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Published on Portside (https://portside.org)
US Targeted
Killing Rules Conflate Legality and Politics
Marjorie Cohn
Monday, August 15, 2016
Truthout
In January
2013, President Barack Obama promised to make the rules for the United States'
targeted killing program "more transparent to the American people and the
world" because "in our democracy, no one should just take my word for
it that we're doing things the right way."
Three and a
half years later, a Freedom of Information Act (FOIA) request by the ACLU and
resulting court order finally forced the administration to make public the
Presidential Policy Guidance regarding the program. But much of it is redacted,
or blacked out. That is the opposite of transparent.
The 18-page
Presidential Policy Guidance document purports to outline procedures for the
use of lethal force in locations outside "areas of active
hostilities." In other words, it does not cover Iraq, Afghanistan and
Syria. It does cover Pakistan, Yemen, Somalia and Libya (although now that the
Obama administration is officially bombing Libya, it might now include that
country as an "area of active hostilities").
Several
layers of bureaucracy are required to approve the targeting of individuals.
Although the document gives lip service to the law, it skirts the legal
requirements for the use of force. It appears to elevate political and policy
considerations above the law.
Presidential
Policy Guidance and Legal Requirements
The
document states that "international legal principles, including respect
for a state's sovereignty and the laws of war, impose important constraints on
ability of the United States to act unilaterally." That means the United
States must comply with the UN Charter, which allows the use of military force
only in self-defense after an armed attack by another country, and with
approval by the Security Council.
But none of
the countries where people are targeted, including Iraq, Afghanistan or Syria,
has attacked the United States or another UN member nation. Under international
law, the 9/11 attacks constituted a crime against humanity, not an armed attack
by another state.
The
Presidential Policy Guidance would sanction targeting a person who poses a
"continuing, imminent threat," not just to "U.S. persons,"
but also to "another country's persons." A 2011 Department of Justice
(DOJ) white paper, leaked in 2013, said that a US citizen can be killed even
when there is no "clear evidence that a specific attack on U.S. persons
and interests will take place in the immediate future." This makes a mockery
of the "imminence" requirement. The administration presumably sets an
even lower bar for non-citizens.
There must
also be "near certainty that an identified HVT [high-value terrorist] or
other lawful terrorist target" is present before using lethal force
against him. Yet the administration engages in "signature strikes"
that don't necessarily target individuals but rather target all males of
military age present in an area of suspicious activity. And the Presidential
Policy Guidance does not define "high-value terrorist."
In
addition, there must be "near certainty that non-combatants [civilians]
will not be injured or killed." Given the large number of civilian
casualties from drone strikes and other targeted killings, the administration
does not appear to be complying with this requirement either.
The
Presidential Policy Guidance says "the United States prioritizes, as a
matter of policy, the capture of terrorist suspects as a preferred option over
lethal action" because capture offers the "best opportunity for
meaningful intelligence... and disruption of terrorist threats." Thus,
there must be "an assessment that capture is not feasible at the time of
the operation." The document does not define "feasible."
It also
specifies, "In no event will additional detainees be brought to the
detention facilities at the Guantanamo Bay Naval Base." Since the Obama
administration rarely sends people to US courts for terrorism trials, its
default action is apparently killing rather than capture.
According
to the Presidential Policy Guidance, there must also be assessments that
"the relevant governmental authorities... cannot or will not effectively
address the threat to U.S. persons" and "no other reasonable
alternatives to lethal action exist to effectively address the threat to U.S.
persons." The document contains no definition of "threat to U.S.
persons." And how would there be a threat if US persons were not present
in countries where they do not belong?
The list of
minimum criteria to be considered in the "individual profile" of each
suspect is totally redacted, leaving us to guess at the requirements for
targeting an individual.
In order to
target a "U.S. person," the operation must be "consistent with
the laws and Constitution of the United States." But the targeting of all
persons, whether "U.S. persons" or not, must comply with US law.
Ratified treaties constitute part of US law under the Supremacy of the
Constitution. They include the UN Charter and the International Covenant on
Civil and Political Rights. The covenant, which protects the right to life,
mandates due process -- or fair trial -- before taking a life. The rules set
forth in the Presidential Policy Guidance do not comply with due process.
Moreover,
the Presidential Policy Guidance allows for waivers from the rules in
"extraordinary circumstances" or "extraordinary cases,"
both left undefined. Nothing in the UN Charter permits a waiver of the use of
force provisions in "extraordinary" cases or circumstances.
Authorization
for the Use of Military Force
The
administration released four additional documents along with the Presidential
Policy Guidance. One of them, titled Report on Process for Determining Targets
of Lethal or Capture Operations, states that "the principal domestic legal
basis for [Department of Defense] direct action operations is the 2001
Authorization for the Use of Military Force."
The 2001
Authorization allows the president to use "force against those nations,
organizations, or persons he determines planned, authorized, committed, or aided
the terrorist attacks that occurred on September 11, 2001, or harbored such
organizations or persons."
But that
authorization is limited to those connected with the 9/11 attacks. Islamic
State did not even exist on 9/11. And when George W. Bush asked for authority
"to deter and preempt any future acts of terrorism or aggression against
the United States," Congress refused. Thus, the 2001 Authorization does
not accord with Obama's targeted killings.
More
Transparency or Politics as Usual?
It wasn't
until July 2016 that the administration publicized its numbers of civilian
deaths from targeted killings "outside areas of active hostilities."
The administration's figures were vastly lower than those documented by the
leading non-governmental organizations. And besides omitting figures for Iraq,
Afghanistan and Syria, they left out the locations, dates, numbers and names of
civilians and combatants that would enable us to accurately assess their
claims.
The
Presidential Policy Guidance states that officials considering an operational
plan proposed by the US military or the CIA shall evaluate "the broader
regional and international political interests," the "policy
objectives," and the counter-terrorism strategy of the United States.
Political and policy considerations apparently trump compliance with the law.
Under the
guise of increased transparency, the administration has revealed partial
information about its targeted killing program. But much remains classified.
And what we do know does not comply with the law.
Marjorie
Cohn is professor emerita at Thomas Jefferson School of Law, former president
of the National Lawyers Guild and on the advisory board of Veterans for Peace. Her
most recent book is Drones and Targeted Killing: Legal, Moral, and Geopolitical
Issues. Visit her website: MarjorieCohn.com [2]. Follow
her on Twitter: @marjoriecohn [3].
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Source URL: https://portside.org/2016-08-22/us-targeted-killing-rules-conflate-legality-and-politics
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