[Peace-discuss] Ryan Goodman @ NYT: The Drone Question Obama Hasn’t Answered

[Robert Naiman]

http://www.nytimes.com/2013/03/09/opinion/the-drone-question-obama-hasnt-answered.html

March 8, 2013
The Drone Question Obama Hasn’t Answered
By RYAN GOODMAN

THE Senate confirmed John O. Brennan as director of the Central
Intelligence Agency on Thursday after a nearly 13-hour filibuster by
the libertarian senator Rand Paul, who before the vote received a
somewhat odd letter from the attorney general.

“It has come to my attention that you have now asked an additional
question: ‘Does the President have the authority to use a weaponized
drone to kill an American not engaged in combat on American soil?’ ”
the attorney general, Eric H. Holder Jr., wrote to Mr. Paul. “The
answer to that question is no.”

The senator, whose filibuster had become a social-media sensation,
elating Tea Party members, human-rights groups and pacifists alike,
said he was “quite happy with the answer.” But Mr. Holder’s letter
raises more questions than it answers — and, indeed, more important
and more serious questions than the senator posed.

What, exactly, does the Obama administration mean by “engaged in
combat”? The extraordinary secrecy of this White House makes the
answer difficult to know. We have some clues, and they are troubling.

If you put together the pieces of publicly available information, it
seems that the Obama administration, like the Bush administration
before it, has acted with an overly broad definition of what it means
to be engaged in combat. Back in 2004, the Pentagon released a list of
the types of people it was holding at Guantánamo Bay as “enemy
combatants” — a list that included people who were “involved in
terrorist financing.”

One could argue that that definition applied solely to prolonged
detention, not to targeting for a drone strike. But who’s to say if
the administration believes in such a distinction?

American generals in Afghanistan said the laws of war “have been
interpreted to allow” American forces to include “drug traffickers
with proven links to the insurgency on a kill list,” according to a
report released in 2009 by the Senate Foreign Relations Committee,
then led by John Kerry, now the secretary of state.

The report went on to say that there were about 50 major traffickers
“who contribute funds to the insurgency on the target list.” The
Pentagon later said that it was “important to clarify that we are
targeting terrorists with links to the drug trade, rather than
targeting drug traffickers with links to terrorism.”

That statement, however, was not very clarifying, and did not seem to
appease NATO allies who raised serious legal concerns about the
American targeting program. The explanation soon gave way to more
clues, and this time it was not simply a question of who had been
placed on a list.

In a 2010 Fox News interview, under pressure to explain whether the
Obama administration was any closer to capturing or killing Osama bin
Laden, Mr. Kerry’s predecessor, Hillary Rodham Clinton, said that “we
have gotten closer because we have been able to kill a number of their
trainers, their operational people, their financiers.” That revelation
— killing financiers — appears not to have been noticed very widely.

As I have written, sweeping financiers into the group of people who
can be killed in armed conflict stretches the laws of war beyond
recognition. But this is not the only stretch the Obama administration
seems to have made. The administration still hasn’t disavowed its
stance, disclosed last May in a New York Times article, that
military-age males killed in a strike zone are counted as combatants
absent explicit posthumous evidence proving otherwise.

Mr. Holder’s one-word answer — “no” — is not a step toward the greater
transparency that President Obama pledged when he came into office,
but has not delivered, in the realm of national security.

By declining to specify what it means to be “engaged in combat,” the
letter does not foreclose the possible scenario — however hypothetical
— of a military drone strike, against a United States citizen, on
American soil. It also raises anew questions about the standards the
administration has used in deciding to use drone strikes to kill
Americans suspected of terrorist involvement overseas — notably Anwar
al-Awlaki, the American-born cleric who was killed in a drone strike
in Yemen in 2011.

Is there any reason to believe that military drones will soon be
hovering over Manhattan, aiming to kill Americans believed to be
involved in terrorist financing? No.

But is it well past time for the United States government to specify,
precisely, its views on whom it thinks it can kill in the struggle
against Al Qaeda and other terrorist forces? The answer is yes.

The Obama administration’s continued refusal to do so should alarm any
American concerned about the constitutional right of our citizens — no
matter what evil they may or may not be engaged in — to due process
under the law. For those Americans, Mr. Holder’s seemingly simple but
maddeningly vague letter offers no reassurance.

Ryan Goodman is a professor of law and co-chairman of the Center for
Human Rights and Global Justice at New York University.

-- 
Robert Naiman
Policy Director
Just Foreign Policy
www.justforeignpolicy.org
naiman at justforeignpolicy.org