Monday, May 31, 2010


By William Fisher

On the heels of reports that the Administration of President Barack Obama altered a new manual on military commission rules to accommodate
an illegal drone program, a senior United Nations official is expected to call on the U.S. this week to stop Central Intelligence Agency (CIA) drone strikes against people suspected of belonging to Al Qaeda.

The UN challenge will come from Philip Alston, the United Nations special rapporteur on extrajudicial, summary or arbitrary executions. , On June 3, he is scheduled to deliver a report to the United Nations Human Rights Council in Geneva declaring that the “life and death power” of drones should be entrusted to regular armed forces, not intelligence agencies.

It is unlikely that the U.S. will accept the UN’s call because drone attacks have become an increasingly important tactic in counter-terrorism operations in Pakistan.

Alston’s views will not be legally binding, and his report will not assert that
the operation of combat drones by nonmilitary personnel is a war crime, he told The New York Times.

But he clarified why he was targeting only actions by the CIA, not by the U.S. military.

“With the Defense Department you’ve got maybe not perfect but quite abundant accountability as demonstrated by what happens when a bombing goes wrong in Afghanistan,” he said. “The whole process that follows is very open. Whereas if the C.I.A. is doing it, by definition they are not going to answer questions, not provide any information, and not do any follow-up that we know about.”

Reports over the weekend suggest that the U.S. Government has been struggling to justify the CIA’s counter-terrorism involvement without violating the laws of war.

The American Civil Liberties Union (ACLU) charged last week that the Obama administration changed a new manual on military commissions rules to accommodate its illegal drone program.

Under the old rules, "murder in violation of the laws of war" was defined as killings by people who did not meet "the requirements for lawful combatancy," which would have suggested that CIA drone operators - who are not members of the military and do not wear a military uniform - could be charged with war crimes for killing individuals using drones.

The ACLU is charging that “the U.S. program of targeting and killing people, sometimes far from any battlefield, with little oversight or Transparency, is illegal regardless of the military commissions rules.”

A Constitutional scholar, Chip Pitts, President of the Bill of Rights Defense Committee, agrees. He told IPS, “The manual’s change to the definition of ‘murder in violation of the laws of war’ made in order to exempt drone killings by the CIA further reveals the double standards at play – a problem which has characterized these commissions since the outset, when normal rules of evidence, law, and humane treatment were declared inapplicable.”

He said, “I don’t want to use the old cliché about ‘lipstick on a pig’. But no matter how much you dress up these commissions, they’re still used in circumstances where they shouldn’t be used – i.e. for terrorist suspects and those not amenable to prosecution under the classic law of war -- and they remain flawed tribunals under control of the executive, like the military courts used by dictators (which the US has always rightly criticized). That’s why we’ve seen repeated resignations by military prosecutors fed up with the system. The best way to achieve justice and prevent both war and terrorism is authentic, proactive commitment to implementing the human rights to which our nation subscribes.”

These developments come in the wake of a scathing report by the American military on the deaths of 23 Afghan civilians, saying that “inaccurate and unprofessional” reporting by Predator drone operators helped lead to an airstrike in February on a group of innocent men, women and children.

The report said that four American officers, including a brigade and battalion commander, had been reprimanded, and that two junior officers had also been disciplined. Gen. Stanley A. McChrystal, who apologized to President Hamid Karzai after the attack, announced a series of training measures intended to reduce the chances of similar events.

The attack, in which three vehicles were destroyed, illustrated the
extraordinary sensitivity to the inadvertent killing of noncombatants by NATO forces. Since taking command here last June, General McChrystal has made protection of civilians a high priority, and has sharply restricted airstrikes.

The overwhelming majority of civilian deaths in Afghanistan are caused by
insurgents, but the growing intensity of the fighting this year has sent
civilian casualties to their highest levels since 2001.

The laws of war stipulate that soldiers in traditional armies cannot be prosecuted and punished for killing enemy forces in battle. The U.S. maintains that Qaeda fighters do not meet the requirements of the Geneva Conventions — for example, wearing uniforms. They are therefore not “privileged combatants” entitled to such battlefield immunity.

But C.I.A. drone operators are also not in uniform.

The Pentagon was forced to address this issue in connection with the Plan to restart military commission trials at Guantánamo Bay. The commissions began with pretrial hearings in the case of Omar Khadr, a Canadian detainee accused of killing an Army sergeant during a firefight in Afghanistan in 2002, when Khadr was 15.

The Pentagon issued its new manual laying of commission rules the night before the first pretrial hearing. The delay was reportedly due to the time spent by government lawyers who had been rewriting a section about murder that has implications for the C.I.A. drone program.

A 2007 version of the manual defined the charge of “murder in violation of the laws of war” as a killing by someone who did not meet “the requirements for lawful combatancy” — like being part of a regular army or otherwise wearing a uniform. Similar language was incorporated into a draft of the new manual.

But, according to reporting by The New York Times, “as the Khadr hearing approached, Harold Koh, the State Department legal adviser, pointed out that such a definition could be construed as a concession by the United States that C.I.A. drone operators were war criminals. Jeh Johnson, the Defense Department general counsel, and his staff ultimately agreed with that concern. They redrafted the manual so that murder by an unprivileged combatant would instead be treated like espionage — an offense under domestic law not considered a war crime.”

The manual now states, “An accused may be convicted,” the final manual states, if he “engaged in conduct traditionally triable by military commission (e.g., spying; murder committed while the accused did not meet the requirements of privileged belligerency) even if such conduct does not violate the international law of war.”

C.I.A. drone operators, who reportedly fly the aircraft from agency headquarters in Langley, Virginia, might theoretically be subject to prosecution in a Pakistani courtroom under this new formulation. But it allows the United States to assure allies that it is in compliance with the laws of war.