Why Drone Death Courts are a Terrible Idea

February 25, 2013

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Public thirst is growing for more information about the Obama administration’s death-by-drone program and what can be done to ensure US policies do not authorize unlawful killings— whether of a US citizen or anyone else. Unfortunately,  a number of commentators—including the editorial board of the New York Times—have proposed the idea of a special court to review the Obama administration’s kill list, along the lines of the Foreign Intelligence Surveillance Court, which reviews executive surveillance and search requests in espionage or terrorism cases. It’s a terrible idea that underscores how far from basic human rights principles the “global war” approach to countering terrorism has taken the US government.

A secret drone death-warrant court, would in some sense be issuing a warrant of execution, without the condemned person ever knowing that a “charge” has been laid, that a “trial” has taken place, or that a “verdict” and “sentence” has been passed, let alone being able to defend themselves in the proceedings in any way.  If “global war” thinking hadn’t permeated so much of the way the US government thinks and talks about how to deal with the threat of terrorism, the proposal by some to establish a special court that would secretly review and approve government proposals to conduct lethal drone strikes would immediately be rejected as a non-starter that misses the point.

Under international human rights law, the intentional use of lethal force is lawful only if, at the time of its use, it is “strictly unavoidable” in order to meet an “imminent threat of death” in self-defense or defense of others. If there’s time for the government to go to a court to seek and obtain judicial approval for killing a particular person, then by definition the threat can’t ever be so imminent that the use of lethal force would be lawful under the general “law enforcement” standards.

Part of the problem is that the administration is trying to radically reinterpret the term “imminent” to allow the killing of an individual in the absence of any intelligence about a specific planned attack, or the individual’s personal involvement in planning or carrying out a specific attack. This notion stretches the concept of imminence in a manner that is unsupported by existing international law on the right of states to self-defense, and indeed that robs the term “imminent” of its ordinary meaning.

On the other hand, if the use of drones or other means for “targeted killings” was properly restricted to attacks on valid military targets in the context of an actual armed conflict, it is not clear that even the proponents of secret drone death-warrant courts would still regard them as practical or necessary. It seems likely that it is only because the administration is currently claiming for itself such a broad authority to kill outside of battlefield situations, and with such little transparency, that members of Congress have responded with the “solution” of a secret drone court to approve the killings.

Clearly the USA is involved in a specific armed conflict in Afghanistan, and the laws of war are relevant there. However, the Obama administration has carried over the fundamentally flawed idea introduced by the Bush administration — that the US government is engaged in a far wider “global war” with al-Qa’ida and other armed groups – to approach virtually the entire world as a battlefield. The US government has effectively claimed that, whenever and wherever in the world it secretly and unilaterally decides there might be someone suspected of involvement with al-Qa’ida or other associated groups, human rights law, and particularly the right to life of anyone in the immediate vicinity, simply ceases to apply.

Under its “global war” framework, the US government has at times resorted, among other things, to enforced disappearance, torture, secret detainee transfers, indefinite detention, and unfair trials. The same framework is now deployed to justify  a “targeted killing” policy that totally ignores human rights standards, plays fast and loose with the concept of “imminence”, and appears to permit ”targeted killings” far removed from any situation that can credibly be recognized as constituting hostilities in an armed conflict, in circumstances that would constitute extrajudicial execution under international law.  It is crucial that the more permissive rules of the laws of war be confined to the extraordinary circumstances where they might be applicable– active hostilities in a clearly defined armed conflict – and not become the general norm.

The approach outlined in the white paper – which is a summary of longer still classified Justice Department legal memoranda – raises concerns that the legal opinions on which the Obama administration is relying are in fact the product of an attempt to justify predetermined policy preferences, rather than objective attempts to ascertain the national and international legal obligations with which the government must comply.  The legal framework for its “targeted killing” operations is part of that selective approach to international law. A change in tack is long overdue.

It is also remarkable that despite the principle of universal human rights being enshrined in the USA’s Declaration of Independence, we so often find in the debates around countering terrorism the denial to others of the fundamental rights to life and liberty considered essential in the USA. A real debate about human rights and US drone killing policies would not focus so exclusively on the targeting of US citizens, but would seek to ensure that the US government respects the inherent rights to life, to liberty and to human dignity, of everyone regardless of nationality. If the USA is in practice to live up to its declared beliefs, the authorities must be made to care equally about the life of a Pakistani bystander as they would about the life of a US bystander; and even more of a challenge, must accord a Pakistani national suspected of involvement in terrorism the same respect and protection for the right to life and liberty as it would a US citizen suspected of similar conduct.

The very fact a secret court to approve secret and officially denied drone killings, including of US citizens, could be viewed as a matter worthy of serious public debate in the United States of America is a chilling marker of just how far the “global war” way of thinking about countering terrorism corrodes the most basic human rights principles and values. What is urgently needed is not blind faith in secret courts, but full public disclosure and debate about the substantive issue: the implications of the sweeping scope the Obama administration is claiming for itself to maintain “kill lists” and carry out other “targeted killings” without regard to human rights.

What must Congress and the Obama administration immediately do to help prevent extrajudicial executions?

Congress must challenge the administration to ensure that compliance with international human rights law is a central part of US policy and practice. Limited oversight by Congress cannot justify depriving the US public, or for that matter the people of the countries where such attacks are being carried out, so much of the details about the program of killings, and the rules under which it operates.

The Administration should disclose further legal and factual details about US policy and practices for “targeted killings”, including the full legal memorandum that the white paper apparently summarized.   In the meantime, the relevant Congressional Committees—Judiciary, Intelligence, Foreign Relations and Armed Services, for example—should urgently hold public hearings with independent experts who can explain how what we already know about the administration’s “targeted killing” program gives grounds to conclude that US policy permits violations of the right to life, often referred to as the most fundamental human right of all.

The administration, of course, doesn’t need to wait for Congressional hearings before choosing a new course – it should publicly commit itself now to bringing US policies and practices in line with international human rights law and immediately put that commitment into practice.