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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