The United States is coming under intense criticism for its policies on a range of issues, including drone strikes and the nationwide epidemic of police violence.
While at first glance, these issues might appear unrelated, in fact they are part and parcel of the U.S. government’s foreign and domestic policy, a generally lawless approach that has been greatly exacerbated by a decade-plus of the war on terror.
The violence perpetrated by the U.S. military on a global scale since 2001 is now increasingly being employed by security forces domestically, and the impunity that high-ranking U.S. officials have long enjoyed is now trickling down to the street level at home.
As a 2007 report prepared for the United Nations Human Rights Committee stated, the war on terror has “created a generalized climate of impunity for law enforcement officers, and contributed to the erosion of what few accountability mechanisms exist for civilian control over law enforcement agencies. As a result, police brutality and abuse persist unabated and undeterred across the country.”
“Systemic abuse of people of color by law enforcement officers has not only continued since 2001,” the report noted, “but has worsened in both practice and severity. According to a representative of the NAACP, ‘the degree to which police brutality occurs…is the worst I’ve seen in 50 years.’”
Even establishment publications such as the Wall Street Journal have noticed the troubling trend of rising police violence and its relationship to the war on terror, dubbing the new breed of U.S. police officers “the warrior cop.” As a feature article in WSJ put it in August 2013,
Driven by martial rhetoric and the availability of military-style equipment—from bayonets and M-16 rifles to armored personnel carriers—American police forces have often adopted a mind-set previously reserved for the battlefield. The war on drugs and, more recently, post-9/11 antiterrorism efforts have created a new figure on the U.S. scene: the warrior cop—armed to the teeth, ready to deal harshly with targeted wrongdoers, and a growing threat to familiar American liberties.
As the problem of police brutality and the lack of accountability continues to intensify, so too does popular resistance. A recent film produced by the U.S.-based Liberation News documents the budding grassroots movement against police violence in California and across the country, with heart-wrenching stories of innocent people routinely shot down by rogue cops who rarely if ever face justice for their crimes.
Tuesday, Oct. 22, marked the 18th annual national day of action against police violence, with demonstrators in dozens of cities across the U.S. protesting what they call an “epidemic of police brutality.” While most protests were peaceful, others saw violent clashes with police.
“Police view all blacks and Latinos as criminals that are allowed to be either stopped and frisked here in New York,” a protester in New York City said. “In LA, … three or more black or brown youth standing together are considered a gang with no rights and are allowed to be rounded up.”
“Hundreds every year are killed by the police, and the majority of them are unarmed, not involved in any criminal activity when they were killed. And also the majority of them were young, and either black or Latino,” said Carl Dix, representative for the October 22 Coalition.
At the heart of the issue are the lax standards that U.S. police forces employ in determining whether to use force. Much like the loose “rules of engagement” that govern U.S. military forces abroad, domestic police appear to operate under the belief that they are allowed to harass and even shoot innocent people with impunity, all in violation of international norms.
As Article 3 of the UN Code of Conduct for Law Enforcement Officials puts it, police “may use force only when strictly necessary and to the extent required for the performance of their duty.”
The commentary on Article 3 further explains:
( a ) This provision emphasizes that the use of force by law enforcement officials should be exceptional; while it implies that law enforcement officials may be authorized to use force as is reasonably necessary under the circumstances for the prevention of crime or in effecting or assisting in the lawful arrest of offenders or suspected offenders, no force going beyond that may be used.
( b ) National law ordinarily restricts the use of force by law enforcement officials in accordance with a principle of proportionality. It is to be understood that such national principles of proportionality are to be respected in the interpretation of this provision. In no case should this provision be interpreted to authorize the use of force which is disproportionate to the legitimate objective to be achieved.
( c ) The use of firearms is considered an extreme measure. Every effort should be made to exclude the use of firearms, especially against children. In general, firearms should not be used except when a suspected offender offers armed resistance or otherwise jeopardizes the lives of others and less extreme measures are not sufficient to restrain or apprehend the suspected offender. In every instance in which a firearm is discharged, a report should be made promptly to the competent authorities.
Much as these international obligations on domestic police are ignored in the U.S., so too are international obligations on use of force abroad. On the same day that Americans were marching across the country to protest police violence, two leading human rights groups were issuing major new reports on the use of drone strikes abroad.
In its report on Yemen, Human Rights Watch found that U.S. drone strikes against alleged terrorists have killed civilians in violation of international law and are creating a public backlash that undermines U.S. efforts against Al-Qaeda in the Arabian Peninsula.
The 102-page report examines six U.S. targeted killings in Yemen, one from 2009 and the rest from 2012-2013. “Two of the attacks killed civilians indiscriminately in clear violation of the laws of war; the others may have targeted people who were not legitimate military objectives or caused disproportionate civilian deaths,” said HRW.
Amnesty International’s report finds that many questionable killings in the U.S. drone wars in Pakistan may constitute extrajudicial executions or war crimes. Based on interviews with 60 survivors and eyewitnesses to these strikes, “Will I be next?” documents potentially unlawful killings, and offers recommendations to the U.S. government for upholding its obligations to protect the right to life and ensure accountability for any war crimes.
In an interview on Democracy Now, the report’s author Mustafa Qadri explained Amnesty International’s determination that at least some of the drone strikes constitute war crimes.
“We’re not saying that the entire program constitutes war crimes,” Qadri said.
What we’re saying is that particularly rescuer attacks may constitute war crimes. We’re talking here, for example, some laborers in a very impoverished village near the Afghanistan border, they get targeted, eight die instantly in a tent; those who come to rescue or to look for survivors are themselves targeted. In great detail, eyewitnesses, victims who survive tell us about, you know, the terror, the panic, as drones hovered overhead. There are other cases, as well, in the report where we talk about people who have been targeted for coming to be—to rescue people also killed. Those cases may constitute war crimes.
He went on to explain that under international law, only those who are actively taking part in hostilities may be legally targeted for killing:
The law is quite technical. But basically, it could be because of a spillover of the conflict in Afghanistan, so that, for example, if you have a military commander of the Afghan Taliban, he’s in hot pursuit from Afghanistan, he slips into the border into North Waziristan, in the right conditions—there’s a whole range of requirements—that might be lawful. Alternatively, Pakistan is itself fighting a non-international armed conflict in its own borders against the local insurgency; the U.S. has killed members of that insurgency, very senior members of that. Now, that might be lawful. But again, there are very strict requirements that have to be satisfied. One of the requirements is not that a person who is a militant is lawfully—can be lawfully killed. It’s not enough that a person is militant to say that it’s OK to kill them. They have to be taking active part in hostilities to be lawfully targeted.
Following the report’s release, Pakistan’s Foreign Office spokesman Aizaz Ahmad Chaudhry called it very timely and noted that its conclusions were essentially the same as what Pakistan has been saying for years.
Speaking to Geo News, Chaudhry said that it was being internationally recognized that the results of drone attacks have been counterproductive, a point that Malala Yousafzai, the Pakastani girl who was shot in the head on her school bus by Taliban gunmen for criticizing their rule, also made with President Obama during a meeting in the Oval Office on October 11.
“I thanked President Obama for the United States’ work in supporting education in Pakistan and Afghanistan and for Syrian refugees,” she said after the meeting. “I also expressed my concerns that drone attacks are fueling terrorism. Innocent victims are killed in these acts, and they lead to resentment among the Pakistani people. If we refocus efforts on education it will make a big impact.”
Days after Malala’s remarks, a report was issued by United Nations Special Rapporteur Christof Heyns, which warned that the secretive drone program threatens international security due to a “lack of appropriate transparency and accountability.”
The report on ‘Extrajudicial, summary or arbitrary executions,’ also warns that so-called ‘signature strikes,’ based upon limited information regarding targets’ vague behavior patterns, are “clearly unlawful,” and condemns the practice of follow-up attacks on rescuers (so-called “double taps”) as a “war crime.”
Pakistani Prime Minister Nawaz Sharif added his voice to the growing international pressure on October 23 by calling on Barack Obama to end all strikes in his country. At the end of a visit to the White House, Sharif told reporters that he had “emphasized the need to end such strikes,” which are estimated to have killed between 2,525 and 3,613 people in Pakistan since 2004.
But even as international pressure grows on the United States to rein in its unlawful drone killings abroad, the U.S. is expanding the use of drone technology at home. In June, FBI Director Robert Mueller acknowledged to the Senate Judiciary Committee that the bureau uses unmanned drones for surveillance on U.S. soil. He added that such drone use is done in a “very, very minimal way, and very seldom.”
The ACLU, however, notes that “U.S. law enforcement is greatly expanding its use of domestic drones for surveillance” and says that “rules must be put in place to ensure that we can enjoy the benefits of this new technology without bringing us closer to a ‘surveillance society’ in which our every move is monitored, tracked, recorded, and scrutinized by the government.”
Drone manufacturers are also offering police the option of arming these flying robots with weapons like rubber bullets, Tasers, and tear gas, notes the ACLU. The group warns that drones should be deployed by law enforcement only with a warrant, in an emergency, or when there are specific and articulable grounds to believe that the drone will collect evidence relating to a specific criminal act.
Further, “domestic drones should not be equipped with lethal or non-lethal weapons,” says the ACLU.
Considering the growing proclivity of U.S. police forces to engage in lethal force against civilians at home, and the U.S. military’s troubling track record abroad, it could be said that the ACLU’s mild admonitions could be considered understated at best.
The violence and impunity with which security forces operate are a clear danger to society both within the United States and overseas. Adding domestic drones to the arsenal of local police weapons is only inviting further tragedy.
Indeed, unless the American people and the world community begin to demand that the U.S. abides by the international norms that it demands of “rogue states” such as Syria or Iran, the United States will likely continue its slide into an authoritarian country in which human rights are cast aside as an irrelevant nuisance.
Over the past week, international bodies such as the European Parliament and the UN Human Rights Committee have raised grave concerns over continuing U.S. lawlessness in its prosecution of the war on terror, and in particular the travesty of justice known as Guantanamo Bay.
In a resolution adopted last Thursday, the day of President Obama’s big speech attempting to reassure the American public and the international community about drones and Gitmo, the European Parliament noted concern for the well-being of the hunger striking prisoners at Guantanamo and especially those being force-fed. The EP expressed anxiety in particular over the mental and physical condition of the prisoners, “a number of whom have been subjected to torture or inhuman and degrading treatment.”
The European Parliament reiterated its call on the US authorities “to close the Guantánamo Bay detention camp immediately and prohibit the use of torture and ill-treatment in all circumstances” and called “for those inmates who have been cleared for release to be released, transferred to their home countries or other countries for resettlement, and for the remaining detainees to be charged in a civil court with fair trial standards.”
The body also criticized the military commissions that have been set up to try some Guantanamo detainees, as these commissions “do not meet international fair trial standards.”
It further pointed out that the continuing detention without charge or trial of these 166 men is contrary to basic principles of justice. Arbitrary detention “is in clear breach of international law and that this severely undermines the United States’ stance as an upholder of human rights,” noted the resolution.
As British journalist Andy Worthington explained,
As far as current action is concerned, involving European countries directly, the European Parliament resolution is noteworthy for its call for the coordination of “a joint EU Member States’ initiative” not only “to urge the US President to act” on revisiting his failed promise to close Guantánamo, but also to offer to “receive additional Guantánamo inmates on European soil, especially the approximately dozen men cleared for release who cannot return to their home countries.”
Testifying at the UN Human Rights Committee today, High Commissioner on Human Rights Navi Pillay warned that U.S. counter-terror policies are violating human rights and undermining international law. She criticized in particular Obama’s failure to close Guantanamo and admonished European nations for participating in the forced disappearance program dubbed “extraordinary rendition” by the United States.
“The United States’ failure to shut down the Guantanamo detention centre has been an example of the struggle against terrorism failing to uphold human rights, among them the right to a fair trial,” Pillay said.
The continuing indefinite detention of many of these individuals amounts to arbitrary detention, in breach of international law, and the injustice embodied in this detention centre has become an ideal recruitment tool for terrorists. I have repeatedly urged the Government of the United States of America to close Guantanamo Bay in compliance with its obligations under international human rights law. I therefore acknowledge President Obama’s statement last Thursday outlining practical steps towards closing the detention facility, such as the lifting of the moratorium on transferring relevant detainees to Yemen. I encourage the United States to ensure that all such measures are carried out in compliance with its obligations under international human rights law. In the meantime, so long as Guantanamo remains open, the authorities must make every effort to ensure full respect for the human rights of detainees, including those who choose to go on hunger strike.
I am dismayed by the continuing failure of many European States to undertake public and independent investigations of past involvement in the U.S. renditions programme, under which terrorist suspects were captured and delivered to interrogation centres without regard for due process. Some of them still languish in Guantanamo. Last September, the European Parliament denounced obstacles that have been encountered by a number of parliamentary and judicial inquiries into this topic. Credible and independent investigations are a vital first step towards accountability, and I call on States to make this a priority.
Last July, the OSCE Parliamentary Assembly – a 323-member organization comprising lawmakers from Europe, North America and Central Asia – also adopted a resolution condemning the Obama administration’s blocking of European investigations into extraordinary rendition.
Supporting the criminal investigation carried out by Polish authorities into the rendition program and welcoming attempts by British parliamentarians to ascertain the level of the United Kingdom’s involvement, the resolution “insists that the United States Government co-operates with European investigations” and “calls upon the United States to release any pertinent information to appropriate investigators.”
Needless to say, since then, the U.S. has not adequately dealt with the rendition question. A 213-page report published earlier this year by the Open Society Justice Initiative documented how the CIA conspired with dozens of governments around the world to build a secret extraordinary rendition and detention program that spanned the globe and that the United States has failed to conduct effective investigations into these policies.
To date, the U.S. and the vast majority of the other 54 governments involved have refused to acknowledge their participation, much less compensate the victims, or hold accountable those most responsible for the program and its abuses, the Open Society concluded.
In its report on the U.S. human rights situation released last week, Amnesty International criticized the lack of accountability for deaths that have occurred in secret detention by the United States.
“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,” lamented Amnesty, noting in particular the lack of investigations into the deaths of two men who were believed to be tortured to death in U.S. custody.
Further, Amnesty International expressed concern over the use of drone strikes by the U.S. which amount to a policy of “extrajudicial executions in violation of international human rights law.”
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.
With various countries developing drone technology and threatening to break the U.S. monopoly on the ability drop bombs by remote control, the Obama administration is reportedly seeking to influence global rules on the use of weaponized drones.
As Reuters reported March 17,
President Barack Obama, who vastly expanded U.S. drone strikes against terrorism suspects overseas under the cloak of secrecy, is now openly seeking to influence global guidelines for their use as China and other countries pursue their own drone programs.
The United States was the first to use unmanned aircraft fitted with missiles to kill militant suspects in the years after the September 11, 2001, attacks on New York and Washington.
But other countries are catching up. China’s interest in unmanned aerial vehicles was displayed in November at an air show. According to state-run newspaper Global Times, China had considered conducting its first drone strike to kill a suspect in the 2011 murder of 13 Chinese sailors, but authorities decided they wanted the man alive so they could put him on trial.
“People say what’s going to happen when the Chinese and the Russians get this technology? The president is well aware of those concerns and wants to set the standard for the international community on these tools,” said former White House spokesman Tommy Vietor.
The hypocrisy and double standards on display regarding this issue are truly stunning. For one thing, the irony of the fact that China – no paragon of human rights or the rule of law – has apparently foregone using this technology (so far) in favor of pursuing justice in the courts should not be lost on anyone. Secondly, the audacity of a White House spokesman preaching the value of the U.S. “set[ting] the standard for the international community on these tools” is dripping with such duplicity that it’s difficult to wrap one’s head around.
The international community, of course, has been raising objections to the U.S. war on terror in general, and the drone wars in particular, for years. A 2010 United Nations report on extrajudicial assassinations stated that a targeted killing outside of an actual battlefield “is almost never likely to be legal,” rejecting the U.S. doctrine of “pre-emptive self-defense” as a justification for killing terrorism suspects far from combat zones.
In a section dealing specifically with drones, the report noted that “a missile fired from a drone is no different from any other commonly used weapon, including a gun fired by a soldier or a helicopter or gunship that fires missiles.” However, “the critical legal question is the same for each weapon: whether its specific use complies with international humanitarian law.”
Rather than dwelling on the specific technology used to carry out extrajudicial assassinations, the UN pointed out that “the greater concern with drones is that because they make it easier to kill without risk to a State’s forces, policy makers and commanders will be tempted to interpret the legal limitations on who can be killed, and under what circumstances, too expansively.”
The expansive interpretation that the U.S. has applied to its targeting killing program “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, 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.”
The UN is now investigating in detail 25 drone strikes in Afghanistan, Pakistan, Yemen, Somalia and Palestine where civilian deaths are credibly alleged. Announced on Jan. 24, it is the first official international inquiry into the drone program.
UN Special Rapporteur Ben Emmerson, who is leading the investigation, has made clear that he’s not shying away from exposing U.S. “war crimes.”
On March 15, Emmerson told the Associated Press that, at the very least, the attacks violate Pakistan’s sovereignty. The Pakistani government made clear to him that it does not consent to the strikes, which have killed at least 400 civilians, Emmerson said. The statement was released following the investigator’s three-day visit to the country last week.
Yemen, another frequent target of U.S. drone strikes, has also made clear that it wants the bombings to end. Following an attack in January that killed three suspected terrorists, a Yemeni cabinet minister criticized Obama’s drone war in Yemen, noting that innocent civilians are often killed in these strikes.
“To have an innocent person fall, this is a major breach,” Yemeni Human Rights Minister Hooria Mashhour told Reuters. “I am in favor of changing the anti-terrorism strategy, I think there are more effective strategies that can be applied on the ground without harming civilians and without leading to human rights violations.”
Despite these criticisms, Caitlin Hayden, a spokeswoman for the National Security Council, says that the White House is refining the decision-making process for who gets targeted for aerial assassination, mindful of the possibility that other nations are pursuing this this technology.
“We are constantly working to refine, clarify, and strengthen the process for considering terrorist targets for lethal action,” Hayden said.
The administration recognizes “we are establishing standards other nations may follow,” she said.
But Zeke Johnson, Director of Amnesty International USA’s Security with Human Rights Campaign, pointed out in a recent blog post that the number one priority in the campaign to rein in the use of drones is to ensure that “the Obama administration must follow existing law on the use of lethal force.”
While Senator Dick Durbin has stated that the administration is willing to work with Congress to pass new legislation regarding the use of drones, the fact is, laws already exist governing any state’s use of lethal force regardless of the weapon: international human rights law and, in some circumstances, international humanitarian law. “The U.S. government must follow the law,” wrote Johnson, and “recognize that ALL people are equal in rights.”
Archbishop Desmond Tutu expressed the thoughts of many around the world when he recently wrote regarding the U.S. drone program,
Do the United States and its people really want to tell those of us who live in the rest of the world that our lives are not of the same value as yours? That President Obama can sign off on a decision to kill us with less worry about judicial scrutiny than if the target is an American? Would your Supreme Court really want to tell humankind that we, like the slave Dred Scott in the 19th century, are not as human as you are? I cannot believe it.
In April, a series of protest actions will be held around the United States calling attention to the criminality of U.S. drone policy. The protests are being organized around the following principles:
- Armed drones are weapons of terror. They kill combatants and civilians, children and adults, men and women, alike. Their presence overhead terrorizes entire communities.
- Extrajudicial assassinations by killer drones violate U. S. and international law.
- Surveillance drones threaten our liberties, spying on communities and borders, invading our personal privacy.
- Drones make our families less secure by making it easier for military and paramilitary agencies (like the CIA) to continue endless war without limits in either space or time.
Kicking off on April 4, the 45th anniversary of the assassination of civil rights leader and peace advocate Martin Luther King, the demonstrations will specifically target drone manufacturers, including General Atomics, maker of the Predator and Reaper drones.
Protests will also be held at Air Force and National Guard bases that control the U.S. military drone program in their regions.
A national march and rally will also be held at the White House on April 13, calling for an end to the U.S. drone wars. As the call to action reads,
Over 3,000 people have been murdered by U.S. drone strikes in the last few years, including a large number of children among the many civilians who have been slaughtered by these robotic killing machines.
Sitting in offices thousands of miles away from their targets, U.S. operators routinely decide to “push the button” and kill their unsuspecting targets on the ground with hellfire missiles fired from unseen drone aircraft. In Pakistan and Afghanistan, villagers have staged mass protests against drone strikes after their kids were incinerated while they were collecting firewood or farming in nearby fields.
The demonstration is being organized by the ANSWER Coalition, which held some of the country’s largest protests against the Iraq War last decade, and has been endorsed by CODEPINK, the Council on American Islamic Relations, Veterans for Peace and others.
“Join us at the White House for a march and rally on Saturday, April 13,” reads the call to action, “to let the world know that the people of this country are demanding ‘Drones Out of Africa and Everywhere!’”
Amnesty International is also organizing a campaign to demand that the Obama administration follows international law in the use of drones. “Amnesty International is deeply concerned that the Obama administration’s so-called ‘targeted killing’ program allows for the use of lethal force, including with drones, that violates the right to life under international law,” Amnesty states.
Another campaign, organized by Veterans for Peace, details a ten-point program for the new Secretary of Defense Chuck Hagel. Point number four states, “Stop the illegal use of combat drones that are responsible the extrajudicial assassinations of thousands of civilians in Afghanistan, Pakistan, Yemen and Somalia.”
To add your name, click here.
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.