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Sunday, February 10, 2013

DRONES, COURTS AND COMMON SENSE



The war in Iraq is over and the war in Afghanistan is winding down to an announced U.S. withdrawal date of “combat forces” in 2014. But the separate, although related “war on terrorism” continues and will no doubt do so for the foreseeable future. Anti-western Islamic extremists, some organized as affiliates of Al-Qaida, operate in Yemen, Pakistan, Algeria, Libya, Somalia, Mali, and other nations in the Middle East and Africa. Thus the current political controversy about the use of drones as weapons systems will need to be resolved as their use will remain relevant for many years.
The Obama Administration has greatly expanded the role of armed drones especially in Pakistan, Afghanistan and Yemen, partly because of enhanced technological capability which has emerged over the last four years and partly because of military advantages they offer in the struggle against global terrorism.

The issue now being argued in the media and the U.S. Senate has focused on the strategy of “targeted killings” in which individuals known or suspected of being terrorist operatives are selected for attack by armed drones launched from regional sites but controlled by operators (“pilots”) thousands of miles away. Opposition to this tactic has arisen mostly from predictable sources in the U.S. These include the political Left, both commentators and Senators, anti-military organizations i.e. Code Pink and Left leaning civil liberties groups i.e. the American Civil Liberties Union (ACLU).
Opponents offer different perspectives. Some criticize the tactic as a moral issue. Others claim U.S. constitutional violations. Others claim it violates international law.
Part of the problem with drones for opponents appears to be the psychological impact of a new technology which seems to employ impersonal robot- like ruthlessness.  In truth, although the aircraft are unmanned, they are being guided via satellite from  long distances, and are still being “flown” by human controllers who have more detailed information about their targets than would a pilot of a more conventional fighter aircraft. Sensors on drones provide more detailed information and their slower speed and enhanced loitering capability make their target identification /acquisition and weapons delivery more precise than conventional aircraft, thus reducing the possibility of wrong targets or casualties involving innocent bystanders.  Also as a practical matter, drones are significantly less expensive than fighter aircraft and the total avoidance of the potential loss of pilots is a major advantage.

The underlying issue in the drone debate is however, the changed nature of warfare as it relates to international terrorism. This is a war between organized military and intelligence resources of the U.S. deployed and engaged against various components of an armed entity that has, and continues, to target American and allied military and civilian personnel and infrastructure around the world. This enemy has no organized national identity, integrates itself with general populations and wears no identifying uniform,  but they are clearly not civilians and have thus been identified as enemy combatants. Critics of the targeted killings of terrorist leadership argue that they often occur “far from the battlefields” and are thus not part of any declared conflict.  But despite the concentration of forces in Afghanistan where the U.S. is supporting the national government in its struggle against the Taliban insurgency, there are no geographically defined battlefields in the war on terrorism. The battlefield is wherever the terrorists reside and operate.  Terrorist attacks planned, launched or directed from Yemen, Pakistan or Somalia are just as deadly as those originating in Iraq or Afghanistan. 

The Obama Administration’s position is that killing a terrorist enemy where we find him with the permission of the governments of those nations where the attacks take place is an act of preemptive self-defense under international law. Unfortunately, the formulation of international law lags far behind the problem of international terrorism and the use of aerial attack in response to it. Attempts to interpret such laws to apply to this new threat lead to a wide difference in opinions often heavily influenced by underlying ideological differences. 

The basic national right of national self- defense is acknowledged in Article 51 of the United Nations Charter (1945) but does not address a preemptive right. However, that right is accepted as customary international law based on the so called Caroline Case of 1837 in which standards of applicability include the “necessity of self- defense, instant and overwhelming” and leaving no choice of means and no moment of deliberation.” This 19th Century formulation has in general been refined to the basic requirements of “imminent necessity” and “proportionality” of action. 

The problem of interpreting international laws crafted in less technologically advanced times and designed to apply to interactions between states so as to apply between a state and individuals  representing a non-state actor is one for lawyers and academics. But the resolution of the terrorist threats cannot wait and the President's constitutional responsibilities as Commander -in-Chief may make such resolution impossible in all circumstances. 

The issue of targeted killings i.e. specific targets identified by intelligence sources as members of terrorist organizations has been further complicated by two incidents where the targets have been U.S. citizens by virtue of their having been born in the U.S.  Critics of these two operations claim that the guarantee of “due process” to U.S. citizens by the Fifth and Fourteenth Amendments to the Constitution requires a civilian judicial proceeding to prove guilt and subsequent proceeding to impose a sentence, thus making the Commander in Chief’s (U.S. President's) determination that such individuals are appropriate targets by drones or any other military means is unconstitutional.

This is another instance where the relative uniqueness of the nature of international terrorism in traditional jurisprudence comes in conflict with the President's duties as Commander-in-Chief and his responsibility to protect the citizens of the United States.  It invites the question of whether a citizen of the U.S. who travels abroad, joins an armed and militant organization for the purposes of sponsoring, encouraging, inciting or carrying out violent attacks on U.S. citizens, military or civilian, has in actual effect renounced his U.S. citizenship and the protections therein.

Even if not, then does that citizen’s participation in an organization of armed combatants with the same purpose, still render that citizen as a proper target for military disposition?
Once again, the impossibility of arrest, and extradition, and the aforementioned need for the President to act before, not after, a terrorist attack, makes the constitutional argument seem inappropriate.
U.S. Attorney General Holder, speaking at Northwestern University Law School, outlined the Obama administration's legal rationale for killing U.S. citizens in foreign countries, as it did in 2011 with the airstrike that killed suspected al-Qaida operative Anwar al-Awlaki in Yemen and later his son, both U.S. citizens by birth.
“ . . .the government authorizes targeted killings against U.S. citizens only after a careful review that finds the citizen poses an imminent threat of attack against the United States, that capture is not a viable option, and that the killing would be in line with the laws of war.”
Still, the debate among legal experts is inconclusive at this point as there is no agreement on which legal framework applies; International Human Rights Law; the Law of Armed Conflict as outlined in the Geneva Conventions or the 2001 U.S. Congressional Authorization for the Use of Military Force Against Terrorists.  School of Law professor at the University of Virgina  Saikrishna Prakash supports the Administration's position
"I believe the 2001 Authorization [for Use of Military Force Against Terrorists] permits the president to use military force against al-Qaida and the Taliban. If the president determines that a U.S. citizen is a member of either group, he may use military force against that citizen.  Apparently the president concluded that al-Awlaki was a member of al-Qaida and he further concluded that an attack was warranted. The president's actions were wholly consistent with domestic law."

In December, 2010 a federal district judge dismissed a lawsuit against the government by the father of al-Awlaki in an effort to force the government to disclose the legal criteria for his name appearing on a “kill list”.  In his opinion Judge Bates' acknowledgment that "this is a unique and extraordinary case that presents fundamental questions of separation of powers involving the proper role of the courts in our constitutional structure”, and that "vital considerations of national security and of military and foreign affairs and hence potentially of state secrets.”
Still, terrorism is, in the minds of some on the political Left, a civilian law enforcement issue. It can be so, if the terrorists are operating largely on their own in national territories which choose to treat them as such. The U.S. government has arrested and tried many individuals in federal court under domestic anti-terrorism laws.  However, in Yemen, Pakistan and Afghanistan, the national military forces are engaged against organized terrorists with the assistance of the U.S. military. Utilization of aerial resources including drones is a part of this military cooperation. The implausibility of arrest in remote and unsecured regions and extradition to the U.S. for civilian criminal proceedings should be obvious and U.S. constitutional protections for civilian criminal defendants in the U.S do not apply to foreign enemy combatants in foreign countries.
Current discussions in the U.S. Senate involve the attempt to create some kind of judicial review in the name of “due process”.  The specific suggestion is that a judicial panel be created similar to the Foreign Intelligence Surveillance Court which was established to authorize wiretaps and searches of suspected spies and terrorists.  Presumably this new court would hear evidence provided by the executive branch to justify the targeting of individuals or at least U.S. citizens, for elimination abroad by military or intelligence agencies.

Since there is little likelihood of large numbers of U.S. citizens working abroad with foreign terrorist organizations, a court restricted to this part of the drone effort might be approved but it is unlikely that the Congress would allow judicial interference in the conduct of military/intelligence operations against foreign combatants abroad.  Ironically, the ACLU, which believes that the whole world is a theoretical courtroom in which lawyers should decide all important matters, is opposed to such a court.  They cling to the impossible construct of the “apprehension/extradition” civilian trial procedure.  As a back-up they support an equally unlikely scenario creating of a court to hear “damages claims” against the government for U.S. citizens found to be terrorists and eliminated in foreign countries.  The national security trump card possessed by the executive branch makes this highly unlikely from both a political and a judicial point of few.  

Al Qaida operating in Pakistan and its affiliates Al Qaida in the Islamic Maghreb (AQIM) operating in Algeria and Mali and Al Qaida in the Arabian Peninsula (AQAP), operating in Yemen remain fully functioning organizations which pose serious threats to regional stability and to U.S. and other Western interests.  This is the real world in which all U.S. Presidents must operate. 

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