But while Panetta spoke of successful “hits” and “strikes” against terrorist targets in Pakistan, U.S. District Judge Rosemary M. Collyer found that Panetta “never acknowledged the CIA’s involvement in such [a] program.”
When Koh, the State Department counsel, was finally cleared to give his speech last year, he told the American Society of International Law, without elaboration, that it was “the considered view of this administration . . . that U.S. targeting practices, including lethal operations conducted with the use of unmanned aerial vehicles, comply with all applicable law, including the laws of war.”
Two months later, in May 2010, a U.N. report found that blanket statement wanting, at best, and noted that if safeguards are in place, the administration has not told anyone what they are.
“They have refused to disclose who has been killed, for what reason, and with what collateral consequences,” wrote U.N. Special Rapporteur Philip Alston, a New York University law professor. “The result has been a vaguely defined license to kill and the creation of a major accountability vacuum.”
Since Koh’s speech, the administration has said little on the issue. White House counterterrorism adviser John O. Brennan acknowledged in September that “some of our closest allies and partners take a different view” of the administration’s assertion of the legal right to strike anyone, at any time and any place, who it secretly determines is associated with al-Qaeda.
And “because we are engaged in an armed conflict with al-Qaeda,” Brennan said, “the United States takes the legal position that — in accordance with international law — we have the authority to take action against al-Qaeda and its associated forces without doing a separate self-defense analysis each time.”
Administration officials say they have moved quickly to stop abuses. When civilian casualties in Pakistan spiked during the first half of 2010, a year in which drone strikes there averaged one nearly every three days, Obama and Brennan “demanded that they keep tightening the procedures, so that if there were any doubt, they wouldn’t take the shot,” an administration official said. “There were flaws, and they fixed them.”
The White House intervened again this year to tighten the rules after a particularly destructive March 17 strike that Pakistani officials — and international organizations — said had killed two dozen or more civilians. There was no U.S. claim of a major target, although unnamed administration officials said that 20 unnamed “militants” were dead.
Cameron Munter, the U.S. ambassador to Pakistan, complained bitterly to Washington that the program was out of control, said a second former Obama administration official. As “chief of mission,” it was Cameron’s understanding that he was to be informed of attacks in advance and that he could veto them.
With no independent outside access to Pakistan’s tribal zones, the disconnect is near-absolute between those who charge the administration with unjustified killings and those in the administration who deny the allegations. On Dec. 2, a Pakistani lawyer backed by the British-based charity Reprieve notified Munter of plans to file murder charges in the deaths of Tariq Aziz, 16, and his cousin Waheed Rehman, 12, allegedly killed in an Oct. 31 drone strike on a vehicle in their home region of North Waziristan. According to Reprieve, its representatives had met with Tariq just days earlier in Islamabad to give him a camera to document drone deaths.
A U.S. official familiar with counterterrorism operations in Pakistan responded that there were “major problems with the charges from Reprieve.”
“It’s absolutely possible to tell the difference between an adult male and a 12-year-old child in these sorts of actions,” said the official, who was authorized to comment on the condition of anonymity. “On that day no child was killed; in fact, the adult males were supporting al-Qaeda’s facilitation network and their vehicle was following a pattern of activity used by al-Qaeda facilitators.”
Last summer, Brennan said in a statement that “there hasn’t been a single collateral death because of the exceptional proficiency [and] precision of the capabilities we’ve been able to develop.” When human rights organizations sharply disputed that assertion, Brennan clarified it to say there were no civilian deaths that the administration had confirmed.
The cost of secrecy can be high, warned John B. Bellinger III, who argued for more legal precision and disclosure when he was counsel to both the National Security Council and the State Department under George W. Bush.
“If we don’t explain our legal rationale and the limitations we apply now,” Bellinger said, “then we’re opening the door to other countries to do the same sort of thing.”
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