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  December 9, 2012

Obama Writing "Rules" for Killing People with Drones

Michael Ratner: Pres. Obama debating rules that allow him to kill extra-judicially anyone considered an enemy combatant anywhere in the world including US citizens and by logical extension, within the United States
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Michael Ratner is President Emeritus of the Center for Constitutional Rights (CCR) in New York and Chair of the European Center for Constitutional and Human Rights in Berlin. He is currently a legal adviser to Wikileaks and Julian Assange. He and CCR brought the first case challenging the Guantanamo detentions and continue in their efforts to close Guantanamo. He taught at Yale Law School, and Columbia Law School, and was President of the National Lawyers Guild. His current books include Hell No: Your Right to Dissent in the Twenty-First Century America, and Who Killed Che? How the CIA Got Away With Murder.

NOTE: Mr. Ratner speaks on his own behalf and not for any organization with which he is affiliated.


PAUL JAY, SENIOR EDITOR, TRNN: Welcome to The Real News Network. I'm Paul Jay in Baltimore. And welcome to this week's edition of The Ratner Report with Michael Ratner.

Michael is president emeritus of the Center for Constitutional Rights in New York. He's chair of the European Center for Constitutional and Human Rights in Berlin. He's a board member of The Real News Network.

Thanks for joining us, Michael.


JAY: What are you following this week?

RATNER: Well, you know, we've been following at the Center for Constitution Rights for a long time the issue of drone killings by the U.S. administration. That's targeted killings that are done by drones.

The Center brought the first cases a year or two ago on trying to stop the drone killings of American citizens in Yemen, particularly Anwar al-Aulaqi, who was a American-citizen cleric who was preaching a lot of very, very tough stuff. We were unsuccessful, and the administration killed him with a drone. They then went on and they killed his son a few weeks later. His son is Abdulrahman al-Aulaqi. His son is completely innocent of anything, not even a bad speech, 16 years old. And we now represent the grandfather, Nasser al-Aulaqi, on behalf of his son Anwar and on behalf of his grandson, who were killed by drones.

Why it's come to the fore all of a sudden is last week the Obama administration—you know, they leak these things when they want to leak them, but they leak the fact that they were debating writing the rules for how they should kill people with drones. It all seems very bizarre. The excuse was that they were getting rules in place just in case a new administration took over that wasn't theirs and they wanted to have a set of rules for how you kill people with drones. And so that's what they're debating.

The context of the debate is crazy. The context is: should we just kill people who really want to have their finger on the button and are about to bomb the United States? Or do we want to help out in some of these local civil wars in various countries? Do we want to just kill militants? What should we do?

The real problem is—lots of problems, but one is there's already a set of rules (and that's called international law) that tells you who you can't and can kill. And the administration has gone way beyond those rules since the Bush era, but under Obama it's taken on a particularly nasty turn. He's used, like, scores more drones than the Bush administration used. The estimates are that 2,500 people have been killed by drones, of which perhaps 800 are civilians, more or less.

But even of the group that are supposedly not civilians, the definition of who can be killed is very loose. It's very loose in a couple of ways that make it illegal. One is they're using drones outside of any war zone. They're using them in Yemen. They're using them in Somalia. They're using them in Pakistan.

The second reason is they're using what are called signature strikes. A signature strike is one in which they don't actually know the name of the person they're going to assassinate or kill, but the person is in the vicinity of other, quote, "militants", and therefore they think that person has the characteristic of a militant or a terrorist, whatever word they use (and we don't know, 'cause the rules are secret), and they decide they're going to kill him.

So you're talking about a set of policies and practices that are already utterly violative of international law, and now they're going to try and come up with some kind of rules that are still going to be violative of international law. We have rules, they're there for a reason in international law, and it's to stop exactly what the administration is doing [crosstalk]

JAY: Now, if it's a violation of international law and in theory these are laws that the United States has ratified, then doesn't that make it a violation of American law?

RATNER: It does, actually. That's correct. These international treaties do make it a violation of American law. And we actually have two lawsuits going. We had the initial lawsuit going to try and stop the killing of Anwar al-Aulaqi. We lost that case, not on the merits; we lost it for, I think, a very foolish reason. I mean, the judge took it seriously. We argued it for two hours in court. And the judge said in the end, well, this is a decision that has to be made by the politicians, the political branches, the president and Congress. Of course, Congress has never said anything, but I'm not sure we want them to say anything, considering who they are. And it's not for a court.

But if it's not for a court to decide whether the U.S. can murder, in these cases that we brought, American citizens, then who's it for? What our arguments were is that particularly as American citizens—but I think it applies to anybody who's going to be murdered by a drone—is that you have to have a level of due process. You can't just have the president on his own deciding that anyone anywhere in the world can be murdered by a drone. Yesterday it was Pakistan or Yemen or Somalia, Afghanistan. Tomorrow it could be London, it could be Buenos Aires, it could be somewhere else. There's no limits to what the president can do.

But the answer, going back to your question, is yes, international law is part of American law, and international law prohibits the use of drones, except—well, not drones, really, but assassinations or killings, really, and only the—it prohibits it in every circumstance except the absolute narrowest. And the only argument you could make is if a person has their finger on the button and is about to launch a missile to the United States to kill us, yes, then it's not feasible to arrest that person, it's imminent, it's concrete, it's specific, and then yes, you have to do something. But that is not the cases in which we're using these drones.

Twenty-five hundred people were not killed with their finger on the button. It's doubtful whether any of those people had a finger on the button. And what you see happening is what happens in every one of these cases: the practice gets broadened out and broadened out. So it's not the finger on the button anymore; it's militants, it's signature strikes, people whose names they don't know, it's people who are involved in a civil war and we want to stop one—we want to kill the leadership of one side who we don't like if they're opposing a government we like. It's that kind of thing, and that's how broad it is.

JAY: Is there any restriction in American law about who a president can order killed, whether it's a drone or a CIA sniper's rifle? I mean, is—in theory, is there anything stopping a president from ordering anyone from being killed?

RATNER: Well, we think there is. We think our constitution applies and it requires some kind of court order before you can execute someone, even in these kind of situations they're raising. Obviously, in a war, you're allowed to shoot the other side. These aren't that.

The administration's justification—and this is where we get to that legal issue—is that we're in a war with al-Qaeda, and therefore we can just kill them anywhere they are in the world. If you buy into that, that still isn't exactly legal, because they still have to be participating in something. They can't just be sitting in London and you can just go murder them.

But our constitution does require due process. That's what it says before you can lose life or liberty. Does that just apply to American citizens? I think not. I think you can't just murder human beings without a form of due process, which is to say, a judicial proceeding deciding on that person's guilt or innocence.

JAY: So is their any process available within the United States to charge President Obama with murder?

RATNER: You know, there's no process like that. This would have to be an international court. What we've done—we can do civil cases like we've done in the United States to try and get the practice stopped, which we tried in the al-Aulaqi case. Look, the al-Aulaqi case was the best case we could have. They had an American citizen. How could it be that Obama could, sitting in that office, decide to kill an American citizen? And he has a kill list that—and they leaked out that they were going to kill this guy, and we tried to stop it, and we couldn't. And that's the best case we could have, because there there's no issue. The Constitution applies. Due process should have applied. There was no claim that he had his finger on a button. He was a militant, and there was some rough claim that he'd gotten involved in—some kind of operational claim, but they never put forth the evidence of it. And they killed him. And then they killed his son, and that they have no justification for at all. I mean, there's not much for the father, but, you know, for the son [crosstalk]

JAY: Okay. My understanding from that leak is that there's some kind of little committee President Obama has that decides who's on the kill list and who's going to get killed. That's question one: is that correct? And two, if you take their logic to its full extension, is there anything stopping them in law from doing this in the United States?

RATNER: I've read the leaks that you have, Paul, and that's exactly what we think. We think there's a small committee that approves each kill. Obama for some reason—and maybe this had to do with the election—they leaked out that Obama made the decision. It's not just the CIA making the decision on these drone strikes, it's not just, you know, the JSOC, Joint Special Operations of the army, but Obama himself signs off on the kill list. And I think that had to do with his election being this tough Obama, he killed Osama bin Laden, at least indirectly, etc., etc. So I do think there's a small committee that decides this.

What was your second question? Remind me now.

JAY: If their logic is because it's a war they can do—they can kill people based on just their own decision, is there anything that would then stop them from doing the same thing inside the United States?

RATNER: The answer is they could kill people in the United States. I mean, what we claim is, of course, that you have to arrest people first before you can kill them. They don't necessarily buy that. So, obviously, in the United States it's going to be easier to arrest somebody than it is in Yemen. But they could have arrested or gotten—taken into custody al-Aulaqi and others. They didn't want to, for whatever reasons, because partly it's just easier to kill him. I mean, that's what's really going on here. Some people have even said it's easier to kill him, because all the trials are in such a mess because they had these military commissions at Guantanamo, and where are they going to put him, why don't we just kill him. And so what's really going on here: because it's easy to kill them. Because here's what happens. I'm at my computer now. There's a bunch of screens. If you ever—I think they once revealed one of the rooms where they set up the kills. And they have these guys sitting at computers, whether it's near Las Vegas, or one up—upstate New York, or one near you, I think, in Washington, and they sit at computers, and they have drones flying all around with their photography drones, you know, the video drones. They see what they want to see, they study the people for a few weeks, they see the—they find the person, and then they press a button, send the drone up, and the drone drops—or kills the person.

So that's how—and so it's easy to do. You don't lose any American troops. It's not the cheapest thing, but, you know, this is easy. It's out of sight. I sit at my computer and I kill people. So, you know, that's a pretty easy way to decimate people, to kill people. And that's why I think people are finding it so attractive.

JAY: And you're saying that if you extend their legal logic, there's no reason why they couldn't do the same thing in the United States, as long as they can justify we are at war with whatever force it is we're killing.

RATNER: That's correct. Their legal logic is that they could kill the people in Yemen, they can kill the people in Somalia, they can kill the people in London, in Buenos Aires, and they could kill somebody in Washington, if they felt it was necessary to do it, by a drone.

JAY: Thanks for joining us, Michael.

RATNER: Thank you, Paul.

JAY: Thanks for joining us on The Real News Network. Don't forget we're in our year-end fundraising campaign. Every dollar you donate gets matched until we hit $150,000. So the Donate button's over here. If you want to see more reports like this, please click on it. Thanks for joining us on The Real News.


DISCLAIMER: Please note that transcripts for The Real News Network are typed from a recording of the program. TRNN cannot guarantee their complete accuracy.


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