Barack Obama is about to find out exactly what it is like to be George W. Bush.
Over the past twelve months, the Obama administration has been ramping up a Bush era program of unmanned Predator and Reaper drones, targeting al Qaeda and enemy combatant insurgents in Iraq, Yemen, on the Afghan-Pakistan border as well as in Pakistan itself.
Since January 2009, nearly 500 kills have been credited by the Department of Defense to the drones, an achievement, it claims, that has saved innumerable American lives.
Yet the program during this time has been attacked by both the United Nations and international human rights groups as a violation of American law, international humanitarian law and national sovereignty. Briefs have been filed.
Philip Alston, the United Nations’ Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, stated six months ago that the strikes “might violate international humanitarian law and international human rights law.” On April 1, he presented his views again here.
Professor Mary Ellen O’Connell of the University of Notre Dame law school has called the drone program “unlawful killing,” and says it violates international law.
And the ACLU has put the program in its sights, suggesting that the drones may be a violation of the U.S. law against assassination, international humanitarian law as well as an abuse of national sovereignty.
The matter falls into a legal grey zone since international humanitarian law regulates continuous armed conflict between states with recognizable combatants—little of which is relevant to the U.S. fight against al Qaeda and its allies. On the other hand, international humanitarian law allows that a state engaged in armed conflict or in legitimate self-defense is not required to provide targets with notice or pursue legal process before using lethal force.
Notwithstanding this, U.S. procedures and practices for identifying targets have in fact been extremely precise with advanced technologies helping to make targeting more focused.
Do the drone attacks then constitute “assassination” which is prohibited under U.S. law?
According to State Department Legal Advisor and former Yale law School Dean, Harold Koh, they do not. At the 104th meeting of the American Society of International Law on March 25, he submitted his opinion that the current administration has comported itself well within the parameters of the principle of distinction, which requires that attacks be limited to military objectives alone avoiding civilian objects and the principle of proportionality, which prohibits attacks causing incidental loss of civilian life excessive in relation to the military advantage anticipated.
“Under domestic law, the use of lawful weapons systems – consistent with the applicable laws of war – for precision targeting of specific high-level belligerent leaders when acting in self-defense or during an armed conflict is not unlawful, and hence does not constitute ‘assassination’.”
Koh did not address the violation of sovereignty argument in his speech. Nevertheless it is clear that the CIA under Bush, and now apparently under Obama, reserves its rights to go after its enemies wherever they are. This policy is validated in U.S. law by the September 14, 2001 Congressional resolution Authorization for Use of Military Force which allowed the president to:
“use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons….”
This remains the undisputed policy of the United States, no matter what conflicts it involves with the sovereignty of other nations or whether it contravenes international law.
But that may not be sufficient for the likes of the ACLU.
“The public has a right to know whether the targeted killings being carried out in its name are consistent with international law and with the country’s interests and values,” said Jonathan Manes, a legal fellow with the ACLU National Security Project. “The Obama administration should disclose basic information about the program, including its legal basis and limits, and the civilian casualty toll thus far.”
It is somewhat perplexing to understand why the American Civil Liberties Union’s “National Security Project” is so concerned with this issue at all. One would think that an organization whose mandate is to protect American civil liberties would find itself ranging a little far afield when it seeks to protect Afghani, Pakistani and Yemeni civil liberties as well.
In fact the organization’s own mission statement says nothing about the civil liberties of peoples from distant countries. In its own words:
” The ACLU is our nation’s guardian of liberty, working daily in courts, legislatures and communities to defend and preserve the individual rights and liberties that the Constitution and laws of the United States guarantee everyone in this country.”
Hmm. Well if I have this right, since the ACLU is now concerned with the fundamental rights of not just Americans but other peoples, it might be right to conclude that the ACLU believes that everyone deserves American civil liberties and the ACLU will defend them, no matter where they live or what their level of belligerence towards this country.
Here we have yet another example of local human rights advocacy groups expressing a higher obligation to “humanity” that supercedes their commitment to the welfare and security of their own country. This philosophy underpinned the relentless seven year long legal assault on the Bush Administration’s national security policies and the attempts to shut down almost every measure employed by Bush over the course of that period to protect American lives.
Harold Koh himself must now be having second thoughts about his former comrades- in-arms. We should not forget that in 2004 he lacerated the Bush administration for its disregard of international law, which in his opinion, after 9/11, earned ” it a place along with North Korea and Iraq in the “axis of disobedience.” He also told a Senate hearing that the Bush administration had imposed “unnecessary, self-inflicted wounds, which have gravely diminished our global standing and damaged our reputation for respecting the rule of law.”
Now, of course, the tables are turned and it is Koh and a Democratic president who must face the firing squad of the U.N and the indefatigable NGOs who have their own ideas of how the United States should defend itself and prosecute war.
They are fast discovering that the notions of “global standing” and “the rule of law” are often in conflict with the necessities of defending this country. It should soon become to clear to them the war must be engaged not only against foreign insurgents who use hand propelled rocket launchers against our troops. It must also be fought on the domestic front with lawyers of civil rights organizations and NGOs for whom the words ” national security” are mere by-words for American torture and either the imprisonment or unlawful killing of innocent foreign nationals.