Tag Archives: targeted killings

Drone Strikes: the body count

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The U.S. assaults… have been far more deadly than is generally recognized. Military sources say that drone strikes have killed between 20,000 and 25,000 Islamic State operatives in Iraq and Syria. U.S. conventional attacks have killed about 30,000 more, for a total “body count” of over 50,000….The CIA and JSOC both conduct roughly the same number of drone flights every day. But the sources said the military’s drones conducted more than 20,000 strikes over the last year, in Afghanistan, Yemen and Syria, while the CIA is said to have struck less than a dozen targets over that same period.

The CIA oversaw much of America’s drone warfare during the first half of Obama’s presidency, when it was targeting al-Qaida operatives in Pakistan. But the agency’s focus on such counterterrorism “direct action” appears to have diminished over the past several years.

Obama’s  preference for special operations forces and their “small-footprint” tactics, as opposed to big conventional assaults….One unlikely legacy of Obama’s presidency is that he made the secret, once-impermissible tactic of targeted killing the preferred tool of U.S. counterterrorism policy.

Excerpt from David Ignatius, Pentagon and CIA in a terror turf war,  Washington Post. Dec 12, 2016

Lethal Operations Against US Citizens Lawful: secret memo

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A confidential Justice Department memo concludes that the U.S. government can order the killing of American citizens if they are believed to be “senior operational leaders” of al-Qaida or “an associated force” — even if there is no intelligence indicating they are engaged in an active plot to attack the U.S.The 16-page memo, a copy of which was obtained by NBC News, provides new details about the legal reasoning behind one of the Obama administration’s most secretive and controversial polices: its dramatically increased use of drone strikes against al-Qaida suspects abroad, including those aimed at American citizens, such as the September 2011 strike in Yemen that killed alleged al-Qaida operatives Anwar al-Awlaki and Samir Khan. Both were U.S. citizens who had never been indicted by the U.S. government nor charged with any crimes….The undated memo is entitled “Lawfulness of a Lethal Operation Directed Against a U.S. Citizen who is a Senior Operational Leader of Al Qa’ida or An Associated Force.” It was provided to members of the Senate Intelligence and Judiciary committees in June by administration officials on the condition that it be kept confidential and not discussed publicly.

Although not an official legal memo, the white paper was represented by administration officials as a policy document that closely mirrors the arguments of classified memos on targeted killings by the Justice Department’s Office of Legal Counsel, which provides authoritative legal advice to the president and all executive branch agencies. The administration has refused to turn over to Congress or release those memos publicly — or even publicly confirm their existence. A source with access to the white paper, which is not classified, provided a copy to NBC News.

“This is a chilling document,” said Jameel Jaffer, deputy legal director of the ACLU, which is suing to obtain administration memos about the targeted killing of Americans. “Basically, it argues that the government has the right to carry out the extrajudicial killing of an American citizen. … It recognizes some limits on the authority it sets out, but the limits are elastic and vaguely defined, and it’s easy to see how they could be manipulated.”…..

The completeness of the administration’s public accounts of its legal arguments was also sharply criticized last month by U.S. Judge Colleen McMahon in response to a lawsuit brought by the New York Times and the ACLU seeking access to the Justice Department memos on drone strikes targeting Americans under the Freedom of Information Act. McMahon, describing herself as being caught in a “veritable Catch-22,” said she was unable to order the release of the documents given “the thicket of laws and precedents that effectively allow the executive branch of our government to proclaim as perfectly lawful certain actions that seem on their face incompatible with our Constitution and laws while keeping the reasons for the conclusion a secret.”  In her ruling, McMahon noted that administration officials “had engaged in public discussion of the legality of targeted killing, even of citizens.” But, she wrote, they have done so “in cryptic and imprecise ways, generally without citing … any statute or court decision that justifies its conclusions.”……..

“A lawful killing in self-defense is not an assassination,” the white paper reads. “In the Department’s view, a lethal operation conducted against a U.S. citizen whose conduct poses an imminent threat of violent attack against the United States would be a legitimate act of national self-defense that would not violate the assassination ban. Similarly, the use of lethal force, consistent with the laws of war, against an individual who is a legitimate military target would be lawful and would not violate the assassination ban.”

Excerpts from Michael Isikoff. EXCLUSIVE: Justice Department memo reveals legal case for drone strikes on Americans, NBC News, Feb. 6, 2012

The Playbook of Targeted Killings

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The Obama administration is nearing completion of a detailed counterterrorism manual that is designed to establish clear rules for targeted-killing operations but leaves open a major exemption for the CIA’s campaign of drone strikes in Pakistan, U.S. officials said.  The carve-out would allow the CIA to continue pounding al-Qaeda and Taliban targets for a year or more before the agency is forced to comply with more stringent rules spelled out in a classified document that officials have described as a counterterrorism “playbook.”

The document, which is expected to be submitted to President Obama for final approval within weeks, marks the culmination of a year-long effort by the White House to codify its counterterrorism policies and create a guide for lethal operations through Obama’s second term.

A senior U.S. official involved in drafting the document said that a few issues remain unresolved but described them as minor. The senior U.S. official said the playbook “will be done shortly.”  The adoption of a formal guide to targeted killing marks a significant — and to some uncomfortable — milestone: the institutionalization of a practice that would have seemed anathema to many before the Sept. 11 , 2001, terrorist attacks.Among the subjects covered in the playbook are the process for adding names to kill lists, the legal principles that govern when U.S. citizens can be targeted overseas and the sequence of approvals required when the CIA or U.S. military conducts drone strikes outside war zones.

U.S. officials said the effort to draft the playbook was nearly derailed late last year by disagreements among the State Department, the CIA and the Pentagon on the criteria for lethal strikes and other issues. Granting the CIA a temporary exemption for its Pakistan operations was described as a compromise that allowed officials to move forward with other parts of the playbook.The decision to allow the CIA strikes to continue was driven in part by concern that the window for weakening al-Qaeda and the Taliban in Pakistan is beginning to close, with plans to pull most U.S. troops out of neighboring Afghanistan over the next two years. CIA drones are flown out of bases in Afghanistan.

Excerpt, Greg Miller, Ellen Nakashima and Karen DeYoung, CIA drone strikes will get pass in counterterrorism ‘playbook,’ officials say, Washington Post., Jan 19, 2012

The CIA Drone Program and Right to Information

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A London court  has ruled against examining intelligence-sharing by [Government Communications Headquarters] GCHQ  that leads to CIA drone strikes, claiming it would ‘imperil relations’ with the US.   The case was brought by Noor Khan, a Pakistani national whose father was killed in a drone strike in March 2011. The strike, which killed over 40 people, mostly civilians who had gathered to resolve a mining dispute, is one of the bloodiest on record. Khan has also launched court action against drone strikes in Pakistan. His UK case was supported by legal charity Reprieve and solicitors Leigh Day & Co.

Khan’s lawyers argued that in cases where the UK shared intelligence with the US security services on the location of suspects, knowing that this may be used to kill them with drone strikes, the GCHQ agents responsible may be committing crimes including accessory to murder. The case was an application for a judicial review of the UK’s intelligence-sharing policy in cases where the information might lead to drone strikes.  But Lord Justice Moses and Mr Justice Simon yesterday rejected the application.  ‘It is plain, from the nature of the claims, that the purpose of the proceedings in England and in Pakistan is to persuade a court to do what it can to stop further strikes by drones operated by the United States,’ said Lord Justice Moses in his written response.  He cited a legal principle whereby ‘the courts will not sit in judgment on the sovereign acts of a foreign state’; breaking with this principle would ‘imperil relations between the states,’ he added.

In order to decide whether GCHQ agents might be open to prosecution if they shared information with the CIA that was used to target drone strikes, a UK court would have to rule on whether the CIA’s campaign in Waziristan could be considered a formal war, as this would allow the agents to claim combatant immunity.  ‘I reject the suggestion that the argument can be confined to an academic discussion as to the status of the conflict in North Waziristan,’ wrote Lord Justice Moses. ‘The claimant cannot demonstrate that his application will avoid, during the course of the hearing and in the judgment, giving a clear impression that it is the United States’ conduct in North Waziristan which is also on trial.’  ‘

The government has never officially confirmed or denied sharing intelligence for drone attacks, although in 2010, a Sunday Times article quoted ‘insiders’ claiming GCHQ had shared information about the locations of al Qaeda and Taliban commanders in both Afghanistan and Pakistan. GCHQ told the Sunday Times all intelligence sharing was in ‘strict accordance’ with the law.

Noor Khan announced he would appeal the decision. Rosa Curling, of Khan’s solicitors Leigh Day & Co, said: ‘We are disappointed that the court has decided not to engage in this very important issue, leaving our client no option but to appeal the decision. This claim raises very serious questions and issues about the UK’s involvement in the CIA drone attacks in Pakistan. This case seeks to determine the legality of intelligence sharing in relation to GCHQ assistance in CIA drone strikes.’  Kat Craig, legal director of Reprieve, said: ‘By avoiding judicial scrutiny over drone attacks, combined with its ongoing attempts to push through secret courts, this government is showing a disturbing desire to put itself above the law… If the Government is supporting the CIA’s campaign of drone strikes which are illegal, the British public have the right to know.’

Alice K Ross, High court rejects first UK challenge to CIA’s drone campaign, Bureau of Investigative Journalism, Dec. 22, 2012

The Legality of Targeted Killings

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The CRS memorandum, entitled “Legal Issues Related to the Lethal Targeting of U.S. Citizens Suspected of Terrorist Activities,” was prepared in May 2012 by legislative attorney Jennifer K. Elsea. It presents an overview of the pertinent legal context, and then carefully parses official Administration statements in an attempt to infer a detailed legal rationale for lethal targeting. A copy was obtained by Secrecy News.

“This memorandum is an effort to clarify the debate by providing legal background, setting forth what is known about the Administration’s position and identifying possible points of contention among legal experts and other observers,” the memo states.  In the end, CRS concludes that none of the established legal frameworks is a perfect fit for the Administration’s lethal targeting operations because the current U.S. practice of lethal targeting involves features that are improvised, inconsistent or otherwise questionable.

For example, CRS says the Administration appears to have redefined the meaning of “imminence,” one of the required elements for justifying the use of force in self-defense on the territory of another country. The standard definition of imminence refers to an overwhelming threat that allows “no moment for deliberation.” But the Administration uses imminence idiosyncratically “to refer to the window of opportunity for striking rather than the perceived immediacy of the threat of an armed attack.” This novel usage “may pose some challenge to the international law regarding the use of force,” CRS said.

The CRS memo notes that the U.S. Supreme Court has ruled — in Hamdi v. Rumsfeld — that when a U.S. citizen is detained as a suspected enemy combatant he must be given notice of the factual basis for his detention and an opportunity to rebut it. Yet, in contrast, when a citizen-suspect is to be killed rather than detained the Administration’s position is that no such notice or opportunity is required.  This embrace of unchecked executive authority may prove difficult to reconcile with the majority holding in Hamdi, the memo suggests.  In fact, CRS says, the Administration’s position “seems to conform more with Justice Thomas’s dissenting opinion in Hamdi, in which Justice Thomas argued that in the context of wartime detention for non-punitive purposes, ‘due process requires nothing more than a good-faith executive determination’.”

By withholding its own Office of Legal Counsel opinion on the legality of lethal targeting of suspected terrorists who are U.S. citizens, the Obama Administration seems intent not on protecting sensitive operational details but on suppressing public awareness and debate. The CRS memo is not a substitute for the OLC opinion, but it nonetheless can serve to advance public understanding of the underlying issues.

Excerpt, Steven Aftergood, Legality of Targeted Killing of Suspected Terrorists Reviewed by CRS, SecrecyNews.com, Sept. 10, 2012