At a conference organized by the American Civil Liberties Union (ACLU) in Geneva, Switzerland, Christof Heyns, a UN Special Rapporteur on Extrajudicial Killings, Summary or Arbitrary Executions, strongly condemned the United States’ targeted killing program and the country’s use of drones to carry out extrajudicial executions abroad. Heyns told attendees the program threatens fifty years of international law and, according to The Guardian, some of the drone attacks the United States has carried out likely were “war crimes.”
Heyns reportedly said, ”Are we to accept major changes to the international legal system which has been in existence since World War II and survived nuclear threats?” He made the slippery slope argument, saying if “some states” happen to “find targeted killings immensely attractive” today, “others may do so in the future.” The use of targeted killing weakens the rule of law. Acknowledging that killings would be “lawful” in “armed conflict,” he said many of the targeted killings are taking place away from battlefields where war has not been declared. And, as The Guardian story notes, he “ridiculed the US suggestion that targeted UAV strikes on al-Qaeda or allied groups were a legitimate response to the 9/11 attacks,” saying, “It’s difficult to see how any killings carried out in 2012 can be justified as in response to [events] in 2001…Some states seem to want to invent new laws to justify new practices.”
The UN investigator also mentioned reports indicating “secondary drone strikes on rescuers” helping injured after “initial” drone attacks were occurring. If so, these attacks would be “war crimes.” What he was referring to was reporting done by the UK-based Bureau of Investigative Journalism (TBIJ). In February, TBIJ published analysis suggesting the Central Intelligence Agency (CIA) utilized a tactic that involved launching drone strikes against rescuers and funeral goers.
A “second UN rapporteur, Ben Emmerson QC, who monitors counter-terrorism, announced he would be prioritising inquiries into drone strikes” and “Pakistan’s ambassador to the UN in Geneva, Zamir Akram, who called for international legal action to halt the “totally counterproductive attacks” by the US in his country” were also in attendance. Emmerson, The Guardian reports, asserted “protection of the right to life” meant all countries had duty and obligation to setup “independent inquiries” into drone killings. Akram claimed over a thousand civilians had been killed because of US drone attacks and stated, “We find the use of drones to be totally counterproductive in terms of succeeding in the war against terror. It leads to greater levels of terror rather than reducing them.”
The conference occurred a day after a statement was delivered by the ACLU’s National Security Project Director Hina Shamsi to the UN Human Rights Council. Shamsi charged, “The United States has cobbled together its own legal framework for targeted killing, with standards that are far less stringent than the law allows. Senior U.S. government officials have claimed self-defense and law of war authority to target and kill suspected terrorists in states with which and in which the United States is not at war, based on largely secret legal criteria, entirely secret evidence, and a secret process.” She wholly condemned the US government secrecy around the program.
Less than twenty-four hours later, the US government filed a brief defending this secrecy and asking for a judge to dismiss a Freedom of Information Act (FOIA) lawsuit filed by the ACLU for records on the targeted killing program:
The consolidated FOIA requests at issue here seek multiple categories of records relating to the alleged U.S. government use of targeted lethal force against U.S. citizens and other persons associated with al-Qaida and other terrorist groups. The issues surrounding the U.S. government’s use of lethal force are undoubtedly of the utmost public concern. And for that reason, officials at the highest levels of the Executive Branch have carefully analyzed the various interests at stake. One result of that analysis has been a series of speeches by the State Department Legal Adviser, by the Department of Defense General Counsel, by the Attorney General, and by the Assistant to the President for Homeland Security and Counterterrorism that have set forth for the American people the legal analysis and process involved in the determination whether to use lethal force.
At the same time, the Executive Branch deliberations reflect the reality that plaintiffs’ requests implicate highly sensitive records. For example, to enumerate and describe the records responsive to the FOIA requests would tend to reveal whether or not the Central Intelligence Agency (“CIA”) is authorized to, and does in fact, directly participate in targeted lethal operations, and whether or not the U.S. government possesses specific intelligence information about particular individuals. Yet, Congress has made the judgment in the CIA Act and the National Security Act that information concerning such intelligence sources and methods should be exempt from public disclosure.
In other words, we, the United States government, will tell the public what we think they need to know about the program and anything we don’t make public is information that could invite scrutiny and further complicate our ability to wage a global war on terrorists.
The ACLU has been working for months to force the disclosure of this information so the public can have key questions about the US government’s use of drones answered. The ACLU wants this information disclosed so answers on whether the US Constitution legally authorizes the President to target individuals for killing without judicial process. They have sought legal memos that provide justification for the flouting of humanitarian and human rights law that has been escalating in the past couple of years of the Obama presidency. And, not only are civil liberties organizations like the ACLU demanding this information, members of Congress are also demanding to see the legal justification for drone strikes as well.
Rather than let organizations like the ACLU and the wider public use FOIA to get answers to these key questions, the administration has chosen to shrewdly try to satisfy those critical of US drone operations and policy by engaging in cheap attempts at transparency, which involve trotting out senior officials who downplay or outright dismiss concerns about the program. They have opted to propagandize the issue with statements that barely answer questions from concerned citizens and human rights and civil liberties organizations.
The propaganda and secrecy is not just appalling, but it also makes a mockery of the Freedom of Information Act. As the ACLU declared in one of its filings in the lawsuit, the CIA is being allowed to “deny the existence of the drone program” as the Obama administration “carries on a propagandistic campaign of officially sanctioned leaks.” The filing added:
For more than two years now, senior government officials have freely disclosed information about the CIA’s drone program, both on the record and off, while the CIA has insisted to this Court and others that the program cannot be discussed, or even acknowledged, without jeopardizing national security. One consequence is that the public’s understanding of the effectiveness, morality, and legality of the government’s bureaucratized killing program comes solely from the government’s own selective, self-serving, and unverifiable representations concerning it. This is not simply lamentable but dangerous, and, again, it is precisely what the FOIA was designed to prevent.
However, members of the Obama administration do not care what effect their actions have on the ability of citizens to access information. They think it is entirely reasonable to have officials interviewed by news correspondents like Daniel Klaidman, who recently published the book Kill or Capture that highlights the CIA role in drone strikes, while at the same time arguing to a judge that they should not have to confirm or deny the existence of a CIA program.
That is how blatant their disregard is for transparency and openness in government. And they wouldn’t engage in this conduct if they didn’t think they could induce a judge to rule in their favor by hyping the threat to national security that releasing this information would pose. A District of Columbia District Court judge, Rosemary M. Collyer, already issued a summary judgment in favor of the CIA in September 2011 allowing them to get away with not confirming or denying the existence of a targeted killing program. Now, much on America’s use of drones has become public since then, but that does not mean any judge will force the government to reveal more. National security interests can persuade a judge to rule in favor of the US government and ensure just about anything remains concealed.
Here’s Hina Shamsi delivering her statement before the UN Human Rights Council: