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Beyond the Drone Debate: Should US Military and CIA Be Judge, Jury and Executioner?

Public debate on drones has centered on the method of targeted killing rather than whether assassination is legal, moral or effective policy.

Drone strikes and extrajudicial killings are part of a larger system of permanent war that has existed for generations in the United States and shows no sign of abating. (Image: Predator drone via Shutterstock)

In late April, it was revealed that during a January drone strike in Pakistan, the United States accidentally killed two Western hostages held by al-Qaeda. The hostages were American aid worker Warren Weinstein, who was kidnapped by al-Qaeda in 2011, and an Italian named Giovanni Lo Porto, kidnapped in 2012. The killings momentarily reignited discussion in the mainstream media about drone strikes in countries like Pakistan and Yemen. However, the debate was relatively short-lived and left out several important questions, such as the history of assassination in US foreign policy and whether the premises of the extrajudicial killing program are sound.

January’s drone strike highlighted how the US government largely does not know who it is killing with drones. The targets in the strike were “al-Qaeda compounds” rather than individual suspected terrorists. According to a November 2014 report by the human rights group Reprieve, US drone strikes in Pakistan, Yemen and Somalia kill 28 unknown people for every known, intended target.

The Obama administration secretly exempted the CIA’s drone program from the “imminent threat” requirement.

The Obama administration “embraced a broader definition of what constitutes a terrorism threat that warrants a lethal response,” according to The Washington Post. Not only are top-level militants targeted, but so are “lower-level figures who are suspected of having links to terrorism operatives.” Of those killed by US drone strikes in Pakistan, only 2 percent are high-level militants. Most of those killed by drone strikes are either low-level fighters who pose little to no threat to the United States, civilians or unknown individuals. As McClatchy reported in 2013, “the Obama administration has targeted and killed hundreds of suspected lower-level Afghan, Pakistani and unidentified ‘other’ militants” in Pakistan.

In 2013, President Obama issued a Presidential Policy Guidance directive that spelled out rules for launching drone strikes and other extrajudicial killing operations. Among those rules was a requirement that a target must pose a “continuing, imminent threat to U.S. persons.” However, according to a Wall Street Journal report, the Obama administration secretly exempted the CIA’s drone program from the “imminent threat” requirement, “at least until U.S. forces completed their pullout from Afghanistan.”

The Journal reported, “The exemption in the case of Pakistan means that the CIA can do signature strikes and more targeted drone attacks on militant leaders who have been identified without collecting specific evidence that the target poses an imminent threat to the U.S. Being part of the al-Qaeda core in Pakistan is justification enough in the Obama administration’s eyes.” Signature strikes involve the United States hitting a target that is believed to be a terrorist or militant without knowing their identity.

The strike that killed Weinstein and Lo Porto was a signature strike. Without Obama’s Pakistan exemption, the CIA would have had to gather more intelligence before launching the fatal strike that killed the two Western hostages.

Human Impact of Drones and Extrajudicial Killing

When it was revealed that January’s US drone strike in Pakistan killed two Western al-Qaeda hostages, much of the mainstream media discourse focused on whether it was okay for the United States to kill its own citizens in drone strikes. However, most victims of drone strikes are not US citizens. US drones target the Islamic militant group al-Qaeda in the Arabian Peninsula (AQAP) in Yemen, the Taliban and other militants in Pakistan, and the Islamic militant group al-Shabab in Somalia. Of course, US drone strikes have also killed hundreds of civilians.

Throughout the war on terror, drone strikes and other covert operations have, so far, killed around 3,000 to over 5,000 people, including about 500 to over 1,200 civilians in Pakistan, Yemen and Somalia, according to the Bureau of Investigative Journalism. Since the first US drone strike in 2002, US drones have also killed 38 Westerners, including 10 US citizens. At least 18 are European citizens, according to the Bureau’s numbers.

Even after the Houthi takeover in Yemen last January, US drone strikes in the country continue. In April, there were four to five drone strikes in Yemen, according to the Bureau of Investigative Journalism, killing between 13 and 22 people.

No human intelligence, as in getting to know people on the ground, is involved.

On January 26, a US drone strike killed a 13-year-old boy named Mohammed Tuaiman, his brother-in-law Abdullah Khalid al-Zindani, and another man in Yemen’s Harib District. Months earlier, the 13-year-old Tuaiman told The Guardian that he lived in constant fear of drones flying over him. In 2011, a drone strike killed his father, Saleh Tuaiman, and teenage brother, Jalil, “as they were out herding the family’s camels,” The Guardian reported. Before he died, Tuaiman told The Guardian, “I see them everyday and we are scared of them.” He added, “A lot of the kids in this area wake up from sleeping because of nightmares from them and some now have mental problems. They turned our area into hell and continuous horror, day and night, we even dream of them in our sleep.”

The US government’s response was that the CIA drone strike killed three al-Qaeda militants. However, Tuaiman’s older brother Maqded said the family is not associated with al-Qaeda or the anti-Houthi fighting in the area. “He wasn’t a member al-Qaeda. He was a kid,” he explained. Maqded added, “After our father died, al-Qaeda came to us to offer support. But we are not with them. Al-Qaeda may have claimed Mohammed now but we will do anything – go to court, whatever – in order to prove that he was not with al-Qaeda.”

Drone strikes also inflict serious psychological trauma on communities who live under them. A Stanford and New York University report points out that drone strikes inflict harm that “goes beyond death and physical injury … Their presence terrorizes men, women, and children, giving rise to anxiety and psychological trauma among civilian communities.” It adds that people living under drones “have to face the constant worry that a deadly strike may be fired any moment, and the knowledge that they are powerless to protect themselves. These fears have affected behavior.” The fact that US drones will strike an area more than once (known as a “double-tap” strike) or even kill rescue workers have made people “afraid or unwilling to assist injured victims.” People often avoid gathering in groups, “including important tribal dispute-resolution bodies, out of fear that they may attract the attention of drone operators.” Some parents keep their children at home and “children injured or traumatized by strikes have dropped out of school.”

Methodology and Efficacy

Drone strikes and other extrajudicial killing operations – either through US-backed, foreign surrogates, airstrikes, cruise missile attacks or commando raids – are carried out by the CIA and US military’s Joint Special Operations Command (JSOC). The CIA has control over drone strikes in Pakistan, while JSOC launches similar operations in Yemen and Somalia, sometimes with CIA collaboration.

The United States maintains a global network of drone bases. JSOC launches drone strikes and other operations in the Horn of Africa from Camp Lemonnier in Djibouti. Meanwhile, the US Air Force flies Reaper drones from Ethiopia against al-Qaeda targets in the Horn of Africa region. The CIA launches drone strikes in Yemen from a base in Saudi Arabia. In early 2013, the US built a drone base in Niger’s capital, Niamey, that hosts 120 troops to monitor the Islamic militant group al-Qaeda in the Islamic Maghreb (AQIM). Last September, the US announced it would move its drones from Niamey to a base 450 miles north in Agadez, which is closer to the Sahara. This would make it easier for the US to monitor AQIM.

To launch drone strikes in Pakistan, the CIA uses bases in Afghanistan. However, once US troops withdraw from Afghanistan by the end of this year that could pose a difficulty for the CIA. “The CIA cannot fly drones from its Afghan drone bases without US military protection,” the Los Angeles Times reported in 2014. In order to continue striking Pakistan, the CIA is seeking to move its drone bases to countries north of Afghanistan. Specific countries have not been announced but the CIA, along with the US military, did use an air base in Uzbekistan to launch drone flights until the US was kicked out in 2005. In 2014, Maj. Gen. Michael K. Nagata, commander of US special operations in the Middle East and Central Asia, visited Tajikistan, which lies north of Afghanistan, to discuss “issues of bilateral security cooperation” and “continued military cooperations” but US officials “refused to say whether they are seeking permission to base CIA drones in Tajikistan,” according to the Los Angeles Times.

“It is insane to have an intelligence agency picking targets and killing people.”

Targeting for drone strikes is not based on human intelligence but rather electronic – or signals-based – intelligence (i.e. monitoring electronic signals). Drone operators use metadata analysis and geolocate cell phone SIM cards of a suspected terrorist to determine who to kill in a strike, according to a report by The Intercept. In other words, drone operators pinpoint the GPS location of an individual’s cell phone SIM card on a map; analyze the time, duration and location of the calls; analyze that data to get an idea of their target’s behavior to see if they’re a “terrorist” or “militant” worthy of death and then, when the time comes, kill them. No human intelligence, as in getting to know people on the ground, is involved. The NSA then collects this intelligence and feeds it to the CIA or JSOC who then launch the strike. However, this regularly results in killing people who are not militants since the methodology targets a SIM card rather than an actual person. It is very common for people in countries like Pakistan and Yemen to hold multiple SIM cards or give them to family and friends. Taliban militants also randomly hand out SIM cards to confuse trackers.

President Obama has his own kill list, for which he personally “signs off on every strike” in Yemen, Somalia and a third of strikes in Pakistan through a secretive, internal White House process, according to The New York Times. The administration “counts all military-age males in a strike zone as combatants … unless there is explicit intelligence posthumously proving them innocent.” The White House’s kill list is based on similar lists from the Pentagon and CIA. In addition, the Obama administration created a massive database of people to capture or kill called the “disposition matrix.” This database goes “beyond existing kill lists” and stores “biographies, locations, known associates and affiliated organizations,” according to The Washington Post, and the US government plans to keep adding names to this kill-or-capture database for years to come.

Robert Steele, a former CIA clandestine case officer who is now an open-source intelligence advocate and author, told Truthout, “CIA sucks at what it is supposed to be doing: clandestine human intelligence, all-source analysis, and innovative science and technology for extraordinary collection.” He added, “From a policy/operational perspective, it is insane to have an intelligence agency picking targets and killing people – this not only is creating enemies of the USA and US citizens traveling abroad, but it is one of the most outrageously ineffective programs in the history of the CIA.”

The death, trauma and damage inflicted by drone strikes increase anti-US sentiment and sympathy for militants in countries like Pakistan and Yemen. Victims of drone strikes will sympathize with militant groups not out of political or religious ideology but because of personal anger toward the US. For example, when a May 2013 drone strike killed al-Qaeda leader Fahd al-Quso and another man, 19-year-old Nasser Salim, in Yemen, Salim’s uncle began to hate the United States. The Washington Post reported:

“He was torn to pieces,” said Salim’s uncle, Abu Baker Aidaroos, 30, a Yemeni soldier. “He was not part of al-Qaeda. But by America’s standards, just because he knew Fahd al-Quso, he deserved to die with him.”

Out of anger, Aidaroos said, he left his unit in Abyan province, the nexus of the fight against the militants. Today, instead of fighting al-Qaeda, he sympathizes with the group – not out of support for its ideology, he insists, but out of hatred for the United States. (emphasis added)

In 2009, al-Qaeda in the Arabian Peninsula had 300 members. As drone strikes increased in Yemen, that number grew to 700 or more.

“Assassination Is Not New”

The current US extrajudicial killing program does not exist in a historical vacuum. During the Cold War, the US government and its surrogates executed perceived opponents, especially those affiliated with communism. “Assassination is not new,” Robert Steele told Truthout. “What is new is that there is so much money and so many contractors and so many dictatorial regimes that will support special operations to do hunter-killer teams that we have lost our soul as a nation.”

Larry Hancock, a Vietnam War veteran and author of Shadow Warfare: The History of America’s Undeclared Wars and other books on US military and intelligence agencies, explained to Truthout that, during the Cold War, the US’s assassinations were usually authorized via implicit and vague conversations among US officials and were carried out by foreign surrogates with whom the US was working. Hancock said most of the Cold War’s assassination plots and attempts occurred during the Eisenhower years, and that the president primarily communicated about the attacks via euphemisms. Hancock said, “It’s unclear that President Eisenhower actually ever sat down in a meeting and said, ‘Go kill someone.’ It’s quite clear that that he sat down with his National Security Council and, in so many words, ‘We need to eliminate this person. We need to take care of this issue. We need to make it go away,’ essentially. And everyone knew what he was talking about.” He added, “There was no approvals process. There was no review process. And there was never even a direct statement given. It was literally all implied in conversation.”

Hancock also said that with assassinations during the Cold War, “it’s not like the US citizen or CIA employee or anyone actually within the US government did the assassinations. They always used surrogates. They used the people that they were working with – revolutionaries, insurgents. And that gave them deniability.” These elements posed risks, such as miscommunication. CIA agents and foreign surrogates were not always sure that when they were told to “take care” of a “problem” that order meant killing someone or not.

Assassinating – or “targeted killing” of – people is hardly anything new in US foreign policy.

This happened during the assassination of Patrice Lumumba, a Congolese independence leader who became the democratically elected prime minister of Congo in 1960. Lumumba was a charismatic leader who advocated political and economic liberation for Congo, along with Pan-Africanism. Belgium, which colonized Congo until that point, certainly did not like Lumumba nor the country’s newfound independence. Nor did the United States, which saw Lumumba as part of the global communist threat. CIA chief Allen Dulles ordered Lumumba’s assassination via poison, apparently at Eisenhower’s behest.

“When the [CIA] chief of station in the Congo actually met the CIA officer carrying in poison to kill Lumumba, he was amazed because he’d been getting memos and correspondence from CIA headquarters that they needed to ‘eliminate the problem’ but he thought that they were talking in a political fashion. He had no idea they meant to do it physically,” Hancock told Truthout. Since the CIA was unable to get the poison to Lumumba in time, it aided rival Congolese political forces who wanted to assassinate the independence leader. In September 1960, Lumumba was deposed by a coup led by Col. Joseph Mobutu. Lumumba was finally captured – with CIA help – on December 1, 1960. One month later, on January 17, 1961, Lumumba was executed by oppositional Congolese security forces in Katanga, a short-lived state that seceded from Congo but is now part of the Democratic Republic of Congo.

The CIA also helped capture and assassinate Argentine Marxist revolutionary Ernesto “Che” Guevara, who played a key role in leading the Cuban Revolution. Felix Rodriguez, a Cuban exile turned CIA operative, advised Bolivian troops during their hunt for Guevara in Bolivia. On October 8, 1967, Guevara was captured by Bolivian soldiers. The next day, Che was executed by a young Bolivian Army sergeant named Mario Teran.

Another example of US assassination policy is the Phoenix program during the Vietnam War. Phoenix, launched in 1965, was created and executed by the CIA, US special operations forces and South Vietnamese security forces to “neutralize” Viet Cong Infrastructure (VCI) through infiltration, capture, torture, terrorism and assassination. This involved capturing or killing suspected Viet Cong members, many of whom were civilians. Phoenix was composed of paramilitary teams known as Provincial Reconnaissance Units (PRUs) and regional interrogation centers.

As journalist Michael Otterman writes in his book American Torture: From the Cold War to Abu Ghraib and Beyond, “The PRUs would kill VCI members, terrorize civilians and capture those deemed to have knowledge about VCI structure. At the interrogation centers, CIA interrogators, alongside their Vietnamese counterparts, would torture VCI prisoners in an effort to learn the identity of VCI members in each province.” CIA interrogators and Vietnamese security forces compiled the lists, which were then sent to PRUs, Vietnamese national police, US Navy SEALs and other US commandos, and PRUs “who, in turn, would capture, kill or detain new VCI targets.”

Lt. Vincent Okamoto, an intelligence liaison officer with Special Forces assigned to the Phoenix program, publicly remarked on what was wrong with the program:

The problem was, how do you find the people on the blacklist? It’s not like you had their address and telephone number. The normal procedure would be to go into a village and just grab someone and say, “Where’s Nguyen so-and-so?” Half the time the people were so afraid they would say anything. Then a Phoenix team would take the informant, put a sandbag over his head, poke out two holes so he could see, put commo wire around his neck like a long leash, and walk him through the village and say, “When we go by Nguyen’s house scratch your head.” Then that night Phoenix would come back, knock on the door, and say, “April Fool, motherfucker.” Whoever answered the door would get wasted. As far as they were concerned whoever answered was a Communist, including family members. Sometimes they’d come back to camp with ears to prove that they killed people. This was uncontrolled violence and at times I think it became just wholesale killing.

By the end of the program in 1972, Phoenix killed anywhere between 20,000 and 40,000 people. Three decades later, CIA officials would look back at Phoenix as a “useful model” for its black site program, according to The New Yorker’s Jane Mayer.

After the 1975 Church Committee hearings on the illegality of CIA, NSA and FBI activities, President Gerald Ford issued an executive order banning assassinations in 1976. However, Congress never passed an actual law against assassinations. Since 1976, every president has tried to get around the ban by redefining what “assassination” is in order to justify strikes against certain targets, such as Saddam Hussein in Iraq. The war on terror, however, allowed the United States to explicitly resurrect an old policy but with a new name – “targeted killing.”

During the Iraq and Afghanistan wars, the US utilized a targeted killing program similar to Phoenix. JSOC conducted several kill-or-capture operations in Iraq and Afghanistan. US commandos analyzed insurgent networks by collecting images from surveillance drones and tracking mobile phone numbers. Based on this intelligence analysis, JSOC would locate and kill or capture intended targets during raids. However, this often led to capturing or killing the wrong person.

Thus, assassinating – or “targeted killing” of – people is hardly anything new in US foreign policy.

Are Drone Strikes Legal?

The United States claims it is engaged in a global conflict with al-Qaeda and so-called “associated forces.” The legal basis for this war is the 2001 Authorization for Use of Military Force (AUMF). Hastily passed by Congress a few days after 9/11, it authorizes 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.”

Now, the AUMF has been stretched far beyond its original mandate. The Obama administration, along with federal courts, interprets the AUMF to justify attacking “associated forces,” which the US government considers any co-belligerent or armed group fighting alongside al-Qaeda. This includes Islamic militant groups like al-Nusra in Syria and Ansar al-Sharia in Libya.

Many legal scholars have argued that both the US extrajudicial killing program and larger war on terror undermine international law. UN special rapporteur on extrajudicial, summary or arbitrary executions Christof Heyns condemned drone strikes in a 2013 UN report. The report stated, “The expansive use of armed drones by the first States to acquire them, if not challenged, can do structural damage to the cornerstones of international security and set precedents that undermine the protection of life across the globe in the longer term.”

A May 2010 report by the former UN special rapporteur on extrajudicial, summary or arbitrary executions, Philip Alston, challenged the legal premises of the US extrajudicial killing program and broader war on terror. Under international law, international armed conflicts occur between the armed forces of two states or within a military occupation of a certain territory – not between states and non-state actors like terrorist groups. Non-international armed conflicts, on the other hand, can occur between states and non-state actors. The United States claims it is in a non-international armed conflict against al-Qaeda and its affiliates. However, the criteria for non-international armed conflicts are very specific and make it difficult for the US to claim it is engaged in such a conflict.

According to the 2010 report, there are three elements of a non-international armed conflict. The first: “The non-state armed group must be identifiable as such, based on criteria that are objective and verifiable,” such as “Minimal level of organization of the group such that armed forces are able to identify an adversary” and “Engagement of the group in collective, armed, anti-government action”; “For a conflict involving a State, the State uses its regular military forces against the group.” Second, “There must be a minimal threshold of intensity and duration.” The violence must be “[b]eyond the level of intensity of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence and other acts of a similar nature” and “‘protracted armed violence’ among non-state armed groups or between a non-state armed group and a State.” Third, the territorial confines of the conflict can be “[r]estricted to the territory of a State and between the State’s own armed forces and the non-state group” or “[a] transnational conflict, i.e., one that crosses State borders … This does not mean, however, that there is no territorial nexus requirement.”

The US cannot legally claim to be at war with al-Qaeda, which makes the war on terror illegal.

Thus, according to the report, “these factors make it problematic for the US to show that – outside the context of the armed conflicts in Afghanistan or Iraq – it is in a transnational non-international armed conflict against ‘al Qaeda, the Taliban, and other associated forces.”‘ Such transnational terrorist groups have members and small ties to numerous countries like Saudi Arabia, Pakistan, the United Kingdom, parts of Europe, Indonesia and elsewhere. With the “possible exception of Pakistan,” the report points out that none of these countries “recognize themselves as being part of an armed conflict against al-Qaeda or its ‘associates’ in their territory.” The attacks against al-Qaeda that do happen do not have a duration nor intensity that rise “to the level of an armed conflict.”

Moreover, transnational terrorist groups like al-Qaeda are far too loose and nebulous to be considered a “party” in a war under international law. Some “appear to be not even groups, but a few individuals who take ‘inspiration from al Qaeda,'” according to the report. This means terrorist groups like al-Qaeda and its affiliates are more like drug cartels or criminal gangs than standing armies, paramilitaries or guerrilla fighters.

When it comes to policies like Obama’s Presidential Policy Guidance, which requires that a target must pose a “continuing, imminent threat to US persons” if they are to be extrajudicially killed, it is important to remember that the White House is operating from a very different definition of the term “imminent.” The Obama administration obliterated the word “imminent.” When using force in self-defense against an “imminent” threat, the term “imminence,” under international law, means “necessity of that self-defense is instant, overwhelming, and leaving no choice of means, and no moment for deliberation.”

However, according to a 16-page white paper leaked to NBC News, the Obama administration argues that the “condition that an operational leader present an ‘imminent’ threat of violent attack against the United States does not require the United States to have clear evidence that a specific attack on U.S. persons and interests will take place in the immediate future.” Additionally, a “high-level official” could determine that someone is an “imminent” threat if they are “an operational leader” of al-Qaeda or an “associated force” who is or recently has been involved in planning attacks against the United States and “there is no evidence suggesting that he has renounced or abandoned such activities.” Again, this requires little evidence of a specific attack.

Naz Modirzadeh, a legal expert and founding director of the Harvard Law School Program on International Law and Armed Conflict (PILAC), put it bluntly to the Bureau of Investigative Journalism: “Not to mince words here, if it is not in a situation of armed conflict, unless it falls into this very narrow area of imminent threat then it is an extra-judicial execution. This is absolutely unlawful under IHRL [international human rights law] and of course under domestic law in any place in which such an attack might occur. And illegal under US law.” She added, “So then we don’t even need to get to the nuance of who’s who, and are people there for rescue or not. Because each death is illegal. Each death is a murder in that case.” Thus, even if so-called “militants” are killed by drone strikes or other extrajudicial killing operations outside a declared battlefield, their deaths are illegal.

Therefore, under international law, the United States cannot legally claim to be at war with al-Qaeda and “associated forces,” which makes the war on terror illegal.

Drone strikes and extrajudicial killings are part of a larger system of permanent war that has existed for generations in the United States and shows no sign of abating. Assassination occurred during the Cold War and remains part of US foreign policy. Instead of being a tool for “security,” assassination is a tactic of subversion, terror and power projection. Considering the harm it has caused to international security and the hundreds of people it has killed and injured, the US extrajudicial killing program deserves a deeper discussion than what passes for debate in the mainstream press.

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