Sunday, April 11

Koh silent about Obama decision to let Pakistan choose targets for U.S. drones

I want to be clear that the issue under discussion in this post has nothing to do with debates about the effectiveness of drone warfare. (Also called UAV or remote piloted aircraft -- RPA -- warfare.)

Nor do I address the tortured argument that the U.S. must target the Pakistan regime's enemies to prevent Pakistan from becoming a failed state.

And I have nothing to say about the legal and moral questions regarding government-sponsored assassinations. I'm not talking about assassins in the pay of the U.S. pussyfooting around and popping off enemies of the state.

I'm talking about the U.S. putting assassins in the service of Pakistan's monstrous regime, which has a history of war crimes and ongoing human rights abuses; a history of duplicity in its dealings with the White House and Congress; and a history of murdering ISAF troops in Afghanistan and supporting terrorist organizations, including al Qaeda, that are fighting ISAF troops.

From a March 26, 2009 report for The Wall Street Journal:
U.S. and Pakistani intelligence officials are drawing up a fresh list of terrorist targets for Predator drone strikes along the Pakistan-Afghanistan border, part of a U.S. review of the drone program, according to officials involved.

Pakistani officials are seeking to broaden the scope of the program to target extremists who have carried out attacks against Pakistanis, a move they say could win domestic support. The Obama administration is weighing the effectiveness of the program against the risk that its unpopularity weakens an important ally.

Underlining the fragility of the situation, the U.S. believes Pakistan's top intelligence agency is directly supporting the Taliban and other militants in Afghanistan, even as the U.S. targets those groups, says a person close to the deliberations.
From a October 21, 2009 New Yorker interview:
NEW YORKER: What does Pakistan think of the drones?

JANE MAYER: Originally, the Pakistani people’s reaction to the U.S. drone strikes in their country was incredibly negative. Pakistanis rose up and complained that the program violated their sovereignty. So, to obtain Pakistani support—or at least the support of the Zardari government—the Obama Administration quietly decided last March to allow the Pakistani government to nominate some of its own targets. The U.S. has been and is involved in killing not just Al Qaeda figures, but Pakistani targets—people like Taliban leader Beitullah Mehsud who are enemies of the Pakistani state.

NEW YORKER: Are there any safeguards that prevent the U.S. from carrying out political vendettas for top Pakistani officials?

MAYER: Well, the problem with this program is that it’s invisible; I would guess there must be all kinds of legal safeguards, and lawyers at the C.I.A. are discussing who we can kill and who we can’t, but none of that is available to the American people. It’s quite a contrast with the armed forces, because the use of lethal force in the military is a transparent process. There are after-action reports, and there’s a very obvious chain of command. We know where the responsibility runs, straight on up to the top of the government. This system keeps checks on abuses of power. There is no such transparency at the C.I.A.
It sounds like a script for a Jason Borne film: Borne discovers the U.S. Central Intelligence Agency secretly assassinates a repressive regime's enemies in hopes this will placate the regime. But the truth in this case is stranger than fiction.

The CIA is carrying out just such a program for the Islamic Republic of Pakistan -- but instead of a rogue unit doing this in secret the agency is acting on the express order of the President of United States. And while the order was never announced by the White House it is not a secret -- or if it was, it was 'leaked.'

And instead of a CIA-brainwashed assassin making the shocking discovery, we have a famous American former war correspondent and foreign correspondent, The Wall Street Journal's first female White House correspondent, twice nominated for the Pulitzer Prize for her investigative reports, plopping out the news in the staid New Yorker, in an article about the ethical and legal ramifications of drone warfare.

Jane Mayer, who is now a staff writer for The New Yorker, is also the author of the critically acclaimed The Dark Side (2008), which exhaustively examines the CIA's interrogation program. Her professional reputation is so sterling that she has no trouble getting access to highly placed sources in the U.S. military, civilian government, and well-known experts. So when she writes up an investigative piece on defense matters you may trust that military/intel communities on both sides of the Atlantic take notice.

Yet with all that, and despite The New Yorker giving the drone article a big plug by conducting an interview about it with Mayer -- and expressly mentioning the CIA's "unannounced" assassination program for Pakistan's government -- the impact of the news about the program has been the proverbial sound of a tree crashing in an uninhabited forest. That is, except in Pakistan, where Mayer's article made headlines at Dawn, Pakistan's leading English-language newspaper:

WASHINGTON: The Obama administration quietly decided last March to allow Pakistan to choose some of its own targets for drone attacks, according to the New Yorker, a prestigious US magazine.

Earlier last week, the magazine published a piece on the use of unmanned aircraft to target Al Qaeda and Taliban suspects in Fata ["Federally Administered Tribal Areas"]. On Sunday, its author Jane Mayer gave an online interview to the readers, telling them that the Obama administration agreed to allow Pakistanis to select targets to calm down Islamabad’s protests over the drone attacks.

The change in US policy led to the killing of Pakistani Taliban leader Baitullah Mehsud in August. [...]
During the past year the drone strikes in Pakistan have come under increasing scrutiny in the United States and in international circles. Both critics and defenders of the armed drone attacks urgently asked President Barack Obama to clarify the legalities pertaining to the use of drones for 'targeted killing' (a sterile term for assassination) in a foreign country.

(The use of the armed drone program in Pakistan and Afghanistan also has its critics in the U.S. military particularly among the COIN faction, which sees the strikes as working against the COIN 'population-centric' approach to counterinsurgency. See Mayers' New Yorker article for details.)

On March 16 the American Civil Liberties Union (ACLU) filed a lawsuit against the US departments of defense, justice, and state, in the effort to get more information about the legal justification for the drone strikes and how the targets are chosen. This, after the ACLU had been stonewalled in their attempts to obtain the information through routine channels.

On March 25, partly in response to the controversy about U.S. drone warfare and partly to answer the ACLU lawsuit, the state department's chief legal counsel, Harold Koh, gave a speech defending the practice. The speech, a keynote address to the American Society of International Law, was also explicitly meant to serve as the Obama Administration's reply to critics of the drone program. While noting he wasn't giving a detailed legal opinion Koh observed in part:
[I]t is the considered view of this administration -- and it has certainly been my experience during my time as legal adviser -- that U.S. targeting practices, including lethal operations conducted with the use of unmanned aerial vehicles, comply with all applicable law, including the laws of war.”
The speech was greeted with relief by defenders of the drone program. Human rights organizations and legal scholars, notably the U.N.'s Special Rapporteur on Extrajudicial Killings, Philip Alston, were more circumspect. (1)

And yet the only critic I could find who mentioned Koh's failure to address the staggering issue of the CIA assassinating people chosen by the Pakistan military was Chris Rogers, a human rights lawyer working for the Campaign for Innocent Victims in Conflict, and he did so only in passing and without mentioning Barack Obama's role. Writing on April 2 for the Huffington Post he observed:
[...] Nor did [Koh] indicate whether or how the U.S. assesses civilian casualties and ensures proportionality is respected. But a number of recent reports are cause for concern, such as the addition of Afghan drug lords to target lists and agreements to target individuals nominated by Pakistani officials in order to ensure their continued support for the program.[...]
I thank Mr Rogers for at least raising the issue of a foreign government choosing people that the CIA assassinates. But the "number of recent reports" he linked to was just Jane Mayers' investigative report for the New Yorker! The report, along with the New Yorker's interview with Mayer about it, contains the only specific mention I've found so far in the news media about Obama's "unannounced" decision to allow the Pakistan military to choose targets for CIA drone strikes.

The situation veers perilously close to The Twilight Zone when one considers the date of Mayers' interview and report: October 21 and 26, 2009 respectively. That was more than six months ago! Since then there's been an unprecedented number of drone strikes in Pakistan, even for the Obama administration, which has overseen more strikes in Pakistan during its first year than the Bush administration oversaw during its two terms.

It's not as if the stepped-up strikes have gone unnoticed on the Left. Even Code Pink , ostensibly staunch Obama supporters, lodged protests. But again, with the exception of the Huffington Post featuring Chris Rogers' op-ed, the protests have gone nowhere near the issue of the U.S. allowing Pakistan's regime to choose some of the targets for the CIA drone operators. The question is why the Left has been silent on this issue.

The same question can be directed at the Right. One would think that right wingers, who sit up nights trying to figure ways to impeach Barack Obama, would have seized on the issue. But no. Silence from the Right. Silence from all quarters including the news media.

Six days after Koh's speech the barrage of drone attacks in Pakistan suddenly stopped; the last attack was on March 30 according to Long War Journal. The halt might simply be a temporary suspension for want of targets. Or it could be Obama recalibrating in the face of the growing outcry about drone warfare in Pakistan, or because of tactical advice from Generals Petraeus and McChrystal.

Yet even if the strikes are outright abandoned in Pakistan, there would still be the issue of a U.S. President who was so desperate to placate a foreign government that he turned the CIA into a Renta-Assassin. And with no way of learning for certain whether the targets chosen by the government were actually terrorists. This issue should not go unexamined by the American public.

1) From Jim Lobe's April 2 report for Inter Press Services:
"We are encouraged that the administration has taken the legality surrounding drone strikes seriously," said Jonathan Manes of the American Civil Liberties Union (ACLU). "While this was an important and positive first step, a number of controversial questions were left unanswered."

"We still don't know what criteria the government uses to determine that a civilian is acting like a fighter, and can therefore be killed, and... whether there are any geographical limits on where drone strikes can be used to target and kill individuals," he told IPS.

"He didn't really say anything that we took issue with," said Tom Malinowski, the Washington director of Human Rights Watch (HRW), who also complained about the lack of details.

"But it still leaves unanswered the question of how far the war paradigm he's talking about extends. Will it extend beyond, say, ungoverned areas of Pakistan, Somalia and Yemen? Because you don't want to leave a legal theory out there that could be exploited by a country like Russia or China to knock off its political enemies on the streets of a foreign city," he added.


The weapon itself "is one of the least problematic from a civilian-protection standpoint, because drones can hover over their targets and observe whether civilians are present before delivering a payload, and because they carry relatively small and precisely guided munitions," noted Malinowski.

"The question is a legal one: under what circumstances can you use lethal force at all? Our view has always been that it should be limited to zones of active armed conflict where normal arrest operations are not feasible."

A related question involves who may be targeted. While many authorities insist lethal force can be used under the laws of war against those who are actively participating in armed conflict, the U.S. has used defined participation in very broad terms, including membership in - or even financial support of - an armed group.

In his remarks to the American Society for International Law, Koh, who was one of the harshest and most outspoken critics of the Bush administration's legal tactics in its "global war on terror", acknowledged some of these concerns, noting that his speech "is obviously not the occasion for a detailed legal opinion."

"(W)hether a particular individual will be targeted in a particular location will depend upon considerations specific to each case, including those related to the imminence of the threat, the sovereignty of the other states involved, and the willingness and ability of those states to suppress the threat the target poses," he said.

Koh added that Washington will ensure the application of the principles of "distinction" and "proportionality" in the laws of war.

While noting criticism that the use of lethal force against some individuals far removed from the battlefield could amount to an "unlawful extrajudicial killing", he insisted that "a state that is engaged in an armed conflict or in legitimate self-defence is not required to provide targets with legal process before the state may use lethal force."

"Our procedures and practices for identifying lawful targets are extremely robust, and advanced technologies have helped to make our targeting even more precise," he said.

Alston, the U.N. rapporteur, was far from satisfied with these assurances, however, calling Koh's statement "evasive".

He "was essentially arguing that 'You've got to trust us. I've looked at this very carefully. I'm very sensitive to these issues. And all is well,'" he told an interviewer on 'Democracy Now' Thursday [April 1].

"The speech did not provide essential information about the drone/targeted killing programme, including the number and rate of civilian casualties, and the internal oversight and controls on targeted killing, especially within the CIA," said Manes of the ACLU, which has filed a lawsuit to acquire that information.

Tom Parker of Amnesty International was more scathing about Koh's position, suggesting that it was one more concession -- along with indefinite detention and special military tribunals for suspected terrorists -- to the framework created by Bush's "global war on terror". [...]

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