a debate is raging as to whether the brazen daylight car-bombing should legally qualify as an act of terrorism. Jason Pontin, Editor in Chief of Technology Review, has asserted that the bombing was not intended to incite fear in the population, and should therefore be considered assassination, not terrorism.

International law professor Kevin Jon Heller weighed in on the question in a blog post today at Opinio Juris, arguing that under the International Convention for the Suppression of Terrorist Bombings, last week’s assassination of Mostafa Ahmadi-Roshan would qualify. Although the international community has yet to agree on a general definition of terrorism, he points out that Article 2 of the Terrorist Bombing Convention defines an act of terrorism as follows:

1. Any person commits an offence within the meaning of this Convention if that person unlawfully and intentionally delivers, places, discharges or detonates an explosive or other lethal device in, into or against a place of public use, a State or government facility, a public transportation system or an infrastructure facility:

(a) With the intent to cause death or serious bodily injury; or

(b) With the intent to cause extensive destruction of such a place, facility or system, where such destruction results in or is likely to result in major economic loss.

While under this definition, the bombing last week in Tehran would seem to qualify as “terrorism,” the whole debate is arguably a bit academic and beside the point. Even under the U.S. government’s definition in the Patriot Act, the bombing that killed Ahmadi-Roshan would certainly qualify as terrorism.

Section 802 of the Patriot Act define acts of terrorism as “activities that (A) involve acts dangerous to human life … that (B) appear to be intended (i) to intimidate or coerce a civilian population, (ii) to influence the policy of a government by intimidation or coercion, or (iii) to affect the conduct of a government by mass destruction, assassination, or kidnapping.”

But of course, this is the U.S. government’s definition terrorism within the United States. When the question is whether an act of violence in a foreign country is an act of terrorism, different rules apply and can be altered as needed.

There are in fact myriad definitions of terrorism that can shift and change depending on the political whims of the day. One of the clearest examples of this was when the U.S. government removed the Kosovo Liberation Army from its list of “Foreign Terrorist Organizations” in 1998.

The State Department de-listed the KLA that year as the U.S. was attempting to increase pressure on Yugoslav president Slobodan Milosevic and the Clinton administration was lobbying France to do the same. From then on, the United States maintained diplomatic relations with the KLA’s leaders and spoke of them not as terrorists, but as freedom fighters justly resisting oppression.

As this instance makes clear, “terrorism” is a loaded term that has more to do with political realities than any objective realities.

This is why the question of whether last week’s killing of Ahmadi-Roshan should qualify as terrorism is a bit of a red herring. Whether “terrorism” or not, the bombing was obviously an assassination, and as the Harvard Law Review pointed out in 2006 in an article about the new usage of the preferred euphemism “targeted killing”:

Black’s Law Dictionary defines assassination as ‘the act of deliberately killing someone especially a public figure, usually for hire or for political reasons.’ If termed ‘assassination,’ then attacks on leaders have been construed as prohibited by Article 23b of the Hague Convention of 1899, which outlaws ‘treacherous’ attacks on adversaries, and by the Protocol Addition to the Geneva Convention of 1949, and Relating to the Protection of Victims of International Armed Conflict (Protocol I), which prohibits attacks that rely on ‘perfidy.’

Even the U.S. government has acknowledged that these types of assassinations would be illegal under international conventions.

Back in October, when the United States accused the Iranian government of being involved in a plot to assassinate the Saudi ambassador to the United States, Attorney General Eric Holder said that the alleged assassination attempt “constitutes a flagrant violation of U.S. and international law.”

Vice President Joe Biden said on NBC, “Every nation in the world, when they learn the facts of this, will be outraged that (Iran) would violate such an international norm, in addition to obviously being a crime to assassinate anybody, and in the process probably have killed scores of Americans.”

Secretary of State Hillary Clinton said on Oct. 12, “This kind of reckless act undermines international norms and the international system. Iran must be held accountable for its actions.”

U.S. Representative Peter King, Chairman of the House Homeland Security, called the alleged Iranian plot an “act of war.”

The response to the assassination of Ahmadi-Roshan has been a bit more muted.

“I want to categorically deny any United States involvement in any kind of act of violence inside Iran,” Clinton told reporters last week when asked about the attack.

Victoria Nuland, Clinton’s spokeswoman, said the State Department condemned “any assassination or attack on an innocent person and we express our sympathies to the family.”

Some prominent politicians, however, praised the assassination, with Republican presidential candidate Rick Santorum saying that killing Iranian scientists is “wonderful,” as it sends a message to those who work on Iran’s nuclear program that they “are not safe.”

Santorum’s comments came just days after Defense Secretary Leon Panetta stated frankly that Iran is not currently attempting to develop nuclear weapons.

“Are they trying to develop a nuclear weapon? No. But we know that they’re trying to develop a nuclear capability. And that’s what concerns us,” Panetta told “Face the Nation” host Bob Schieffer. “And our red line to Iran is to not develop a nuclear weapon. That’s a red line for us.”

In the same segment, General Martin Dempsey, Chairman of the Joint Chiefs of Staff, was asked whether the U.S. “should take out their nuclear capabilities.”

Dempsey replied that “I certainly want them to believe that that’s the case.”

So, within a one-minute segment on a nationally broadcast television program, the Secretary of Defense concedes that Iran is not trying to develop a nuclear weapon, and the Chairman of the Joint Chiefs of Staff issues an ambiguous threat to bomb the country nonetheless.

This veiled threat could be seen as violating the UN Charter, which states:

All Members shall settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered.

All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.

It should also be noted that Iran is within its rights under the Nuclear Non-Proliferation Treaty (NPT) to develop nuclear technology for peaceful purposes, as it claims to be doing and as Leon Panetta recently acknowledged. Entering into force in 1970, the NPT recognizes the right of five countries — China, France, Russia, United Kingdom, and the United States — to possess nuclear weapons, conditional upon eventual disarmament, and the right of other signatories to use nuclear technology for peaceful purposes, conditional upon their non-acquisition of nuclear weapons.

The treaty is essentially a mutual promise between nuclear-armed countries to rid themselves of these weapons and non-nuclear states to abstain from attaining them:

Each of the Parties to the Treaty undertakes to pursue negotiations in good faith on effective measures relating to cessation of the nuclear arms race at an early date and to nuclear disarmament, and on a treaty on general and complete disarmament under strict and effective international control.

The U.S., the only country to have ever used nuclear weapons in war, continues to lead the world in stockpiling them. It has also detonated the lion’s share of nuclear tests, as this YouTube video illustrates:

In its 2010 Nuclear Posture Review, the U.S. essentially admitted that it has no intention of ever ridding itself of nuclear weapons. “As long as nuclear weapons exist,” the Review states, the United States will sustain safe, secure, and effective nuclear forces.”

It therefore would seem that the United States is shirking its end of the bargain in the NPT to work towards full nuclear disarmament.

For its part, Iran says its nuclear program is for peaceful purposes only, and has the support of a good portion of the international community. Last November, the the Non-Aligned Movement (NAM), an international grouping of 120 member states, reiterated its support for Tehran’s nuclear rights.

In a statement to the International Atomic Energy Agency (IAEA)’s Board of Directors, NAM called for creating a nuclear-arms free zone in the Middle East, urging that an agreement must be signed by world nations under which any attack on nuclear facilities is banned.

Iran now claims to have evidence the U.S. was behind the killing of Mostafa Ahmadi-Roshan in Tehran last week, and is seeking the support of NAM in responding to the incident.

Iran’s state TV reported that the Iranian foreign ministry had, in a letter handed to the Swiss ambassador in Tehran, said: “We have reliable documents and evidence that this terrorist act was planned, guided and supported by the CIA.”

In a letter last week to Khaled Abdelrahman Shamaa, the representative of the NAM chairman to the UN office in Vienna, Iran called on the 120-member international body to take proper measures to prevent the assassination of nuclear scientists.

The letter outlined the need for the implementation of proper strategies to prevent the assassination of scientists anywhere, but particularly in developing countries.