Drone killings raise legal issues for USA

Keith John; 7/4/10; (2 Items)

The Obama administration, facing questions about the legality of its drone program — a key part of US counter-terrorism efforts in Pakistan’s Afghan-border region — is pushing back with a legal defence of a program it only tacitly acknowledges.The UN and some legal scholars have questioned whether it is legal for the US to target and execute individuals in countries the US isn’t at war with. Mary Ellen O’Connell of the University of Notre Dame law school has called the drone program “unlawful killing”, and says it violates international law.

The Australian, The Wall Street Journal; No Internet Text;
For the first time, a senior Obama administration official — Harold Koh, the State Department’s legal adviser — has publicly articulated the legal basis for targeted killings.
“In this ongoing armed conflict, the United States has the authority under international law, and the responsibility to its citizens, to use force, including lethal force, to defend itself, including by targeting persons such as high-level al-Qa’ida leaders who are planning attacks,” Mr Koh told international legal scholars last month.
The CIA has used drones to kill between 400 and 500 suspected militants since January last year, senior intelligence officials say. The entire program has been expanded notably since Barack Obama took office. While critics cite collateral civilian deaths, intelligence officials say about 20 civilians have been killed — a lower estimate than that made by some independent researchers.
National security hawks in the legal community as well as among former Obama and Bush administration officials say they worry the legal scrum could limit – the government’s ability to track down and kill suspects.
The arguments against the program echo the legal challenges that helped overturn US policies on the treatment of terrorism detainees.
Mr Koh’s defence in March won agreement from national security experts such as Ken Anderson, of the Washington College of Law at American University in Washington, who has urged the administration to make a legal case to safeguard what has become an important part of the antiterrorism arsenal.
Mr Koh’s speech was also noteworthy because before joining the State Department, he as a human-rights lawyer was an outspoken critic of most of the George W. Bush administration’s policies on the war on terrorism.
“A number of controversial questions were left unanswered” by Mr Koh’s speech, says Jonathan Manes, a lawyer on the American Civil Liberties Union’s National Security Project. “The speech did not say where the government draws the line between legitimate targets — combatants and those taking part in hostilities — and civilians, who cannot be targeted.
The speech also did not set out any rules on where drones strikes can be used to target and kill individuals,” Mr Manes said.
Brett McGurk, a former National Security Council official in the Bush and Obama administrations at the Council on Foreign Relations, says Mr Koh sidestepped some of the “thorniest issues” surrounding targeted killing. He specifically noted questions about “the implications of civilian agencies — the CIA — controlling the kill chain.”
The drone program falls into a legal grey area. International humanitarian law regulates continuous armed conflict between states, with recognisable combatants — little of which prevails in the US fight against al-Qa’ida.
As a civilian agency and a non-combatant under international humanitarian law, the CIA isn’t governed by the same laws of war that cover US military personnel.
The CIA says the program is legal.
Another potential pitfall: the Obama administration relies on a Bush-era congressional resolution as its main authority to track and kill suspected al-Qa’ida members. That 2001 resolution authorised the president to “use all necessary and appropriate force against those nations, organisations, or persons” deemed linked to the 9/11 attacks — a justification that dims as time passes.

History of assassination; See: http://en.wikipedia.org/wiki/History_of_assassination