February 12, 2013
The Senate Intelligence Committee hearing on John Brennan’s nomination for CIA director has intensified opposition to CIA-directed drone strikes in Pakistan, Yemen, and Somalia.
Drone strikes have dramatically increased under the Obama administration. As of September 2012, Obama has authorized 238 drone strikes in Pakistan, six times more than during President George W. Bush’s eight years in office, resulting in between 1,494 and 2,618 estimated deaths with only about 13 percent of them of a militant leader. The remainder of the deaths were “collateral damage,” seemingly acceptable to the Obama administration.
Drones are unmanned aerial vehicles either controlled from the ground or increasingly, autonomously following a pre-programmed mission. Unlike manned aircraft they can stay aloft for many hours. The Zephyr, for example, a British drone under development, broke the world record by flying over 82 hours nonstop. Also, Drones are much cheaper than military aircraft and, because they are flown remotely, there is no danger to a flight crew.
In September 2011, a drone strike in Yemen killed Anwar al-Awlaki, a militant cleric with al-Qaeda, and Samir Khan, an accused al-Qaeda propagandist. Both men were American citizens and had not been indicted or charged with any crime. In October 2011, a drone strike killed al-Awlaki’s son Abdulrahman. According to The Bureau of Investigative Journalism , drone strikes in Yemen have killed between 72 and 178 civilians, including as many as 37 children. Between 2004 and 2013, CIA drone strikes in Pakistan have killed 473 to 893 civilians, including 176 children, and between 2007-2013, drone strikes in Somalia have killed 11 to 57 civilians, including 1 to 3 children.
In addition to the death and injury caused by drone strikes, a Stanford/NYU Report found that drones hovering twenty-four hours a day over communities in northwest Pakistan, striking homes, vehicles, and public spaces without warning, terrorizes men, women, and children, giving rise to anxiety and psychological trauma among civilian communities. Drone strikes are making the U.S. few friends and provide a recruitment tool for Taliban and al-Qaeda.
These killings, of course, raise the question of whether the U.S. government has the power to kill Americans who have not been indicted or charged with any crimes. It also raises the larger question as to whether the U.S. has the legal authority to target for assassination any non-American.
In June 2012, members of the Senate Intelligence Committee were given an undated confidential “Department of Justice White Paper” entitled “Lawfulness of a Lethal Operation Directed Against a U.S. Citizen who is a Senior Operational Leader of Al Qa’ida or An Associated Force.” This White Paper was recently obtained by MSNBC. The White Paper is a strained legal justification for targeting for assassination Americans abroad. It sets out a three-prong test: First, the suspect must be an imminent threat. Secondly, capture of the target must be “infeasible.” And thirdly, the strike must be conducted according to “law of war principles.” According to the White Paper, U.S. officials may consider whether an attempted capture of a suspect would pose an “undue risk” to U.S. personnel involved in such an operation. If so, U.S. officials could determine that the capture operation of the targeted American would not be feasible, making it lawful for the U.S. government to order a killing instead, the White Paper concludes.
But as the ACLU points out, “This sweeping authority is said to exist even if the threat presented isn’t imminent in any ordinary sense of that word, even if the target has never been charged with a crime or informed of the allegations against him, and even if the target is not located anywhere near an actual battlefield. The white paper purports to recognize some limits on the authority it sets out, but the limits are so vague and elastic that they will be easily manipulated.“ Basically, what the government is saying is that, “it has the right to carry out the extrajudicial killing of an American citizen. … It recognizes some limits on the authority it sets out, but the limits are elastic and vaguely defined, and it’s easy to see how they could be manipulated.” In particular, the ACLU concludes, the White Paper “redefines the word imminence in a way that deprives the word of its ordinary meaning.”
According to the White paper, the government has the authority to carry out targeted killings of U.S. citizens without presenting evidence to a judge before the fact or after, and indeed without even acknowledging to the courts or to the public that the authority has been exercised. Without saying so explicitly, the government claims the authority to kill terrorism suspects, including Americans, in secret.
At the February 7, 2013, Senate Intelligence Committee hearing, CIA Director-designate John Brennan strongly defended attacks by unmanned drones, claiming that such strikes are used only against targets planning to carry out attacks against the U.S, never in retribution for an earlier one, including Americans. Mr. Brennan is playing fast and loose with the facts. Clearly, if Brennan becomes CIA Director, the drone strikes will continue. And Congress seems unlikely to stop these drone strikes. That puts the ball in Obama’s court.
Obama must stop these extrajudicial targeted assassinations. Obama cannot serve as judge, jury and executioner. These assassinations are not only illegal; they create a dangerous precedent, which could be used by others to justify targeted killings of U.S. leaders.