(MintPress) – “My firm opinion is that these drone attacks, these targeted killings are illegal — period. They are unlawful whether they are carried out against a U.S. citizen or a non-U.S. citizen,” said Marjorie Cohn, a professor at the Thomas Jefferson School of Law, in a recent interview with Mint Press News. Despite the […]
(MintPress) – “My firm opinion is that these drone attacks, these targeted killings are illegal — period. They are unlawful whether they are carried out against a U.S. citizen or a non-U.S. citizen,” said Marjorie Cohn, a professor at the Thomas Jefferson School of Law, in a recent interview with Mint Press News.
Despite the growing public opposition to drone use abroad, Congress is moving in lockstep with the Obama administration, establishing a secret court to review drone killings without calling out the actual problems — the killing of innocent civilians and illegal surveillance.
In addition to killing more than 1,000 civilians since 2004, drones have killed three American citizens, a sign that the rule of law and constitutional liberties are rapidly eroding. With drones predicted to fly in U.S. airspace as soon as 2015, extrajudicial killings, like the one against Anwar al-Awlaki, could happen on U.S. soil in the future.
Congress and the facade of pushing back
“In terms of setting up another secret court to authorize target killings which are patently illegal, I think that would not be the solution,” said Cohn, an expert on civil liberties and author of “The United States and Torture: Interrogation, Incarceration, and Abuse.”
Congress appears to be checking the power of the executive branch by establishing a separate court, but in reality is creating a small, virtually insignificant hurdle for the Obama administration to clear. Dianne Feinstein (D-Calif.) is among a growing number in Congress supportive of the new court that will be “an analogue of the Foreign Intelligence Surveillance Court.”
Feinstein is supported by many colleagues in Congress, including Sen. Angus King (I-Maine).
“Having the executive being the prosecutor, the judge, the jury and the executioner all in one is very contrary to the traditions and the laws of this country,” King said.
This would be an encouraging development were the court not a secret court like the Foreign Intelligence Surveillance Court. With little to no transparency, the American public will still be left in the dark when it comes to U.S. drone strikes.
“The court would probably be modeled along the lines of the foreign surveillance court, the court that administers the foreign intelligence act or FISA (Foreign Intelligence Surveillance Act),” added Cohn, the former president of the National Lawyers Guild.
The FISA was created in 1978 after the Church Committee in the U.S. Congress discovered widespread, unconstitutional spying by J. Edgar Hoover’s FBI against activists in the United States.
The counterintelligence “COINTEL-PRO” program exposed by the Church Commission found that the FBI, working with other intelligence agencies, conducted illegal wiretaps and surveillance of major activist groups: the Black Panthers, the American Indian Movement and members of various anti-war groups.
The committee even uncovered plots by the CIA abroad designed to assassinate foreign leaders, including a plan to use mafia hitmen as agents for taking out Cuban President Fidel Castro.
The ensuing FISA courts have been a small countervailing force, checking the powers of the executive branch and helping to uphold constitutional liberties for U.S. citizens. The court, however, is powerless to stop presidential actions that simply circumvent judicial approval.
The Bush administration proved itself adept at circumventing the court after the 9/11 attacks. During the incipient stages of the so-called “war on terror,” the Bush administration conducted a bevy of illegal wiretaps against suspected terrorists and innocent Americans, later deemed unconstitutional by the U.S. Supreme Court.
The problem is that court or no court, Obama, like Bush, has flaunted both national and international laws. With little room for recourse, the proposed “drone court” could be little more than a toothless tiger that could further expose drone killings for what they are — illegal attacks. However, any court will have little power to end the atrocities if the executive branch is not compliant with its rulings.
Previously, the president had been assassinating innocent civilians and U.S. citizens by using a secret “kill list” ordering the military to eliminate enemy targets through drone killings. John Brennan, chief counterterrorism advisor to President Obama now up for confirmation as director of the Central Intelligence Agency (CIA), was instrumental in drafting this list.
“We are bound by principles of international law, specifically the United Nations Charter which says that one country can use military force against another only in self-defense,” Cohn said.
Self-defense as defined under international law must be a response to an attack that is instant, overwhelming and leaving no moment for deliberation. In no case have drone strikes met these criteria for national self-defense.
While President Obama has been hailed by many within the Democratic base as a more humane alternative to his predecessor George W. Bush, his foreign policy carries forth many of the same principles including support for torture crafted by the neoconservative movement.
Countering drone attacks
Legal experts remain hopeful that an emboldened Congress and U.S. Supreme Court could challenge the illegal use of drones.
“It looks like the Obama administration does not want judicial review, but if Congress puts on enough pressure I think probably there will be such a court established. My position is that the checks and balances in the Constitution, if they mean anything, mean that the judicial and the legislative branches should be checking and balancing the executive. That means revealing these policies that have thus far been secret,” Cohn said.
President Obama agreed to hand over the White Paper, a secretive document upon which the drone policies are based, to the Senate Intelligence Committee last week, a positive step forward clarifying the methods of illegal surveillance and assassinations. However, it will take much more to apply sufficient pressure to actually end the use of drone warfare.
The White Paper “poo-poos judicial review and says judicial enforcement of such orders would require the court to supervise inherently predictive judgements by the president and his national security advisers as to when and how to use force against a member of an enemy force against which Congress has authorized the use of force,” Cohn said.
In other words, Congress does have the power to order President Obama to hand over documents relating to the drone program. Additionally, it also has the power to establish a viable, transparent court capable of actually challenging the use of drones in the U.S. and abroad.
Eleven states including Virginia, Montana, Maine, Oklahoma, Missouri, North Dakota, Nebraska, Florida, Oregon and California have already legislated against drone use in their airspace, a sign that even among more conservative constituencies, public opposition to drone use is growing.
This could bolster the U.S. Supreme Court, already capable of ruling on the constitutionality of unmanned drone surveillance. Previously, the U.S. Supreme Court used its power in a constructive way by declaring wiretaps during the Bush administration to be illegal.
“They really put the breaks on the worst abuses of the Bush administration. The Supreme Court slapped down Bush administration policies four times, saying you are not allowed to strip people of habeas corpus, you are not allowed to set up kangaroo courts and try people for war crimes and execute them,” Cohn said.
Although Guantanamo Bay prison is still open, the Supreme Court also ruled that the prison located in Cuba, 90 miles off the coast of the United States, is illegal if U.S. laws do not apply.