An Interview With Marjorie Cohn About Targeted Killings

Posted on Feb 8, 2013

the pain of fleeting joy (CC BY-SA 2.0)

By Dennis Bernstein

(Page 2)

DB: Congress is looking for some original documents about what’s going on here. The White Paper is sort of a restatement of National Security documents that we probably haven’t been able to see yet. What about the Geneva Conventions? It sort of throws that in the garbage.

MC: Well, it does because the Geneva Conventions define willful killing as a grave breach. And grave breaches are punishable as war crimes. So this also violates the Geneva Conventions. Although the White Paper says that they are going to follow the well-established principle of proportionality - proportionality means that an attack cannot be excessive in relation to the anticipated military advantage—I don’t see how they can actually put that into practice because the force is going to be excessive. When you see how they are using drones, they are taking out convoys, and they are killing civilians, large numbers of civilians. There’s another principle of international law called distinction, which requires that the attack be directed only at legitimate military targets. We know from the New York Times expose that the kill list that Brennan brings to Obama to decide who he is going to take out without a trial—basically execute—can be used even if they don’t have a name, or if they are present in an area where there are suspicious “patterns of behavior.” These are known as signature strikes. That means that bombs are dropped on unidentified people who are in an area where suspicious activity is taking place. That goes even beyond targeted killings. Targeted killings are considered to be illegal. The U.N. Special Rapporteur on Extrajudicial Summary or Arbitrary Executions, Christof Heyns, expressed grave concerns about these targeted killings, saying that they may constitute war crimes. He called on the Obama administration to explain how its drone strikes comport with international law and to specify the bases for the decisions to kill rather than capture particular individuals.

The White Paper says that one of the requirements before they can take someone out is that capture is “infeasible.” As you go on and read this memo, infeasible begins to look like inconvenient. We have these very mushy terms, with no clear standards that comply with international law. Yet there is no oversight by any court, and Congress has no role either. So we don’t have checks and balances.  Even the Authorization for the Use of Military Force (AUMF) that Congress passed a few days after 9/11 doesn’t authorize this. The AUMF allows the president to use force against groups and countries that had supported the 9/11 attacks. But when the Bush administration asked Congress for open-ended military authority “to deter and preempt any future acts of terrorism or aggression against the United States,” Congress specifically rejected that open-ended military authority. Congress has not authorized this, and it’s not clear whether Congress would authorize it. There are several congresspersons who are trying to get a hold of the actual documents that you have referred to, beyond this White Paper, which is the tip of the iceberg.

DB: That includes Ron Wyden who is on the Intelligence Committee and can’t get a hold of this. When one looks at this Obama policy and compares it to Bush, essentially Obama has chosen well, we’ll do a little less torture, or skip the torture, and we’ll just kill them.

MC: Obama has expanded these drone attacks far beyond what the Bush administration was doing. There are many thorny issues, such as indefinite detention, how detainees are treated, and under what circumstances they can be released. The Obama administration evidently feels that it’s cleaner and easier just to kill them. Then you don’t have to worry about bad publicity from housing them at Guantanamo, not giving them a fair trial, holding them indefinitely. This goes beyond the torture policy. Now I don’t want to say that killing with drones is worse than the illegal and outrageous invasions of Iraq and Afghanistan that the Bush administration began, in which thousands and thousands and thousands of people have been killed or seriously maimed. So I wouldn’t say that Obama is worse than Bush. But certainly Obama is following in the tradition of the Bush administration and John Yoo’s expansive view of executive power where whatever the president does is unreviewable.

DB: I would say they continue the process of destroying the Bill of Rights, the Constitution and the necessary checks and balances that restrain war, that the people depend on. We are out of time. Marjorie, thanks for being with us on Flashpoints.

Marjorie Cohn is a professor of human rights at Thomas Jefferson School and former president of the National Lawyers Guild. Her most recent book is “The United States and Torture: Interrogation, Incarceration, and Abuse.” See www.marjoriecohn.com.

Dennis J. Bernstein is a host of “Flashpoints” on the Pacifica radio network and the author of Special Ed: Voices from a Hidden Classroom. You can access the audio archives at www.flashpoints.net. He can be contacted at .(JavaScript must be enabled to view this email address).

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