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Is the Obama administration's drone war legal? Why should we be concerned?

Kade Crockford,
Director, ACLU of Massachusetts Technology for Liberty Project
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December 4, 2012

This was originally posted on PrivacySOS.

Former Bush administration attorney John Bellinger, ACLU Center for Democracy Director Jameel Jaffer and WSJ Pentagon correspondent Julian Barnes appeared on NPR’s On Point program to discuss the legality of the Obama administration’s seemingly ever-expanding drone war.

“The most open secret in Washington is the CIA drone program. Although technically classified, it’s something the President has discussed, the administration has discussed,” Barnes said. The fake secrecy surrounding the drone campaign has stymied the ACLU’s efforts to get access to Obama administration documents about the strikes.

Jaffer has previously told the press that this fake secrecy is “absurd”:

It is preposterous. The assertion that this programme is a secret is nothing short of absurd. For more than two years, senior officials have been making claims about the programme both on the record and off. They’ve claimed that the programme is effective, lawful and closely supervised. If they can make these claims, there is no reason why they should not be required to respond to [FOIA] requests.

Among the important issues raised in the NPR discussion is the question of whether or not the United States’ actions in places like Yemen and Pakistan, where we have not declared a war, could backfire against the United States if other countries decide that they can strike anywhere at will, as long as they say that the targets are threatening their interests.

On that question, Julian Barnes was unequivocal: yes this is a concern, and that’s why the Obama administration is floating the concept of a “rule book” to govern the strikes:

“What the US does with its drone program will establish the rules, the customary international rules, over time, for the rest of the world….If you want to stop the Chinese or the Pakistanis…from having a targeted killing campaign that is not terribly precise…you need to establish clear rules” that make it illegal to target civilians.

But doing that isn’t as simple as writing a Rule Book with which to execute your Kill Lists. As I’ve written before, there is nothing to guarantee that other countries or future administrations will listen to the Obama administration’s so-called Rules. His actions matter, not his speeches or admonitions to other countries.

The question of blowback is also complicated for the Obama administration because of its so-called “signature strikes,” attacks on people the CIA or JSOC think may be terrorists because they behave in a certain way, even when the government doesn’t know the names or identities of the people it is killing. Violations of international law cannot be disappeared or obfuscated with a Rule Book, but they can set a very dangerous tone for the way that countries do business.

The ACLU’s Jaffer:

“The Obama administration is right to worry about how the power will be used by the next administration, but I think Americans ought to be worried about how the power is being used by this administration as well.”

You should listen to the program in full if you have time; it’s well worth it, if only to hear a former Bush administration lawyer chastise the Obama team for its aggressiveness, questionably legal policy making and secrecy.

“We’re pretty far out on a limb here as we engage in pretty edgy and aggressive theory…we don’t have a lot of other countries in the world saying ‘Yeah we agree with what the United States is doing,’ so that’s a pretty precarious place” for us to be, Bellinger said.

The Obama administration apparently continues to think that they have legal authority under [the post-9/11 authorization for use of military force]. Personally, I think and have been writing, that it is questionable, because that authorization allows use of force against the people who committed or planned or harbored those who committed or planned 9/11, and so 11 years later, it’s not at all clear that the drone strikes against you know, people in Pakistan or Yemen or Somalia, young men who were in their 20s, who twelve years ago might have been 8 or 9 years old, were in fact part of the same organization that planned 9/11. So, the Obama administration continues to say that they have that authority under congressional authorization, but I think it’s a fair question as to whether they really do. What we’re really seeing…[is] growing international outrage about whether drone strikes are lawful under international law. Are they infringing on the sovereignty of other countries when we drop drones in other countries? Do they violate principles of international human rights law to kill a particular individual?

That is not the ACLU speaking, it is a former Bush administration official, warning us about how the United States’ actions are setting a dangerous stage for the world, and pointing out the very tenuous legal footing on which the drone program rests.

As Bellinger observes, we don’t know whether or not any of the people the US has killed in its various drone campaigns were connected in any way to the 9/11 attacks, but things like “signature strikes” pretty much guarantee that many of the dead had nothing to with them.

Since the Obama administration won’t be honest with the public about how it makes decisions to kill absent due process, we are put in a similar position as we were when the Bush administration told us to trust that the people it locked up in GITMO were “the worst of the worst,” as Jaffer puts it. We don’t really know what’s going on. We later found out that those people were not the worst of the worst, and that many of them had been sold as bounty to US soldiers; they were locked up in a nightmare for being in the wrong place at the wrong time.

Many of the victims of US drone strikes were probably in the wrong place at the wrong time, too, but there is no second chance for them. They are dead.

At the very least, the Obama administration should come clean and tell us how it chooses its targets, and clearly spell out how it justifies the program under domestic and international law — not in leaked anonymous quotes to the New York Times, but in legal memos and government documents disclosed under the Freedom of Information Act.

Like former Bush administration official John Bellinger said:

“They haven’t explained who they are going after….What even I, having served eight years the last administration, don’t fully understand is why they can’t explain more after the fact, why the person was targeted, why they were killed so that the rest of the world can really judge, ‘Yes I agree, that senior al Qaeda official in Yemen who was planning an attack, and we got him in his bomb factory.'”

Why won’t the Obama administration tell us who it has killed in our names? What does it have to hide?

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