I'm in agreement with Marcy Wheeler that Jake Tapper, in an otherwise excellent and thorough interview with CIA Chief Leon Panetta, failed to get to the one of the key questions regarding the use of drones in the targeted killings of suspected enemy targets. I think even most staunch opponents to the use of drones would concede, if grudgingly, that the use of drones in Pakistan is probably legal, given that the Pakistani government has given their approval and that the border areas of Pakistan are basically an extension of the ongoing armed conflict in Afghanistan.
Unfortunately Tapper limited his question to whether the use of drones in Pakistan is legal:
TAPPER: I know you can't discuss certain classified operations or even acknowledge them, but even since you've been here today, we've heard about another drone strike in Pakistan and there's been much criticism of the predator drone program, of the CIA. The United Nations official Phil Alston earlier this month said quote, "In a situation in which there is no disclosure of who has been killed for what reason and whether innocent civilians have died, the legal principle of international accountability is by definition comprehensibly violated." Will you give us your personal assurance that everything the CIA is doing in Pakistan is compliant with U.S. and international law?
PANETTA: There is no question that we are abiding by international law and the law of war. Look, the United States of America on 9/11 was attacked by Al Qaida. They killed 3,000 innocent men and women in this country. We have a duty, we have a responsibility, to defend this country so that Al Qaida never conducts that kind of attack again. Does that make some of the Al Qaida and their supporters uncomfortable? Does it make them angry? Yes, it probably does. But that means that we're doing our job. We have a responsibility to defend this country and that's what we're doing. And anyone who suggests that somehow we're employing other tactics here that somehow violate international law are dead wrong. What we're doing is defending this country. That's what our operations are all about.
As Wheeler points out, it's not so much the use of drones in Pakistan that are problematic in terms of violating international prohibitions against extrajudicial killing; it's those in places like Yemen and Somalia where the American military are not involved in an ongoing armed conflict. The 2001 Authorization to Use Military Force gives the government the authority to target "those nations, organizations, or persons" who "planned, authorized, committed, or aided" the 9/11 attacks; it's hard to see how that authority could extend to a group like the brutal Somalian organization Al-Shabaab, which didn't exist in its present form until 2006.
While John Brennan may not have been speaking as a lawyer when he said that the U.S. can strike those who threaten "U.S. interests" rather than just the U.S. itself or its armed forces, he seemed to have more accurately described the administration's policy on the use of targeted killing. It's of a piece with the Obama administration's retention of the "global battlefield" in the fight against terrorist groups as policy if not as branding.
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