US defends legality of killing with drones

* WSJ report says Obama administration is pushing back with a legal defence of drone programme it only tacitly acknowledges


* International Humanitarian Law regulates continuous armed conflict between states, with recognisable combatants-little of which prevails in the US fight against al Qaeda and its allies




Daily Times Monitor




LAHORE: The Obama administration, facing questions about the legality of its drone programme - a key part of US counterterrorism efforts in the Pak-Afghan border region - is pushing back with a legal defence of a programme it only tacitly acknowledges, the Wall Street Journal (WSJ) said on Tuesday.

The UN Special Rapporteur for Extra-judicial Executions and some legal scholars have questioned whether it is legal for the US to target and execute individuals in countries the US is not at war with.




Professor Mary Ellen O'Connell of the University of Notre Dame law school told the WSJ that the drone programme was "unlawful killing", and violated international law.




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 US 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 Qaeda leaders who are planning attacks," Koh told an audience of international legal scholars on March 25, the paper said.




The Central Intelligence Agency (CIA) has used drones to kill between 400 and 500 suspected militants since January 2009, senior intelligence officials told WSJ. The entire programme has been expanded notably since Obama took office.




"While critics of the programme cite collateral civilian deaths, intelligence officials say only about 20 civilians have been killed in that period - 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 programme echo the legal challenges that helped overturn US policies on the treatment of terrorism detainees," the WSJ said.




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.




"Koh's speech was also noteworthy because, before joining the State Department, Koh, a human-rights lawyer, was an outspoken critic of most of the George W Bush administration's policies regarding the war on terrorism. Legal criticism of the drone programme has continued, however," the paper said.




"A number of controversial questions were left unanswered" by Koh's speech, Jonathan Manes, a lawyer on the American Civil Liberties Union's National Security Project told WSJ.




"The speech did not say where the government draws the line between legitimate targets - combatants and those taking part in hospitalities - 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," Manes said.




The ACLU filed a Freedom of Information suit last month in a bid to force the government to divulge details of the classified programme, the paper said.




Brett McGurk, a former National Security Council official in the Bush and Obama administrations currently at the Council on Foreign Relations, told WSJ that Koh sidestepped some of the "thorniest issues" surrounding targeted killing.




McGurk specifically noted questions about "the implications of civilian agencies-the CIA-controlling the kill chain".




Regulation: The drone programme falls into a legal grey area, the paper said. International Humanitarian Law regulates continuous armed conflict between states, with recognizable combatants - little of which prevails in the US fight against al Qaeda and its allies.




"As a civilian agency and a non-combatant under International Humanitarian Law, the CIA is not governed by the same laws of war that cover US military personnel," WSJ said.




The CIA, it said, claims the programme is legal. "Without confirming any specific activity, CIA's counterterrorism operations are lawful and precise," CIA spokeswoman Marie Harf told the paper.




Another concern raised by legal scholars and former and current administration officials is that without an articulated legal basis for the attacks, US officials could in the future be targeted themselves - by crusading judges in other countries who see targeted killings as violations of humanitarian law.