Marjorie Cohn
April 28, 2015
portside
 
It is not just the U.S. image that is suffering. Drone strikes create more enemies of the United States. While Faisal Shahzad was pleading guilty to trying to detonate a bomb in Times Square, he told the judge, “When the drones hit, they don’t see children.”
 
 

The aftermath of a US drone strike in Yemen in September. The US claimed the attack killed six Islamist militants but the Yemeni government said the target was missed and 13 civilians were killed, Reuters ,
 
 

President Barack Obama stood behind the podium and apologized for
inadvertently killing two Western hostages - including one American -
during a drone strike in Pakistan. Obama said, “one of the things that sets
America apart from many other nations, one of the things that makes us
exceptional, is our willingness to confront squarely our imperfections and
to learn from our mistakes.” In his 2015 state of the union address, Obama
described America as “exceptional.” When he spoke to the United Nations
General Assembly in 2013, he said, “Some may disagree, but I believe that
America is exceptional.”

American exceptionalism reflects the belief that Americans are somehow
better than everyone else. This view reared its head after the 2013 leak of
a Department of Justice White Paper that describes circumstances under
which the President can order the targeted killing of U.S. citizens. There
had been little public concern in this country about drone strikes that
killed people in other countries. But when it was revealed that U.S.
citizens could be targeted, Americans were outraged. This motivated Senator
Rand Paul to launch his 13-hour filibuster of John Brennan’s nomination for
CIA director.

It is this double standard that moved Nobel Peace Prize winner Archbishop
Desmond Tutu to write a letter to the editor of the *New York Times*, in
which he asked, “Do the United States and its people really want to tell
those of us who live in the rest of the world that our lives are not of the
same value as yours?” (When I saw that letter, I immediately invited
Archbishop Tutu to write the foreword to my book, “Drones and Targeted
Killing: Legal, Moral, and Geopolitical Issues.” He graciously agreed and
he elaborates on that sentiment in the foreword).

Obama insists that the CIA and the U.S. military are very careful to avoid
civilian casualties. In May 2013, he declared in a speech at the National
Defense University, “before any strike is taken, there must be
near-certainty that no civilians will be killed or injured – the highest
standard we can set.”

Nevertheless, of the nearly 3,852 people killed by drone strikes, 476 have
reportedly been civilians. The Open Society Justice Initiative (OSJI),
which examined nine drone strikes in Yemen, concluded that civilians were
killed in every one. Amrit Singh, a senior legal officer at OSJI and
primary author of the report, said “We’ve found evidence that President
Obama’s standard is not being met on the ground.”

In 2013, the administration released a fact sheet with an additional
requirement that “capture is not feasible” before a targeted killing can be
carried out. Yet the OSJI also questioned whether this rule is being
followed. Suspected terrorist Mohanad Mahmoud Al Farekh, a U.S. citizen,
was on the Pentagon’s “kill list” but he was ultimately arrested by
Pakistani security forces and will be tried in a U.S. federal court. “This
is an example that capturing can be done,” according to Micah Zenko of the
Council on Foreign Relations.

The fact sheet also specifies that in order to use lethal force, the target
must pose a “continuing, imminent threat to U.S. persons.” But the leaked
Justice Department White Paper says that a U.S. 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 renders the
imminency requirement a nullity. Moreover, if there is such a low bar for
targeting a citizen, query whether there is any bar at all for killing
foreigners.

There must also be “near certainty” that the terrorist target is present.
Yet the CIA did not even know who it was slaying when the two hostages were
killed. This was a “signature strike,” that targets “suspicious compounds”
in areas controlled by “militants.” Zenko says, “most individuals killed
are not on a kill list, and the [U.S.] government does not know their
names.” So how can one determine with any certainty that a target is
present when the CIA is not even targeting individuals?

Contrary to popular opinion, the use of drones does not result in fewer
civilian casualties than manned bombers. A study based on classified
military data, conducted by the Center for Naval Analyses and the Center
for Civilians in Conflict, concluded that the use of drones in Afghanistan
caused 10 times more civilian deaths than manned fighter aircraft.

Moreover, a panel with experienced specialists from both the George W. Bush
and Bill Clinton administrations issued a 77-page report for the Stimson
Center, a nonpartisan think tank, which found there was no indication that
drone strikes had advanced “long-term U.S. security interests.”

Nevertheless, the Obama administration maintains a double standard for
apologies to the families of drone victims. “The White House is setting a
dangerous precedent – that if you are western and hit by accident we’ll say
we are sorry,” said Reprieve attorney Alka Pradhan, “but we’ll put up a
stone wall of silence if you are a Yemeni or Pakistani civilian who lost an
innocent loved one. Inconsistencies like this are seen around the world as
hypocritical, and do the United States’ image real harm.”

It is not just the U.S. image that is suffering. Drone strikes create more
enemies of the United States. While Faisal Shahzad was pleading guilty to
trying to detonate a bomb in Times Square, he told the judge, “When the
drones hit, they don’t see children.”

Americans are justifiably outraged when we hear about ISIS beheading
western journalists. Former CIA lawyer Vicki Divoll, who now teaches at the
U.S. Naval Academy, told the *New Yorker*’s Jane Mayer in 2009, “People are
a lot more comfortable with a Predator [drone] strike that kills many
people than with a throat-slitting that kills one.” But Americans don’t see
the images of the drone victims or hear the stories of their survivors. If
we did, we might be more sympathetic to the damage our drone bombs are
wreaking in our name.

Drone strikes are illegal when conducted off the battlefield. They should
be outlawed. Obama, like Bush before him, opportunistically defines the
whole world as a battlefield.

The guarantee of due process in the U.S. Constitution as well as in the
International Covenant on Civil and Political Rights must be honored, not
just in its breach. That means arrest and fair trial, not summary
execution. What we really need is a complete reassessment of Obama’s
continuation of Bush’s “war on terror.” Until we overhaul our foreign
policy and stop invading other countries, changing their regimes,
occupying, torturing and indefinitely detaining their people, and
uncritically supporting other countries that illegally occupy other
peoples’ lands, we will never be safe from terrorism.

*Marjorie Cohn is a professor at Thomas Jefferson School of Law, past
president of the National Lawyers Guild, and deputy secretary general of
the International Association of Democratic Lawyers. Her most recent book
is “Drones and Targeted Killing: Legal, Moral, and Geopolitical Issues.”*

 
 
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