Human Rights Groups Challenge Obama’s Claimed Targeted Killing Authority & Secrecy
Ten human rights groups have sent a letter to President Barack Obama on “shared concerns” related to the “targeted killing” policies of his administration. The letter also makes recommendations the Obama administration can take to make policies accountable and transparent.
The organizations call for the public disclosure of “targeted killing standards and criteria.” They urge the administration to “ensure that US lethal force operations abroad comply with international law.” They request the administration “enable meaningful congressional oversight and judicial review” and also “ensure effective investigations, tracking and response to civilian harm.”
The letter is signed by the following organizations: American Civil Liberties Union, Amnesty International, Center for Human Rights & Global Justice, NYU School of Law, Center for Civilians in Conflict, Center for Constitutional Rights, Global Justice Clinic, NYU School of Law, Human Rights First, Human Rights Institute, Columbia Law School, Human Rights Watch and Open Society Foundations. And it is being sent to President Obama at the end of a week where the world found out critical details about a secret drone deal in Pakistan along with key information McClatchy reported, which demonstrates the Obama administration has lied or misrepresented who exactly is being targeted and killed by drone strikes.
Remarkably, those who signed the letter all support judicial review but not the creation of a drone assassination court, as a number of columns in past months have explored.
“We do not believe that accountability and transparency will be improved by recent proposals to establish a FISA-like court to sanction lethal targeting operations,” the letter reads. “On the contrary, a special targeted killing court would give a veneer of judicial review to decisions to launch lethal strikes without offering a meaningful check on executive power. Instead, we urge the administration to cease making broad claims of non-justiciability or political question, to prevent cases alleging human rights or constitutional violations from being heard on their merits.” In other words, stop utilizing “political question and immunity doctrines, Bivens special factors, and the state secrets privilege to obstruct litigation.”
The groups call for the disclosure of “legal constraints” on “targeted killing operations.” Particularly, they demand the release of Department of Justice, Central Intelligence Agency and Department of Defense memoranda on the administration’s interpretation of the law to be made public. They request the “counterterrorism manual reported to exist by the Washington Post on January 19, 2013, be released to the public with minimal redactions. They also urge the release of “legal criteria for identification of targets, including for placement on so-called ‘kill lists’ and for subsequent targeting, and criteria for so-called ‘personality strikes,’ ‘signature strikes’ or Terrorist Attack Disruption Strikes (TADS).
With regard to civilians who have been killed and harmed, the groups ask for public descriptions of any processes in place to prevent civilians from being impacted by operations. They also request the criteria for differentiating between a civilian and a “militant” or a “combatant.” And they urge the administration to “disclose government counts of deaths and injuries resulting from targeting operations (particularly those outside of Afghanistan) including counts of civilian casualties, deaths of ‘operational leaders’ or ‘high-value targets,’ and deaths of individuals categorized as ‘militants’ or ‘combatants.'”
The groups take particular issue with the reported practice of “signature strikes,” which are believed to involve the “observation of certain patterns of behavior and other “signatures.” It does not appear these strikes “require specific knowledge about an individual’s participation in hostilities or an imminent threat.” This completely defies international law and violates human rights as “individuals are entitled to a presumption of civilian status.” Signature strikes deny civilians this presumption, “leading to direct attacks on civilians and disproportionate civilian casualties.”
The human rights groups signed on to the letter question statements by Obama administration officials where they have suggested civilian casualties are “exceedingly rare.” Senator Dianne Feinstein said during CIA director John Brennan’s confirmation hearing that casualties were in the “single digits” each year. Yet, there does not appear to be much of a factual basis for such statements, especially since organizations tracking news reports of drone casualties have found that hundreds of civilians have died in the past years. The Obama administration is likely undercounting and/or overlooking civilians, who are being killed. (In fact, the recent journalism by McClatchy suggests the CIA and other government agencies are choosing to pretend the deaths of civilians never happened.)
Then, there are issues of international law. Whether one thinks the United States follows or respects international law or not, the Obama administration says it is adhering to international law and that opens it up to criticism along these lines because it is quite clear that “targeted killing” operations are not following international law.
As the groups highlight, the US government seems to operate under the presumption that they can target a person if he or she has an affiliation with a group that would make him or her “lawfully subject” to an attack. The US “can directly target only members of the armed forces of an enemy, military objectives, or civilians directly participating in hostilities,” the groups argue. “US standards should reflect a presumption that unidentified individuals are civilians with protection from direct attack, unless and for such time as they take a direct part in hostilities.”
Furthermore, the Obama administration operates under the framework that the US is in an “armed conflict with Al Qaeda and ‘associated forces.'” The “specific organizational features or conduct” that “would lead a group to be classified as an associated force” are not defined (although the administration says these forces are “co-belligerents with Al Qaeda in hostilities against the United States or its coalition partners”). This makes it so the administration’s targeting authority is expanded rather aggressively and even indefinitely.
The administration has also adopted a dubious “concept of imminence” to justify operations as being in “self-defense.”
John Brennan has implied that the “imminent threat” threshold “should be broadened in light of the modern-day capabilities, techniques, and technological innovations of terrorist organizations.” This and other statements by administration officials, and a leaked Department of Justice white paper regarding the legality of targeting a U.S. citizen, imply that the broadening of the term “imminent threat” could expand the situations in which lethal force would be justified based on a perceived danger that may be realized at an undefined point in the future; or based on a group’s generalized intent to use force against the United States, even if the U.S. government is not aware of that group’s planning toward a specific attack against the United States. These interpretations of imminence would be inconsistent with international law regarding resort to the use of force. [emphasis added]
The letter to Obama is being sent at the right time. Jonathan Landay reported on April 9 for McClatchy that intelligence reports “list killings of alleged Afghan insurgents whose organization wasn’t on the US list of terrorist groups at the time of the 9/11 strikes; of suspected members of a Pakistani extremist group that didn’t exist at the time of 9/11; and of unidentified individuals described as ‘other militants’ and ‘foreign fighters.'”
In Pakistan, according to Mark Mazzetti of the New York Times, the CIA killed Nek Muhammad in 2004. He was an “enemy of the state” to the Pakistan government and the operation was conducted so the CIA could begin to go after US “enemies” in Pakistan. (In a CNN interview, former Pakistani President Pervez Musharraf confirmed this secret drone deal existed.)
What this makes clear is that there are not just civilians being killed and then alleged Al Qaeda militants being killed but also militants or tribesmen, who may be engaged in violent activities in countries but are not individuals the US has any business bombing because they have no intention to attack the United States.
Finally, the biggest issue, which goes unaddressed in the letter, may be how the increased use of “targeted killing” operations replaced CIA torture or “enhanced interrogations” of detainees.
Mazzetti’s recent report highlights how CIA inspector general, John L. Helgerson, issued a report noting that there would be “serious long-term political and legal challenges” because of the brutality of the CIA’s detention and interrogation program. The CIA opted to make a shift to using “armed drones and targeted killings” instead. Such operations weren’t as “dirty” as interrogations. “Targeted killings were cheered by Republicans and Democrats alike, and using drones flown by pilots who were stationed thousands of miles away made the whole strategy seem risk-free.”
The array of human rights issues created by drone assassinations are a result of a major shift that could be a new normal in government. Not only do these operations indicate an escalation in the militarization of the CIA but they also show an adept sense of what can be devised so agencies in government have the maximum ability to carry out operations in secret and without risk of political or legal liability.
That is a key obstacle human rights groups face. Those in the CIA and the wider Executive Branch have been playing a game to keep the power claimed to kill individuals without charge or trial from being constrained by what civil liberties and human rights groups recommend. They have tried to stay one step ahead of critics so control can be maintained and they can get away with carrying out operations on their terms, without any checks and very, very minimal requirements to adhere to law.