The American Civil Liberties Union filed a Freedom of Information Act (FOIA) lawsuit March 16 demanding that the US disclose the legal basis for its use of unmanned drones to conduct targeted killings overseas. The suit especially seeks information on when, where, and against whom drone strikes can be authorized, the number and rate of civilian casualties, and other basic information essential for assessing the wisdom and legality of using armed drones to conduct targeted killings.
"The public has a right to know whether the targeted killings being carried out in its name are consistent with international law and with the country's interests and values," said Jonathan Manes, a legal fellow with the ACLU National Security Project. "The Obama administration should disclose basic information about the program, including its legal basis and limits, and the civilian casualty toll thus far."
The CIA and the military have used unmanned drones to target and kill individuals not only in Afghanistan [2] and Iraq [3] but also in Pakistan [4] and, in at least one case in 2002 [5], Yemen [6]. Recent reports, including public statements from the director of national intelligence, indicate that US citizens have been placed on the list of targets who can be hunted and killed with drones.
The ACLU made an initial FOIA request for information on the drone program in January. The new lawsuit against the Defense Department, the State Department and the Justice Department seeks to enforce that request. None of the three agencies have provided any documents in response to the request, nor have they given any reason for withholding documents. The CIA answered the ACLU's request by refusing to confirm or deny the existence of any relevant documents. The CIA is not a defendant in the lawsuit because the ACLU will first appeal the CIA's non-response to the Agency Release Panel.
"The government's use of drones to conduct targeted killings raises complicated questions—not only legal questions, but policy and moral questions as well," said Jameel Jaffer, director of the ACLU National Security Project. "These kinds of questions ought to be discussed and debated publicly, not resolved secretly behind closed doors. While the Obama administration may legitimately withhold intelligence information as well as sensitive information about military strategy, it should disclose basic information about the scope of the drone program, the legal basis for the program and the civilian casualties that have resulted from the program."
The ACLU's lawsuit seeks, in addition to information about the legal basis for the drone program, information about how the program is overseen and data regarding the number of civilians and non-civilians killed in the strikes. Estimates of civilian casualties provided by anonymous government officials quoted in the press differ dramatically, from the dozens to the hundreds, giving an incomplete and inconsistent picture of the human cost of the program. (ACLU [7], March 16)
A front-page story in the Washington Post [8] on Jan. 27 noted that drone strikes are being considered against US citizens abroad—particularly in the case of Anwar al-Awlaki [9], a militant cleric now living in Yemen:
Both the CIA and the JSOC [Joint Special Operations Command] maintain lists of individuals...whom they seek to kill or capture. The JSOC list includes three Americans, including Awlaki, whose name was added late last year. As of several months ago, the CIA list included three US citizens, and an intelligence official said that Aulaqi’s name has now been added.
UN Special Rapporteur on extrajudicial, summary or arbitrary executions Philip Alston [10] said that the use of unmanned warplanes by the US to carry out attacks in Pakistan and Afghanistan may be illegal. Alston criticized the US policy in a report to the UN General Assembly's human rights committee and then elaborated at a press conference:
My concern is that these drones, these predators, are being operated in a framework which may well violate international humanitarian law and international human rights law. The onus is really on the government of the United States to reveal more about the ways in which it makes sure that arbitrary executions, extrajudicial executions, are not in fact being carried out through the use of these weapons. The response of the US is simply untenable, and that is that the Human Rights Council and the General Assembly by definition have no role in relation to killings that take place in relations to an armed conflict. that would remove the great majority of issues that come before these bodies right now.
Alston's report was presented as part of a larger demand that no state be free from accountability. (Jurist [11], Oct. 28)
See our last post on the drone strikes [12].
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