The US Drone Assassination Program – Global Protest
The Threat of Dictatorship
Thursday’s confirmation hearing for John Brennan, President Barack Obama’s nominee for director of the US Central Intelligence Agency, provided a revealing and grim spectacle of the disintegration of what remains of democratic rights in the United States.
Some press accounts of the hearing have referred to Brennan being “grilled” on the US drone assassination program. On the contrary, the proceedings resembled nothing so much as a well-fed cat being questioned by a panel of skittish mice.
Brennan came as the representative of those within the US military-intelligence apparatus entrusted with defending the ruling class by means of killings, detentions and torture. As Obama’s counterterrorism adviser and the architect and director of an assassination program run out of the White House, he has presided over an unprecedented expansion of executive power and assault on core constitutional rights.
One senator after another, Democrats no less than Republicans, fawned over Brennan, declaring their admiration and gratitude for the bloody work of the CIA and their eager anticipation of confirming him as CIA director and working closely with him in the near future. None of them directly challenged the assertion of the most sweeping of the extra-constitutional powers with which he is identified—the power of the president of the United States to unilaterally and secretly order the assassination of American citizens.
Among those who expressed certain qualms about this system of extra-judicial executions was Senator Angus King of Maine, who helpfully suggested that a star chamber-style secret court be set up to rubber stamp and sanctify the White House’s “kill lists.”
Senator Ron Wyden of Oregon—in the context of present day US politics the most “liberal” member of the Senate intelligence panel—merely pleaded with Brennan for more public information on the drone assassination program. “Americans have a right to know when their government thinks it’s allowed to kill them,” he declared.
Contained in this statement is the tacit recognition that the rights enumerated in the US Constitution, including the 5th Amendment’s guarantee that no one “shall be deprived of life … without due process,” have been turned into a dead letter.
Wyden went on to ask for clarification as to whether the administration believes that the president can use this authority inside the United States. Brennan’s response omitted any assurance that American citizens will not be secretly murdered on US soil. Instead, he cryptically asserted his determination to “optimize transparency on these issues, but at the same time, optimize secrecy and the protection of our national security.” Neither Wyden nor anyone else on the Senate committee attempted to probe further.
With this chilling exchange, the threat of a US police state dictatorship comes clearly into view. Brennan will not disavow the president’s “right” to secretly murder US citizens on American soil, because such methods may prove necessary, ostensibly for the struggle against “terrorism” and in defense of “national security.”
After all, they proved to be so in other countries. Obama and Brennan did not invent the methods of secret “kill lists” and covert assassinations. They were employed on an industrial scale less than four decades ago in the Chile of General Augusto Pinochet and the Argentina of General Jorge Videla.
There, military and intelligence officials, most of them trained in the US, drew up kill lists of tens of thousands of their own citizens and carried out their assassinations. They also acted in the name of a struggle against “terrorism” and in defense of “national security,” but had the real aim of crushing the resistance of the working class.
Workers, students, peasants, intellectuals and anyone perceived to be a potential enemy of the state were rounded up by death squads, tortured and killed in secret prisons or thrown alive from airplanes into the sea. Like Mr. Brennan, the officials of the Argentine and Chilean dictatorships refused to acknowledge any role in these state killings, leaving their victims to be counted among the “disappeared.”
Those comforting themselves with the old adage, “It can’t happen here,” should think again. The lurch to the right by the entire American political establishment and its irrevocable break with the democratic principles enunciated in the Constitution and the Bill of Rights are very far advanced.
Less than 40 years ago, a special Senate committee headed by Idaho Senator Frank Church did grill top CIA officials on covert assassinations, denouncing the agency for the practice and introducing a law against it. Even Republican President Gerald Ford was compelled to declare that his administration “does not condone under any circumstances any assassination attempts,” and to “condemn any CIA involvement” in “assassination planning.”
While no doubt the US government and its spy agency continued to carry out crimes in subsequent years, support for bourgeois democratic forms of rule within the political establishment remained sufficiently strong to force the government to officially reject assassination as state policy.
Just four years ago, Brennan’s involvement as a top CIA official under the Bush administration in the crimes of torture, extraordinary rendition and secret CIA “black sites” made it impossible for Obama to nominate him as CIA director. Now, not only are those crimes forgiven, but the even more serious ones involved in the drone assassination program go unchallenged.
We have already seen in the past few years anti-terror laws invoked against domestic protesters and dissidents, from the arrest of five men last May in Chicago on “conspiracy to commit terrorism” charges for their involvement in anti-NATO protests, to the revelation that the FBI carried out a nationwide investigation treating the Occupy Wall Street protests as “domestic terrorism.”
Driving the turn towards methods associated with police state dictatorships are deep-going changes in the structure of American society. The vast and ever-widening chasm between the billionaires and multi-millionaires who control economic and political life and working people, the great majority of the population, is incompatible with democracy.
This is ultimately what explains the complicity of the Obama administration, Congress, both major parties and the mass media in the drone assassination program. America’s ruling oligarchy realizes that deepening social polarization and the protracted economic crisis are creating conditions for social upheavals, and is preparing accordingly.
The working class must make its own preparations for the revolutionary battles that are to come.
Expanding Executive Power for Extrajudicial Executions: An Interview with Marjorie Cohn About DOJ Drone Memo
DB: We continue our discussion of the revelations around a memo coming out of the Justice Department that the administration plans to keep up these assassinations and expand the program. Joining us to take a legal look at this is Marjorie Cohn, Professor at Thomas Jefferson School of Law and former President of the National Lawyers Guild. She is also the editor of The United States and Torture: Interrogation, Incarceration, and Abuse. Welcome back to Flashpoints, Marjorie. You say the White Paper runs afoul of international and US law. Please explain.
MC: The White Paper allows the government to kill a US citizen who is not on the battlefield, if some high government official who is supposedly informed about the situation thinks that the target is a senior Al Qaeda leader who poses an imminent threat of a violent attack against the United States. So how do they define “imminence”? Well, it doesn’t require any clear evidence that a specific attack on US persons and interests will take place in the immediate future. So it completely dilutes this whole idea of imminent threat. Under well-established principles of international law and the UN Charter, one country can use military force against another only in self-defense. But under the Caroline case, which is the gold standard here, the “necessity for self-defense must be instant, overwhelming, leaving no choice of means, and no moment for deliberation.” That means we are going to be attacked right away and we can use force. But the very nebulous test that the White Paper lays out even allows the targeted killing of somebody who is considered to be a “continuing” threat, whatever that means. The most disturbing part of it says that US citizens can be killed even when there is no “clear evidence that a specific attack on US persons and interests will take place in the immediate future.” So we have a global battlefield, where if there is someone, anywhere, who might be associated with Al Qaeda, according to a high government official, then Obama can authorize (it’s not even clear Obama himself has to authorize these targeted killings, these drone attacks) on Terror Tuesday (thanks to the New York Times exposé several months ago) who he is going to kill after consulting with John Brennan. John Brennan, of course, is his counter-terrorism guru who is up for confirmation to be CIA Director. Very incestuous. John Brennan has said that targeted killings constitute lawful self-defense.
One of the most disturbing things here is the amassing of executive power with no review by the courts, no checks and balances. So the courts will have no opportunity to interpret what “imminence” means, or what “continuing” threat means. The White Paper cites John Yoo’s claim that courts have no role to play in what the president does in this so-called War on Terror where the whole world is a battlefield. I say so-called War on Terror because terrorism is a tactic. It’s not an enemy. You don’t declare war on a tactic. And the White Paper refers to Yoo’s view that judicial review constitutes “judicial encroachment” on the judgments by the president and his National Security advisors as to when and how to use force. The White Paper cites Hamdi v. Rumsfeld which says the President has the authority to hold US citizens caught on the battlefield in Afghanistan as enemy combatants. But in Hamdi, the Supreme Court stated that a US citizen who is being detained as an enemy combatant is entitled to due process. Due process means an arrest and a fair trial. It doesn’t mean just taking him out with a drone. Also, there’s another interesting passage in this White Paper. It says “judicial enforcement [a court reviewing these kill orders of the executive] of such orders would require the court to supervise inherently predictive judgments by the president and his national security advisors as to when and how to use force against a member of an enemy force against which Congress has authorized the use of force.” Inherently predictive. Does that mean that the court can’t review decisions made with a crystal ball because it’s too mushy? I don’t know. Certainly courts are competent to make emergency decisions under FISA, the Foreign Intelligence Surveillance Act. The FISA Court meets in secret and authorizes wiretaps requested by the executive branch. Courts can do this. Courts can act in emergencies to review and check and balance what the executive is doing. That’s what our Constitution is all about.
DB: Congress is looking for some original documents about what’s going on here. The White Paper is sort of a restatement of National Security documents that we probably haven’t been able to see yet. What about the Geneva Conventions? It sort of throws that in the garbage.
MC: Well, it does because the Geneva Conventions define willful killing as a grave breach. And grave breaches are punishable as war crimes. So this also violates the Geneva Conventions. Although the White Paper says that they are going to follow the well-established principle of proportionality — proportionality means that an attack cannot be excessive in relation to the anticipated military advantage — I don’t see how they can actually put that into practice because the force is going to be excessive. When you see how they are using drones, they are taking out convoys, and they are killing civilians, large numbers of civilians. There’s another principle of international law called distinction, which requires that the attack be directed only at legitimate military targets. We know from the New York Times exposé that the kill list that Brennan brings to Obama to decide who he is going to take out without a trial — basically execute — can be used even if they don’t have a name, or if they are present in an area where there are suspicious “patterns of behavior.” These are known as signature strikes. That means that bombs are dropped on unidentified people who are in an area where suspicious activity is taking place. That goes even beyond targeted killings. Targeted killings are considered to be illegal. The UN Special Rapporteur on Extrajudicial Summary or Arbitrary Executions, Christof Heyns, expressed grave concerns about these targeted killings, saying that they may constitute war crimes. He called on the Obama administration to explain how its drone strikes comport with international law and to specify the bases for the decisions to kill rather than capture particular individuals.
The White Paper says that one of the requirements before they can take someone out is that capture is “infeasible.” As you go on and read this memo, infeasible begins to look like inconvenient. We have these very mushy terms, with no clear standards that comply with international law. Yet there is no oversight by any court, and Congress has no role either. So we don’t have checks and balances. Even the Authorization for the Use of Military Force (AUMF) that Congress passed a few days after 9/11 doesn’t authorize this. The AUMF allows the President to use force against groups and countries that had supported the 9/11 attacks. But when the Bush administration asked Congress for open-ended military authority “to deter and preempt any future acts of terrorism or aggression against the United States,” Congress specifically rejected that open-ended military authority. Congress has not authorized this, and it’s not clear whether Congress would authorize it. There are several congresspersons who are trying to get a hold of the actual documents that you have referred to, beyond this White Paper, which is the tip of the iceberg.
DB: That includes Ron Wyden who is on the Intelligence Committee and can’t get a hold of this. When one looks at this Obama policy and compares it to Bush, essentially Obama has chosen: Well, we’ll do a little less torture, or skip the torture, and we’ll just kill them.
MC: Obama has expanded these drone attacks far beyond what the Bush administration was doing. There are many thorny issues, such as indefinite detention, how detainees are treated, and under what circumstances they can be released. The Obama administration evidently feels that it’s cleaner and easier just to kill them. Then you don’t have to worry about bad publicity from housing them at Guantanamo, not giving them a fair trial, holding them indefinitely. This goes beyond the torture policy. Now I don’t want to say that killing with drones is worse than the illegal and outrageous invasions of Iraq and Afghanistan that the Bush administration began, in which thousands and thousands and thousands of people have been killed or seriously maimed. So I wouldn’t say that Obama is worse than Bush. But certainly Obama is following in the tradition of the Bush administration and John Yoo’s expansive view of executive power where whatever the President does is unreviewable.
DB: I would say they continue the process of destroying the Bill of Rights, the Constitution and the necessary checks and balances that restrain war, that the people depend on. We are out of time. Marjorie, thanks for being with us on Flashpoints.
The DoJ White Paper’s Confused Approach to Imminence (and Capture)
According to the White Paper (p. 6), a US citizen “who is located outside the United States and is an operational leader continually planning attacks against US persons or interests” cannot lawfully be killed unless, inter alia, “an informed, high-level official of the US government has determined that the targeted individual poses an imminent threat of attack against the United States.” Early criticism of the White Paper has focused on how it defines imminence. The ACLU’s Jameel Jaffer, for example, says that it “redefines the word imminence in a way that deprives the word of its ordinary meaning.” That’s actually something of an understatement; as I’ll discuss in this post, the White Paper’s entire approach to the concept of imminence is deeply confused — and deeply problematic from the standpoint of international law.
The first thing to note is that it’s not clear why the White Paper even discusses imminence. As I noted in my previous post, the White Paper’s central premise is that all targeted killings of “senior operational leaders” in “al-Qa’ida or its associated forces” take place in the context of a global non-international armed conflict (NIAC) and are thus all subject to the laws of war (IHL). The White Paper also takes the position that the laws of war apply to a U.S. citizen in the same way that they apply to a non-citizen; it specifically argues (p. 3) that because ”the military may constitutionally use force against a US citizen who is part of enemy forces,” the DoJ “does not believe that US citizenship would immunize a senior operational leader of al-Qa’ida or its associated forces from a use of force abroad.”
Although I reject the White Paper’s claim that the US is engaged in a global NIAC with “al-Qa’ida and its associated forces,” I have no problem with the idea that US citizenship does not affect the targetability of an individual who is otherwise a legitimate target under IHL. But why, then, discuss imminence at all? It is black-letter IHL that a legitimate target can be targeted at any time; it is not necessary to show that the target is an imminent threat, regardless of how imminence is defined. Given that the White Paper assumes both that all targeted killings of US citizens take place in armed conflict and that US citizenship does not affect targetability under IHL, it should consider whether a US citizen poses “an imminent threat of attack against the United States” — or against anything else — to be completely irrelevant.
So why does the White Paper graft an imminence requirement onto IHL? There are two possible explanations. The cynical one is simply politics. The DoJ doesn’t really believe imminence is required before a US citizen who is a member of al-Qa’ida or an associated force can be lawfully targeted, but it is worried that the American public would reject the idea that an “enemy” US citizen can be killed abroad at any time. So it has decided to endorse an imminence requirement that — as discussed below — provides no meaningful constraints on the use of lethal force against a US citizen. A cynical move, to be sure. But a smart one.
The more generous explanation is that the DoJ believes that imminence is required by IHL’s presumption of civilian status. Article 57(2) of the First Additional Protocol provides that “[t]hose who plan or decide upon an attack shall… [d]o everything feasible to verify that the objectives to be attacked are neither civilians nor civilian objects,” while Article 50(1) provides that if it is still unclear whether an individual is a legitimate target after all feasible precautions are taken, “that person shall be considered to be a civilian” who is immune from attack. IHL is notoriously vague concerning the precise quantum of evidence necessary to determine that an individual is a member of an organized armed group, so perhaps the DoJ believes that a showing of imminence is the minimum necessary to establish that a target is a member of al-Qa’ida or an associated force — at least, or perhaps especially, when the target is a US citizen.
That explanation has a nice ring to it, but it is difficult to accept. To begin with, it would still contradict the White Paper’s claim that US citizenship is irrelevant to the application of IHL. Nothing in IHL suggests that the standard of proof for membership in an organized armed group differs for citizens and non-citizens; indeed, such a citizen/non-citizen distinction would contradict IHL’s basic targeting premise, which is that the only relevant distinction is between civilians and non-civilians.
The generous explanation of the imminence requirement also suffers from a more important flaw: it is completely inconsistent with the White Paper’s insistence (p. 6) that a US citizen can be targeted only when “a capture operation would infeasible.” First, the capture requirement does not help establish whether a US citizen is, in fact, a member of al-Qa’ida or an associated force. Second, the capture requirement has no basis in IHL: as Article 41(2)(b) of AP I makes clear, unless a lawful target “clearly expresses an intention to surrender” — such as by yelling surrender or by raising his hands or a white flag — IHL imposes no capture obligation whatsoever on an attacker. That is an unforgiving rule, permitting the use of lethal force against a target who is unarmed, defenseless, running away, or even asleep. But it is a rule nonetheless.
We are left, then, with the cynical explanation. The imminence requirement and the capture requirement both come from international human rights law (IHRL), not from IHL. The US, however, categorically rejects the idea that IHRL applies to any of its targeted killings; as noted above, it considers itself to be in a global NIAC with al-Qa’ida and its associated forces. There is thus no non-political (i.e., legal) reason for the US to condition the use of lethal force agains a US citizen on the threat of an imminent attack and the impossibility of capture. The imminence requirement is all for show.
Finally, given that many scholars (including me) reject the US position that none of its targeted killings are subject to IHRL, it is worth noting that the US definition of imminence is significantly broader than the IHRL definition. I discuss that issue at length in my essay on signature strikes; see pp. 29-31. I will simply note here that at least one aspect of the US definition is clearly unacceptable from an IHRL perspective — namely, its acceptance of the idea that a “senior operational leader” in al-Qa’ida or an associated force can be considered an imminent threat even when there is no evidence that he is planning future attacks against the US. Here is what the White Paper says (p. 8):
[W]here the al-Qa’ida member in question has recently been involved in activities posing an imminent threat of violent attack against the United States, and there is no evidence suggesting that he has renounced or abandoned such activities, that member’s involvement in al-Qa’ida’s continuing terrorist campaign against the United States would support the conclusion that the member poses an imminent threat.
Even granting — as most scholars do — that IHRL’s imminence requirement is far from the picture of clarity, this standard is woefully overbroad. It not only relieves the US of the need to possess evidence that the “senior operational leader” in question intends to continue to attack the US, it actually shifts the burden of proof onto that individual to show that he is no longer a threat. (How he would actually do that is never addressed in the White Paper. Take an ad out in the New York Times?) That is simply unacceptable from an IHRL perspective; as the Human Rights Committee has specifically noted, states must “not use ‘targeted killings’ as a deterrent or punishment.”
Assassination Bureau: Justification Of U.S. Drones Killing A Travesty
The justification of targeted killings by the United States government is “a travesty” according to U.S. law, an analyst said.
U.S. senators are reportedly considering an idea to create a secret “assassination court” that would be charged with deciding if “suspects” can be assassinated by U.S. drone strikes.
“There is no way of justifying these killings and in fact they are assassinations,” Rick Rozoff, manager of the organization Stop The NATO International, told Press TV’s U.S. Desk on Saturday.
“This is what’s called targeted killing, but it’s not targeted. It’s mass killing,” he added.
There are estimates that since 2004 when the CIA started the drone warfare, between 4,500 and 5,000 people have been assassinated in Pakistan, Yemen, Somalia and Libya and Iraq, Rozoff said.
The notion of a secretive court deciding who gets killed by robots looming overhead anywhere on the planet strikes some as somewhat morbid.
Observers charge that the change would just be some “nominal court oversight” to the targeted killings, which at present is entirely in the hands of the executive branch.
- Fleets of Drones Descend on Africa
- Chilling Legal Memo From Obama DOJ Justifies Assassination of US Citizens
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