Psyche, Science, and Society

Drone Pilots Could Be Tried for ‘War Crimes,’ Law Prof Says

By Nathan Hodge and Noah Shachtman

The pilots waging America’s undeclared drone war in Pakistan could be liable to criminal prosecution for “war crimes,” a prominent law professor told a Congressional panel Wednesday.

Harold Koh, the State Department’s top legal adviser, outlined the administration’s legal case for the robotic attacks last month. Now, some legal experts are taking turns to punch holes in Koh’s argument.

It’s part of an ongoing legal debate about the CIA and U.S. military’s lethal drone operations, which have escalated in recent months — and which have received some technological upgrades. Critics of the program, including the American Civil Liberties Union, have argued that the campaign amounts to a program of targeted killing that may violate the laws of war.

In a hearing Wednesday before the House Committee on Oversight and Government Reform’s national security and foreign affairs panel, several professors of national security law seemed open to that argument. But there are still plenty of caveats, and the risks to U.S. drone operators are at this point theoretical: Unless a judge in, say, Pakistan, wanted to issue a warrant, it doesn’t seem likely. But that’s just one of the possible legal hazards of robotic warfare.

Loyola Law School professor David Glazier, a former Navy surface warfare officer, said the pilots operating the drones from afar could — in theory — be hauled into court in the countries where the attacks occur. That’s because the CIA’s drone pilots aren’t combatants in a legal sense. “It is my opinion, as well as that of most other law-of-war scholars I know, that those who participate in hostilities without the combatant’s privilege do not violate the law of war by doing so, they simply gain no immunity from domestic laws,” he said.

“Under this view CIA drone pilots are liable to prosecution under the law of any jurisdiction where attacks occur for any injuries, deaths or property damage they cause,” Glazier continued. “But under the legal theories adopted by our government in prosecuting Guantánamo detainees, these CIA officers as well as any higher-level government officials who have authorized or directed their attacks are committing war crimes.”

The drones themselves are a lawful tool of war; “In fact, the ability of the drones to engage in a higher level of precision and to discriminate more carefully between military and civilian targets than has existed in the past actually suggests that they’re preferable to many older weapons,” Glazier added. But employing CIA personnel to carry out those armed attacks, he concluded, “clearly fall outside the scope of permissible conduct and ought to be reconsidered, particularly as the United States seeks to prosecute members of its adversaries for generally similar conduct.”

Drone attacks haven’t just become the primary weapon in the American bid to wipe out Al Qaeda and affiliated terrorist networks. “Very frankly, it’s the only game in town in terms of confronting or trying to disrupt the al Qaeda leadership,” CIA director Leon Panetta said.

But that “embrace of the Predator program has occurred with remarkably little public discussion, given that it represents a radical new and geographically unbounded use of state-sanctioned lethal force,” The New Yorker’s Jane Mayer recently observed. Before 9/11, the American government regularly condemned Israel for taking out individual terrorists. “Seven years later, there is no longer any doubt that targeted killing has become official U.S. policy.”

The U.S. government has since defended the strikes as legitimate self-defense — without going into details about the operations. Kenneth Anderson, an American University law professor, said the government’s reluctance to talk about the missions — as well as its reliance on an intelligence agency to carry out military action — raises some serious questions.

In his prepared statement (.pdf), Anderson said Koh “nowhere mentions the CIA by name in his defense of drone operations. It is, of course, what is plainly intended when speaking of self-defense separate from armed conflict. One understands the hesitation of senior lawyers to name the CIA’s use of drones as lawful when the official position of the U.S. government, despite everything, is still not to confirm or deny the CIA’s operations.”

What’s more, Anderson argued, Congress has been reluctant to talk about the bigger policy issue: Why this is a CIA mission in the first place. “Why should the CIA, or any other civilian agency, ever use force (leaving aside conventional law enforcement)?” he said. “Even granting the existence of self-defense as a legal category, why ever have force used by anyone other than the uniformed military?”

Mary Ellen O’Connell, professor of law at the University of Notre Dame, was much more blunt in her statement. “Combat drones are battlefield weapons,” she told the panel. “They fire missiles or drop bombs capable of inflicting very serious damage. Drones are not lawful for use outside combat zones. Outside such zones, police are the proper law enforcement agents, and police are generally required to warn before using lethal force.”

“Restricting drones to the battlefield is the most important single rule governing their use, O’Connell continued. “Yet, the United States is failing to follow it more often than not.”

Not all of the law professors testifying today agreed. Syracuse University’s William Banks, for one, said that “the intelligence laws permit the president broad discretion to utilize the nation’s intelligence agencies to carry out national security operations, implicitly including targeted killing.” Current U.S. laws “supply adequate – albeit not well articulated or understood – legal authority for these drone strikes.”

But American laws may not be on the only ones applicable to drone strikes, critics contend. As Anderson argued, the United States may face legal challenges from what he called the “international-law community” – nongovernmental organizations, international bodies, U.N. agencies and others who view this as a program of targeted killing that falls outside the bounds of armed conflict.

Either way, this hearing will not end the controversy. As we’ve noted here before, the government has been less than forthcoming about who, exactly, authorizes drone strikes, how the targets are chosen and how many civilians may have been inadvertently killed.

Behind the Arizona Immigration Law:
GOP Game to Swipe the November Election

By Greg Palast for Truthout.org

Our investigation in Arizona discovered the real intent of the show-me-your-papers law.

[Phoenix, AZ.] Don’t be fooled. The way the media plays the story, it was a wave of racist, anti-immigrant hysteria that moved Arizona Republicans to pass a sick little law, signed last week, requiring every person in the state to carry papers proving they are US citizens.

I don’t buy it. Anti-Hispanic hysteria has always been as much a part of Arizona as the Saguaro cactus and excessive air-conditioning.

What’s new here is not the politicians’ fear of a xenophobic “Teabag” uprising.

What moved GOP Governor Jan Brewer to sign the Soviet-style show-me-your-papers law is the exploding number of legal Hispanics, US citizens all, who are daring to vote — and daring to vote Democratic by more than two-to-one. Unless this demographic locomotive is halted, Arizona Republicans know their party will soon be electoral toast. Or, if you like, tortillas.

In 2008, working for Rolling Stone with civil rights attorney Bobby Kennedy, our team flew to Arizona to investigate what smelled like an electoral pogrom against Chicano voters … directed by one Jan Brewer.

Brewer, then Secretary of State, had organized a racially loaded purge of the voter rolls that would have made Katherine Harris blush. Beginning after the 2004 election, under Brewer’s command, no less than 100,000 voters, overwhelmingly Hispanics, were blocked from registering to vote. In 2005, the first year of the Great Brown-Out, one in three Phoenix residents found their registration applications rejected.

That statistic caught my attention. Voting or registering to vote if you’re not a citizen is a felony, a big-time jail-time crime. And arresting such criminal voters is easy: after all, they give their names and addresses.

So I asked Brewer’s office, had she busted a single one of these thousands of allegedly illegal voters? Did she turn over even one name to the feds for prosecution?

No, not one.

Which raises the question: were these disenfranchised voters the criminal, non-citizens Brewer tagged them, or just not-quite-white voters given the José Crow treatment, entrapped in document-chase trickery?

The answer was provided by a federal prosecutor who was sent on a crazy hunt all over the Western mesas looking for these illegal voters. “We took over 100 complaints, we investigated for almost 2 years, I didn’t find one prosecutable voter fraud case.”

This prosecutor, David Iglesias, is a prosecutor no more. When he refused to fabricate charges of illegal voting among immigrants, his firing was personally ordered by the President of the United States, George W. Bush, under orders from his boss, Karl Rove.

Iglesias’ jurisdiction was next door, in New Mexico, but he told me that Rove and the Republican chieftains were working nationwide to whip up anti-immigrant hysteria with public busts of illegal voters, even though there were none.

“They wanted some splashy pre-election indictments,” Iglesias told me. The former prosecutor, himself a Republican, paid the price when he stood up to this vicious attack on citizenship.

But Secretary of State Brewer followed the Rove plan to a T. The weapon she used to slice the Arizona voter rolls was a 2004 law, known as “Prop 200,” which required proof of citizenship to register. It is important to see the Republicans’ latest legislative horror show, sanctioning cops to stop residents and prove citizenship, as just one more step in the party’s desperate plan to impede Mexican-Americans from marching to the ballot box.

[By the way, no one elected Brewer. Weirdly, Barack Obama placed her in office last year when, for reasons known only to the Devil and Rahm Emanuel, the President appointed Arizona's Democratic Governor Janet Napolitano to his cabinet, which automatically moved Republican Brewer into the Governor's office.]

State Senator Russell Pearce, the Republican sponsor of the latest ID law, gave away his real intent, blocking the vote, when he said, “There is a massive effort under way to register illegal aliens in this country.”

How many? Pearce’s PR flak told me, five million. All Democrats, too. Again, I asked Pearce’s office to give me their the names and addresses from their phony registration forms. I’d happily make a citizens arrest of each one, on camera. Pearce didn’t have five million names. He didn’t have five. He didn’t have one.

The horde of five million voters who swam the Rio Grande just to vote for Obama was calculated on a Republican website extrapolating from the number of Mexicans in a border town who refused jury service because they were not citizens. Not one, in fact, had registered to vote: they had registered to drive. They had obtained licenses as required by the law.

The illegal voters, “wetback” welfare moms, and alien job thieves are just GOP website wet-dreams, but their mythic PR power helps the party’s electoral hacks chop away at voter rolls and civil rights with little more than a whimper from the Democrats.

Indeed, one reason, I discovered, that some Democrats are silent is that they are in on the game themselves. In New Mexico, Democratic Party bosses tossed away ballots of Pueblo Indians to cut native influence in party primaries.

But what’s wrong with requiring folks to prove they’re American if the want to vote and live in America? The answer: because the vast majority of perfectly legal voters and residents who lack ID sufficient for Ms. Brewer and Mr. Pearce are citizens of color, citizens of poverty.

According to a study by prof. Matt Barreto, of Washington State University, minority citizens are half as likely as whites to have the government ID. The numbers are dreadfully worse when income is factored in.

Just outside Phoenix, without Brewer’s or Pearce’s help, I did locate one of these evil un-American voters, that is, someone who could not prove her citizenship: 100-year-old Shirley Preiss. Her US birth certificate was nowhere to be found as it never existed.

In Phoenix, I stopped in at the Maricopa County prison where Sheriff Joe Arpaio houses the captives of his campaign to stop illegal immigration. Arpaio, who under the new Arizona law, will be empowered to choose his targets for citizenship testing, is already facing federal indictment for his racially-charged and legally suspect methods.

I admit, I was a little nervous, passing through the iron doors with a big sign, “NOTICE: ILLEGAL ALIENS ARE PROHIBITED FROM VISITING ANYONE IN THIS JAIL.” I mean, Grandma Palast snuck into the USA via Windsor, Canada. We Palasts are illegal as they come, but Arpaio’s sophisticated deportee-sniffer didn’t stop this white boy from entering his sanctum.

But that’s the point, isn’t it? Not to stop non-citizens from entering Arizona — after all, who else would care for the country club lawn? — but to harass folks of the wrong color: Democratic blue.

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Greg Palast has investigated the illegal disenfranchisement of voters for BBC Television, Rolling Stone (with Robert Kennedy Jr.), Harper’s, The Nation and Truthout.org. Palast co-authored the investigative comic book, “Steal Back Your Vote” with Robert F. Kennedy Jr., available in full color print or for download at www.StealBackYourVote.com for a donation to the not-for-profit Palast Investigative Fund.