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Somehow I missed the Obama administration insisting that except for the KSM non-de-trial de-trial (Come on, you can give me that one, can’t you?), it’s come a long way from the Bush era:
Officials said Mohammed’s uncertain future should not obscure what they see as significant and aggressive changes in national security policy, including banning interrogation methods that the administration deemed torture, establishing interrogation units, using unmanned drones to kill hundreds of enemy fighters in Pakistan, and articulating a legal basis for using those drones.
Let’s put aside the interrogation stuff for a moment. On the drones, we’ve gotten the assertion that they’ve killed hundreds of enemy fighters in Pakistan. The New America Foundation’s tally of the drone strikes estimates that 30 percent of drone-induced casualties since 2004 are civilians. (Obama accelerated a program that the CIA began under Bush. If the Obama team is claiming credit, then the Bush team deserves its due.) Looking at the hatred and fear they generate in the tribal areas of Pakistan, the next generation of militants may in fact be the children of those slain by drones.
And the administration has not, in fact, articulated a legal basis for using the drones. In March, the State Department’s legal adviser gave a speech asserting that the strikes are legal, not demonstrating why they are. The closest that Harold Koh came to articulating his case was to say: The administration doesn’t intentionally kill civilians (“…attacks [are] limited to military objectives and that civilians or civilian objects shall not be the object of the attack…”); it tries to be proportionate (no “attacks that may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof”); and that in any event the Authorization to Use Military Force covers the strikes. (“These domestic and international legal authorities continue to this day.”)
Exactly nowhere in Koh’s speech do the criteria emerge for determining when the administration would cross into illegality in drone targeting. (Thirty percent civilian casualties? What about forty? What about fifty?) We do not know what legal justifications the Justice Department’s Office of Legal Counsel has developed about the drone program. In March, ACLU sued to acquire those and any other justifications; the administration is fighting the disclosure. (A disclosure of my own: My fiance — yes, I’m getting married — works for the ACLU’s Washington office.)
When we see those documents — documents the Obama administration does not want you to see — then we can say the Obama administration has articulated a legal basis for the drone strikes. Until then, all we can say is that Obama, a former constitutional-law professor, insists that we should take his word that his drone program is legal.
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Congratulations and I hope you have many years of happiness and excellent adventures.
As for the ACLU I recently made a contribution. In fact, I generally support the ACLU and specifically support their fight against torture.
There is some professional conflict of interest. Attackerman’s beat includes the Pentagon and CIA, institutions that are doing their very best to destroy the Bill of Rights. The ACLU tries to defend the Bill of Rights with much fewer resources.
The Administration should reveal the legal basis for drone strikes, but I’m not sure under what basis you can argue that the criteria for determining when to use a drone strike should be public information. Is there any precedent for forcing the release of OLC decisions? I know Obama chose to release certain ones relating to torture after he came into office, but I’m pretty sure they’re usually classified. Either way, it’s not clear that drone strikes are illegal.
Within Afghanistan, International Humanitarian Law (the laws of war) applies, so you have to look at proportionality.
There’s no hard line like 30% or 40%, the only limit is that the military objective achieved must be greater than the civilian loss of life. It’s pretty hard to prove that an attack isn’t proportional unless the purpose of the attack was just to kill civilians.
Outside of Afghanistan, some argue that IHL still applies since its a globalized war, but I don’t think that’s a strong argument. So under regular human rights law, is it illegal? No, since ICCPR and other human rights treaties are careful to specify jurisdiction. In other words, countries are only bound to follow those treaties within their effective jurisdiction (the wording varies by treaty, but they’re similar). And for reference, the European Court of Human Rights has in similar cases ruled that effective jurisdiction is more than simply occupation of a country, see Bankovic.
So that’s international law. Under domestic law, Koh rightly asserts that the AUMF is applicable. Because Al-Alwaki is an American citizen, that complicates things, so I hope his case is not thrown out due to lack of standing by his father.
Whether or not it’s the correct or moral policy is distinct from its legality.
Yeah, maybe my example got overly specific. Good points.
The precedent, I guess, is to sue for the disclosure of the OLC opinions. But of course the Obama DOJ could just release them, particularly if the administration is going to send Koh out there to make generalized remarks.