The Obama administration has stepped up the use of drone strikes to kill suspected al-Qaida operatives in Pakistan, Yemen and Afghanistan. Join us to discuss legal and ethical issues over U.S drone attacks.

Guests

  • Shuja Nawaz director, South Asia center, Atlantic Council and author of "Crossed Swords: Pakistan, its Army, and the Wars Within."
  • Hina Sham­si director, national security project, ACLU
  • Scott Shane reporter, The New York Times
  • John Bellinger partner, Arnold & Porter senior fellow,the Council on Foreign Relations. former legal adviser for the National Security Council and the Department of State during the George W Bush administration.

Transcript

  • 10:06:56

    MS. DIANE REHMThanks for joining us. I'm Diane Rehm. Last month, the administration publicly acknowledged for the first time it uses drones to target terrorists. Since then, there have been many more questions than answers about the operations and their results. Joining me to talk about where these strikes are taking place, who's being targeted and some of the many related legal and ethical and political issues: Scott Shane of The New York Times, John Bellinger, former legal adviser for the National Security Council and Shuja Nawaz of the Atlantic Council.

  • 10:07:40

    MS. DIANE REHMJoining us from an NPR studio in New York City, Hina Shamsi of the ACLU. I hope you'll weigh in this morning. Call us on 800-433-8850. Send us your email to drshow@wamu.org. Feel free to join us on Facebook or Twitter. Good morning to all of you.

  • 10:08:10

    MR. SHUJA NAWAZGood morning.

  • 10:08:10

    MR. JOHN BELLINGERGood morning.

  • 10:08:11

    MR. SCOTT SHANEThanks for having us.

  • 10:08:12

    MS. HINA SHAMSIGood morning, Diane.

  • 10:08:12

    REHMGood to have you all with us. Scott Shane, let me start with you. You reported earlier this week on the administration's use of drone strikes. Give us an overview.

  • 10:08:30

    SHANEWell, this was a program that was started by President Bush. It really was escalated in Pakistan in the middle of 2008, in about the last six months of President Bush's second term. President Obama, to the surprise of some people, not only, you know, maintained that program but actually expanded it quite dramatically in Pakistan in 2009 and then more dramatically in 2010.

  • 10:09:05

    SHANEAnd while the numbers in Pakistan have dropped some in 2011, 2012, it's still going strong there. And then at the end of 2009, he expanded it further into Yemen where the strikes have been escalating in recent months. And there have also been a few strikes in Somalia as well.

  • 10:09:30

    REHMAnd what's behind the timing of release of this information as far as you know?

  • 10:09:39

    SHANEWell, this -- in Pakistan, this is technically a covert action run by the CIA, that is sort of one of the most secret categories of information that the government has. The operations in Yemen and Somalia are also secret. But, obviously, when things blow up on the ground and people die, it's not entirely secret. It's not secret to the people on the ground.

  • 10:10:00

    SHANESo I think the administration has had this sort of awkward attempt to get some information out. We are able to get some questions answered by anonymous officials about the program. And in particular, they have given a series of speeches to explain why they believe that these strikes are legal and why they think they're necessary.

  • 10:10:24

    REHMJohn Bellinger, how is what this administration is doing different from what the Bush administration did?

  • 10:10:35

    BELLINGERWell, Diane, they've dramatically ramped up the program far more than the Bush administration, perhaps because they learned the lesson of what happened by capturing and detaining people. And we saw what happened with Guantanamo. So they've largely been focusing on killing them with several hundred drone strikes, killing thousands of people in several different countries. What they have done a better job of, I think, is trying to explain the legal rationale.

  • 10:11:02

    BELLINGERAnd a number of people -- including myself -- from the outside have pointed to the example of what happened to the Bush administration in Guantanamo when one is doing something edgy and controversial. So they have tried to explain through a series of speeches by the attorney general, by John Brennan at the White House, by the general Councils of the State, Defense Department and CIA, what the legal rationale is for the program to try to win greater acceptance around the world.

  • 10:11:31

    REHMHow well -- how effective do you believe they've been?

  • 10:11:35

    BELLINGERWell, it's remarkable. If the Bush administration had acknowledged a wide-ranging program to kill thousands of people in multiple countries around the world, including a number of civilians, the human rights groups and Europeans would have been outraged. I'm sure they would have accused the president of being a war criminal, grave breaches of international law.

  • 10:11:59

    BELLINGERWhat we've seen up to this point, and even after this point, is at least European countries have just looked the other way. Human rights groups, I think, and we'll hear a moment from our colleague, are getting a little bit more restive about this drone program.

  • 10:12:15

    REHMAnd before we turn to Hina Shamsi of the ACLU, Shuja Nawaz, to what extent have Pakistan, Yemen and their governments actually been involved in all of this?

  • 10:12:35

    NAWAZWell, the government, as well as the military leadership, have been complicit in this since the Bush administration and continued to be complicit in this for quite some time. There is the celebrated WikiLeaks document in which the prime minister of Pakistan was quoted by Amb. Anne Patterson saying, "I don't care if they do it as long as they get the right people. We'll protest international assembly and then ignore it," he told Amb. Patterson.

  • 10:13:09

    NAWAZThere's also another document in which the Army Chief Gen. Ashfaq Parvez Kayani asked for increased Predator presence, which his spokesman later explained as presence for surveillance and reconnaissance purpose only. But there was also a complicit agreement with the Pakistanis in the use of Pakistani airfields, including Shamsi, from where some of the drones were launched. It's just that the government and the leadership in Pakistan told the people of Pakistan a different story.

  • 10:13:46

    NAWAZAnd with their public protest over the infringement of Pakistani sovereignty, over time there's been built up this huge opposition to the United States even by people that would normally be considered friends of the United States, the intellectual leadership, the intelligentsia and the upper middle class of Pakistan.

  • 10:14:07

    REHMAnd do you believe that opposition is now being stoked by the government itself?

  • 10:14:17

    NAWAZThe government is now painted itself into a corner, and it is finding it very difficult to come out of that corner, particularly in Pakistan where we are now in an election year possibly either late this year or early in 2013. So there is nothing that they would do to jeopardize the chances of being re-elected. And beating up on the United States is always a good way to win votes.

  • 10:14:47

    REHMAnd, Hina Shamsi, now turning to you, I know that the ACLU is one of the groups that has been putting more pressure on the U.S. government and the administration to disclose more. How much success do you believe you're having?

  • 10:15:14

    SHAMSIWell, Diane, we've filed a couple of lawsuits under the Freedom of Information Act seeking disclosure about how the United States is using drones to conduct targeted killing, as well as the legal standards, the processes and the evidentiary basis for its killing of three U.S. citizens in Yemen last year.

  • 10:15:35

    SHAMSIAnd one of the things that is remarkable about this targeted killing program, which we believe is unlawful because the world is not a battle place and because people are being killed in places where the United States is not at war, but one of things that's been remarkable is that -- although the administration has sent out senior officials to give speeches, defending the legality of the program in very general terms.

  • 10:16:02

    SHAMSIAnd although numerous senior officials have anonymously provided information to people like Scott Shane and other members of the media, we still don't have real transparency. The government continues to argue in the place where transparency is most meaningful to courts that the CIA, for example, cannot even confirm or deny the existence of the program.

  • 10:16:28

    SHAMSIIt has, thus far, refused to disclose a secret Department of Justice legal memo that justifies the targeted killing of Americans. And it's refused to disclose the factual basis and the procedures officially that are in place to investigate whether killings are justified.

  • 10:16:46

    REHMDo we know at this point how many Americans have actually been killed? Do we know how many suspected terrorists have been killed? Do we know how many civilians in either Pakistan or Yemen have been killed?

  • 10:17:08

    SHAMSIWe know that at least four Americans have been killed, one in drone strike carried out under the Bush administration in Yemen and three last year: Anwar al-Awlaki, Samir Khan and the 16-year-old boy, Abdulrahman al-Awlaki, in October of last year. The rest of the information, Diane, is entirely uncertain, although journalists and independent investigators are doing some terrific work trying to establish the counts of the killings.

  • 10:17:38

    SHAMSIBut the United States refuses to acknowledge the number of strikes that have taken place, as well as the civilian casualties that have taken place. And I think one of the most remarkable things that came out in Scott Shane's article is the disclosure of how the administration may be undercounting civilian casualties by presuming that all military-age males in a particular strike zone are combatants.

  • 10:18:08

    SHAMSIAnd that raises significant concerns about whether or not -- even if you assume that the United States has justified in applying laws of war where there is no conflict taking place, we don't concede that. But even if you assume those arguments, that there is quite simply a violation of international law likely taking place.

  • 10:18:29

    REHMHina Shamsi, director of national security project for the ACLU. We'll take a short break and be right back.

  • 10:20:04

    REHMAnd welcome back. We are talking about the increasing use of drone strikes not only in Pakistan but Yemen as well. The number of civilians, the number of actual terrorists, the number of U.S. citizens actually killed, do you know that number, Scott Shane?

  • 10:20:32

    SHANENo. I mean, that number is in intense dispute between various parties, and it's partly because this entire program is cloaked in secrecy.

  • 10:20:41

    SHANEI guess I should say that the -- that administration officials make the point, which a lot of outsiders accept, that if you want to go kill terrorists in the tribal area of Pakistan and the tribal areas of Yemen, you know, by comparison with invading with 100,000 American troops, as we tried in a couple of instances, or flying over and sort of saturation bombing villages, as has been the case through military history, the number of civilians killed would be far, far greater.

  • 10:21:17

    SHANESo they make the argument that whether the number is as low as they claim or whether it's somewhat higher or even considerably higher, it's still the most humane, oddly enough, way to carry out this program.

  • 10:21:33

    REHMAnd we have an email pretty much to that effect from Margaret, who says, "If not drones, then soldiers taking out enemies without losing American and allied lives is morally acceptable and wise." How do you respond, John Bellinger?

  • 10:21:57

    BELLINGERWell, I think that is, in fact, the point that both the Bush administration and the Obama administrations believe in. I think neither administration would say that drones are a perfect weapon. There are the downsides, legally. There are the downsides with respect to a policy in Pakistan. But as people in the military often say, would you rather have a targeted strike rather than an untargeted strike?

  • 10:22:22

    BELLINGERThese weapons comply with the laws of war in terms of trying to be focused on a particular target, limiting civilians with the least possible other damage. It certainly raises a lot of other legal questions, but it does limit civilian casualties as best one can.

  • 10:22:40

    REHMAnd here's a tweet from Col. Morris, who says, "I hope Diane explores these significant differences in laws governing the CIA and the DOD drone programs with her guests today." Can you help us with that, John Bellinger?

  • 10:23:04

    BELLINGERWell, I've now been out for several years, so I don't know exactly the rules that the Defense Department or the CIA are following. In general, the CIA is allegedly following the same laws of war in terms of observing -- and John Brennan, the White House terrorism advisor said this in his recent speech, observing the important laws of distinction, targeting just civilians' proportionality, judging the number of civilian casualties and other laws of war that the military applies as well.

  • 10:23:44

    REHMSo interesting. Here's another tweet, and, Shuja, I'd like your reaction: "The terrorists don't play any rules. Keep the drones program in play."

  • 10:24:01

    NAWAZThis could well be somebody living inside FATA, the disputed Federally Administered Tribal Area that's been the subject of many of the drone strikes, particularly North Waziristan. Very interestingly, as Scott pointed out, when the operations were launched in 2008, in November that year, as well as the beginning of 2009, a survey was conducted in Pakistan, in FATA, by a group called Ariana Institute for research and studies.

  • 10:24:32

    NAWAZThey found out that the majority of the people there actually supported the drone strikes, and they supported them because they thought that the people that had come into FATA, that had rented homes there that belong to the Taliban and that were members of al-Qaida were bringing all this war and mayhem to their territory. And when I traveled in 2008 inside that area, I was told by locals of what was known as the pathrai culture.

  • 10:25:00

    NAWAZPathrai, meaning small chip or a metal homing device which locals were employed by intelligence agencies to throw over the walls of some of the targeted homes to allow them to guide the drones onto those targets. So there was support even inside FATA according to that survey. Now, there have been other surveys later on that went against it. So the question, I think, and this is one that perhaps John can help us understand is, how do you allow an instrument of war to become a policy?

  • 10:25:37

    NAWAZIt's almost as if the tail is wagging the dog, and the United States now is kind of stuck in this position of using drones in order to achieve, what? That's not quite clear what the endgame is. I also want to go back to the basic legal issue, which John is much more closer to, citing Harold Koh, the State Department's legal adviser in March 2010, when he defended the inherent right of the United States to use force to self-defense on the international law.

  • 10:26:16

    NAWAZThe question then is, how does that accord with the article of the United Nations Charter Article 51, which says that you can use that self-defense against other countries but not against militants or non-states actors?

  • 10:26:34

    REHMAnd...

  • 10:26:34

    NAWAZThat's the opposite view.

  • 10:26:35

    REHMAnd, of course, that was very controversial when that came to light, John Bellinger?

  • 10:26:42

    BELLINGERWell, this has been, I think, one of the developments in international law over the last 10 years, and that the Bush administration took it on the chin in trying to make these arguments that it was justified in using military force not only against states, meaning a country, but also against groups. And I think it has now -- although not agreed by everybody -- become accepted that a country can use military force against a group that is attacking it.

  • 10:27:09

    BELLINGERAnd in these cases, though, the action is not only an action on self-defense against the group, but as we understand it, the different countries involved have consented to the United States' use force of against al-Qaida in their countries. It certainly raises a more complicated question of international law if the countries have not consented. But as best as we can all tell, at least from the outside, Yemen, Pakistan have consented privately, while they were perhaps publicly objecting.

  • 10:27:43

    REHMHina Shamsi, I'd be interested in your reaction to not only the emailers but this whole question of the law, how the countries themselves are complicit in this whole process. What's your reaction?

  • 10:28:05

    SHAMSIWell, I think we have to separate out a couple of different frameworks of law, and that's very important to do because part of what's been happening in the last 10 years is a (word?) over very important distinctions. So while a country may consent to the use of lethal force in its own territory, that doesn't answer the questions of whether, for example, the United States' use of lethal force in another country against a particular individual is lawful, and that question is governed by two frameworks of law.

  • 10:28:39

    SHAMSIOne is if there is an actual armed conflict and there are long-established legal tests under the laws of war to show whether or not an armed conflict exists, if there is an actual armed conflict, then certain tests need to be met. But the danger here is that the Obama administration, even though it has rightly turned its back on the nomenclature of a global war on terror, is essentially carrying forward the Bush administration's claim of a worldwide battlefield. And that's simply not the case that exists.

  • 10:29:15

    SHAMSIIt is not true that around the world, we have situations where there are organized armed groups that have the level of command necessary to meet the test for an organized armed group that can participate in armed conflict, or that you have the kinds of intensity and duration that show facts on the ground resulting in war. And when those factors are not present, what you have governing is human rights law.

  • 10:29:42

    SHAMSINow, human rights law doesn't say that countries can't protect themselves. It does say, as does our Constitution, that the government can use lethal force only in response to a threat that is specific, concrete and imminent. And what the current targeted killing program is doing is far beyond the boundaries imposed either by human rights law, and even if the laws of war were to apply, it seems beyond that as well.

  • 10:30:11

    REHMAll right. And this morning's New York Times, Scott Shane -- referring to the series of articles you've done -- talks about the use of drones without knowing who is going to be killed. Does that complicate the situation? In other words, if it's not a deliberate act of seeking out someone who threatens the United States, how is this use of drones justified?

  • 10:30:55

    SHANEWell, this has been probably the most controversial aspect of the drone program inside the government. In Pakistan, there have been two kinds of strikes, the personality strikes, kind of an odd name, but where they actually know a high-level terrorist. They find him. His name has already gone on a list and been reviewed, and they say this guy is a threat. They find him, and they kill him.

  • 10:31:20

    SHANEThe more controversial category is called signature strike, and that refers to a signature of a terrorist compound, a terrorist training program, training camp, anything that looks like, you know, that the evidence suggests is a bunch of militants, a bunch of terrorists. And that's where there's been quite a bit of controversy inside the government. For example, as someone pointed out to us, fertilizer can be used to make bombs. It can also be used to grow crops.

  • 10:31:53

    SHANEAnd seeing guys running around in SUVs with fertilizer, you know, is that a signature of al-Qaida, or is that some guys, you know, trying to plant their crop? It gets very tricky. And so the signature strikes in Pakistan have been the subject of a great deal of controversy. And one other thing I might add is that, when President Obama approved expanding the strikes into Yemen because of the threat that was seen coming from there after the Christmas, in particular, around the time of Christmas, the Christmas underwear bombing in 2009, he actually resisted the idea of signature strikes in Yemen.

  • 10:32:33

    SHANEHe wanted to keep it to known terrorists. More recently, they've adjusted that a little bit and created a new category of strikes where the rules are, we're told, that if there is evidence that the people on the ground are plotting against the United States, even if you don't know their identities, if you don't know their name, you can take a shot.

  • 10:32:55

    REHMScott Shane. He's a reporter for The New York Times, and you're listening to "The Diane Rehm Show." John Bellinger, it would seem that there is a huge weight of moral responsibility on the part of the administration in these so-called signature or even personality strikes.

  • 10:33:25

    BELLINGERWell, it's right. And one of the things that was so interesting about Scott Shane's and Jo Becker's piece in The New York Times is the focus on the president's role. I spent my first four years in the Bush administration as the legal adviser for the national security inside the White House. And you see the burden on the president in having to make these decisions. Their story has President Obama personally authorizing each strike. And, on the one hand, he is -- wants very much to defend Americans. He will be held responsible if more Americans are killed, and that is a huge weight.

  • 10:34:04

    BELLINGERAnd we also have to take into account politics in an election year. On the other hand, though, he's also looking at personally approving the deaths of people around the world where we have minimal information and where there may also be civilian casualty. So the fact that the president -- like LBJ during Vietnam, spreading out charts on the table in the situation room -- is running the war itself is a really remarkable thing.

  • 10:34:34

    REHMHow do you think this weights itself politically, Scott Shane?

  • 10:34:42

    SHANEWell, you know, a lot of people would say that Democrats generally have a disadvantage in American politics on national security. And I think, by the aggressive counterterrorism program, by, in particular, the raid that killed Osama bin Laden, by the strike that killed Anwar Awlaki, you know, President Obama seems to have erased a lot of that disadvantage. I think the -- I think there is deep concern, though, inside the administration as to how this plays out. It's a new technology.

  • 10:35:15

    REHMAnd how far they can go with it.

  • 10:35:18

    SHANEHow far they can go and what are the unintended consequences. When Faisal Shahzad, the guy who tried to blow up Times Square with a car bomb in 2010, pleaded guilty, he essentially blamed the drones for radicalizing him and prompting this attack. So, you know, are we creating the next generation of terrorists is one of the questions that even inside the government is being asked.

  • 10:35:44

    REHMAnd there's another question being asked by a great many of our listeners. A growing number of colleges and local police departments have authorization to fly drones over community airspace. This poses a risk to the privacy of citizens. If the drones become weaponized, it poses a risk to citizen safety as well. Will the Federal Aviation Administration address these issues before they become a larger problem? Hina Shamsi, have you gotten into this in your own focus on drones?

  • 10:36:36

    SHAMSIYes. We've actually issued a report raising the privacy concerns, discussing the privacy concerns raised by domestic deployment of drones for surveillance. And we certainly think that the government has to take into account those concerns and to ensure that whatever the use is complies with the Fourth Amendment of our Constitution.

  • 10:37:02

    SHAMSII think, though, just going back to a couple of points that have been raised about weaponized drones, the use of drones to kill people, what we've got to acknowledge is how dangerous a precedent we are setting. People may be inclined to find comfort and trust in President Obama, but our system of government is not a system of government that is predicated on the integrity of any one individual. It is a system of checks and balances, and that's the danger that is being raised here with this policy.

  • 10:37:33

    REHMHina Shamsi, director of the National Security Project for the ACLU. Short break. We'll be right back.

  • 10:40:04

    REHMAnd welcome back. Time to go to the phones, 800-433-8850. First to Ann Arbor, Mich. Good morning, Ron. You're on the air.

  • 10:40:17

    RONHi. Good morning, Diane.

  • 10:40:18

    REHMMorning.

  • 10:40:19

    RONWhat a great show.

  • 10:40:20

    REHMThank you.

  • 10:40:21

    RONYou know, this -- fascinating topic. I guess, to be brief, as an American citizen who watched planes fly into the buildings on 9/11, who -- you know, we've seen thousands of people, of our soldiers die overseas, I can't find a reason why rooting out the terrorists through the drone strikes in the various countries is a bad idea, even though, with respect to law and such, you know, other great points have been made that, you know, the terrorists don't respect laws.

  • 10:40:52

    RONAnd while we try to honor and do as much as we can to mitigate, you know, the collateral damage, if we don't go get these people, they eventually will hatch plots, whether they're known, whether they're up and coming, you know? This is something that isn't going away, and we can't sit back on our heels and let another 9/11 happen.

  • 10:41:13

    REHMJohn Bellinger, talk about the law.

  • 10:41:17

    BELLINGERWell, the caller makes a great point. And from someone who served all eight years in the Bush administration, as we took, frankly, a lot of criticism from people around the world for being too aggressive, our concern and the president's concern was the caller concern -- thousands of people dead in New York, more plots being hatched. Were we to do nothing? And, of course, the administration had made some mistakes, but it is incumbent upon the president and his advisors to take steps to protect Americans from future attacks.

  • 10:41:49

    BELLINGERAnd we tried to get it right. I think the Obama administration has really grappled with these difficult legal and moral issues. And to their credit, they have really tried to explain more what they're doing in this series of speeches to lay out -- to disclose the program, to lay out its legal basis, to explain that it's difficult to address these concerns.

  • 10:42:10

    REHMAnd who is it who has written the laws regarding these drone strikes?

  • 10:42:17

    BELLINGERWell, you know, there's not clear law on the use of drones. The difficulty is -- and this is where we get into the real debate with the human rights groups and others -- is, what is the law that applies? In general, the United States government has tried to apply the traditional laws of war, that a drone is really no different than using a tomahawk missile or even the SEAL teams to go in and kill someone, but it's easier on -- it saves American lives to not do that, and it's more targeted.

  • 10:42:46

    BELLINGERBut it does -- it's a new kind of technology. One problem for the Obama administration -- and I believe these are legally justifiable -- is that no other country in the world has come out and said, well, we agree that the United States is legally justified in doing that. And that is a difficult position for the United States to be in when we are engaged in edgy and controversial operations.

  • 10:43:08

    REHMAnd now, Scott Shane, we have news that the United States is selling drones to Italy.

  • 10:43:18

    SHANEYeah, one of the big underlying questions for this program is the question of proliferation of technology. As with nuclear weapons, you know, we had a brief atomic weapons -- we had a brief monopoly. But it was very brief, and a lot of complications ensued. Now, there are several countries that have developed on their own armed drones. As you say, we're talking about providing armed drones to Italy. And so the question arises, and this is not just being raised by outsiders.

  • 10:43:52

    SHANEI know the State Department is working on this question. If the Russians, for example, fly a drone over Georgia and kill a Chechen terrorist who's hiding in Georgia, what will we say? You know, if the Chinese chase a Wieger, a Muslim Wieger activist who they consider to be a terrorist into Kazakhstan and kill him, you know, what -- where will we come out on this? It's a tricky thing. It's definitely coming down the pipe.

  • 10:44:22

    REHMHina Shamsi.

  • 10:44:24

    SHAMSII think that the last point that Scott made is a very, very important one. John Brennan, the president's national security adviser himself recognized that we are establishing a precedent that other nations are going to follow, and not all of those nations are countries who put the kind of premium that we do on protecting human life. So China, Russia, Iran, other nations may not use -- I mean, the United States has an excuse, but it certainly shouldn't have the United States as an example and a justification for their own violations of international law.

  • 10:45:01

    SHAMSINo president, I said before, but also no nation should be able to have the power to unilaterally declare individuals as enemies of the states and order their extra-judicial killing in places outside of armed conflict without disclosure of the legal standards, without complying with the limitations placed by international law. That's the kind of power that we would, in previous years, have argued as dangerous, we would have rejected, and we should not be accepting it now.

  • 10:45:31

    REHMShuja.

  • 10:45:32

    NAWAZI want to introduce another element which has been used sometimes to justify these operations, and that is the concept of ungoverned or ungovernable spaces. And FATA is a good example of that. As it is often said, it's outside the orbit of the Pakistani administration. Indeed, within Pakistan, it's still referred to by the majority of people as Ilaka Ghair or foreign land where the rules of Pakistan don't apply. But there is civilian presence, and there is a military presence there and an attempt to govern.

  • 10:46:09

    NAWAZNow, can we assume from the outside that a country, say, the United States has the right to decide when a country is not doing a good enough job of governing a space, and therefore the U.S. has or someone else has a license to go in? And using Scott's example, the Chinese have been very unhappy that some of the Wiegers have obtained training in FATA. Would the Chinese, despite their longstanding relationship with Pakistan, be justified in seeking out these people through this remote-controlled mechanism and doing them in simply because they post a potential threat to the Chinese state?

  • 10:46:51

    REHMJohn Bellinger.

  • 10:46:52

    BELLINGERWell, the answer -- I think the U.S. government would say there is an answer to that, one, if the country involved, Pakistan, consents to the use force, either by the United States or by China. Even if some of the Pakistanis believe this is a non-governed area, it is, in fact, part of Pakistan. If the Pakistani government consents to an outside country's use of force against al-Qaida members, that's permissible under international law. If Pakistan were not to consent, then the argument becomes more complicated.

  • 10:47:22

    BELLINGERA country has a right to defend itself, but it would have to be shown that that group, whether they are Wiegers or they are al-Qaida in Pakistan, was, in fact, launching attacks from that space.

  • 10:47:35

    REHMCan someone answer a technical question for me? What is the range of these drones, Scott?

  • 10:47:43

    SHANEI don't have the actual, you know, miles range in my head, and some of that stuff is secret. But the fact is that they can go for hours and hours, and that one of their big advantage is -- one of the things that U.S. officials talk about -- is that they can loiter for many hours over, say, a compound in the tribal areas and project very clear video images so that the -- unlike in traditional war setting, the operators can watch people come and go and form a, you know, an opinion as to whether this is a terrorist camp or something else.

  • 10:48:22

    REHMAll right. Let's go to Tampa, Fla. Good morning, Robert.

  • 10:48:27

    ROBERTGood morning, Diane. I love your show so much. Thank you so much for having it.

  • 10:48:29

    REHMThank you.

  • 10:48:33

    ROBERTMy question is -- well, first, my statement is it seems troubling to me, and it's probably more troubling to Pakistanis, Afghans and Yemenis, but that these drone strikes seem to be killing more and more civilians as time passes probably because drone strikes have increased. But my question is, when do we decide as a government that, you know, the cost of the civilian lives are outweighing the benefits of any actual or existential plots that we do diminish by using our drones?

  • 10:49:04

    REHMShuja.

  • 10:49:05

    NAWAZI think that has been established now that there are not only collateral civilian deaths, but there are immediate civilian deaths, meaning the families of some of the people that are considered enemy combatants. That has all been established. But to get back to John's earlier point, as of 2011, the government of Pakistan has officially asked the U.S. to cease and desist from drone strikes publicly and privately. So as of 2011, the United States is mounting drone attacks on Pakistani territory against the wishes of the government of Pakistan.

  • 10:49:47

    REHMAnd joining us now is Congressman Dennis Kucinich. Good morning to you, sir.

  • 10:49:54

    REP. DENNIS KUCINICHHi, Diane. It's good to be with you.

  • 10:49:56

    REHMThank you. You want to make a comment?

  • 10:49:59

    KUCINICHYes. It's imperative that Congress learns the legal justification for these drone strikes. The administration has -- basically has kept it secret. What stops any other country from being able to send drones over our country, just a fact of a counterattack? What -- we're setting a precedent that is going to result in a proliferation of war forever.

  • 10:50:22

    KUCINICHAnd unless we stop these drone attacks, get the justifications for the ones that have been committed, we are on a new threshold, entering a brave, new world where we are mindlessly walking to the graveyard of history pretending that we can't bring our -- upon ourselves a calamity by this unjustified and unparalleled use of power.

  • 10:50:45

    REHMComment, John Bellinger.

  • 10:50:47

    BELLINGERWell, I think that, although I would not go so far as the congressman say that we ought to stop, I think he raises some extremely important points that the administration is beginning to focus on, which is the precedent that we are setting. And what is sauce for the goose is sauce for the gander. We are opening up this world of use of drones.

  • 10:51:06

    BELLINGERAnd if we don't clearly state what the parameters are for the use of drones, as to what is acceptable and what is not, when, in fact, Russia or China or someone else uses drones, we won't have a leg to stand on. The administration, I think, is waking up to that and is trying to be clearer about the narrow, narrow set of circumstances in which drones could be justified. The legal basis, though, I think is a good point.

  • 10:51:29

    BELLINGERThe administration that's widely reported did prepare a classified opinion in the Justice Department, justifying the killing of American citizens, which raises -- in addition to the questions about use of drones generally, the constitutional issues relating to the killing of American. That opinion has not been released. It, interestingly and ironically, it's widely reported that it was prepared by two academics, who were then in government, who would had been amongst the leading critics of the Bush administration's war on terror.

  • 10:52:01

    REHMAny further comment, Congressman?

  • 10:52:05

    KUCINICHWell, I'm taking this issue to the floor of the House today. It's very important that we begin to get accountability here. I mean, a single strike by a country into another country is a basis for a war, and we are setting the stage for broad warfare. Congress isn't even involved yet. I hope to change that.

  • 10:52:23

    REHMCongressman Dennis Kucinich from the 10th Congressional District of Ohio. Thank you for joining us, sir.

  • 10:52:32

    KUCINICHThank you.

  • 10:52:33

    REHMAnd let's go back to the phones, to Birmingham, Ala. Good morning, James.

  • 10:52:41

    JAMESGood morning, Diane. I have a question that's a follow-up of an earlier question by you concerning the range of drones. And that is, when we leave Afghanistan, what is the technical feasibility of launching drones to attack targets in Afghanistan, say, from aircraft carriers in the Indian Ocean or from long-range bombers?

  • 10:53:18

    REHMAnd before we get an answer to that, let me just remind you, you're listening to "The Diane Rehm Show." Scott Shane.

  • 10:53:29

    SHANEWell, the drones in Pakistan were originally flown from a -- mostly from a Pakistani airbase, a sort of, you know, hidden airbase in Pakistan that was pro-test in 2011, and our understanding is that they're often now flown from Afghanistan. You know, the evidence is that we would probably be able to fly drones from Afghanistan for quite a few years to come, probably after the withdrawal -- the scheduled withdrawal of U.S. troops in 2014.

  • 10:53:58

    SHANEBut it is true that you need bases to fly these drones from, and there are, I think, about a dozen now bases that the U.S. has to fly drones out of. So it's, you know, again, this is sort of technology that's taken on a life of its own and is expanding to various parts of the world, you know, to some degree without a full public discussion or debate.

  • 10:54:24

    REHMHina Shamsi.

  • 10:54:26

    SHAMSIDiane, I just wanted to remark on how astounding it is that we're having this conversation. The nation is able to have some limited conversation about the existence of this targeted killing program, but the government has still refused to acknowledge officially that the CIA is engaged in it. We have a very important date coming out in our Freedom of Information Act lawsuit here in New York, seeking the Office of Legal Counsel memo justifying the killing of U.S. citizens and other information.

  • 10:54:59

    REHMAnd what date is that?

  • 10:55:02

    SHAMSIJune 20 is the date by which the court has ordered the government to say one way or the other what its response is going to be to our lawsuit, and whether or not it's actually going to disclose the information that we have requested. In an unusual move, the government through -- at the request of the Department of Justice, at the request of the attorney general, has asked for extensions on its disclosure obligation, telling the court that, at the very highest levels of the executive branch, there are discussions taking place about what disclosure will be.

  • 10:55:36

    SHAMSIAnd we hope that there will be meaningful disclosure because the reality is that, until now, without acknowledging officially that the targeted killing program exists, we have the government shielding controversial decisions from public debate and distorting the public's debate in ways that don't serve transparency or our democratic values. When reporters receive information anonymously or officials make speeches, they're controlling the facts that they tell the public...

  • 10:56:10

    REHMAll right...

  • 10:56:10

    SHAMSI...and how they tell the public...

  • 10:56:11

    REHMScott Shane...

  • 10:56:12

    SHAMSI...instead of providing information.

  • 10:56:12

    REHM...do you want to comment on that?

  • 10:56:15

    SHANEWell, we actually have our own lawsuit at The New York Times, trying to get a hold of that Office of Legal Counsel memo that's behind the killing of Anwar al-Awlaki. One of the ironies of the situation is that President Obama made a very controversial decision against the advice of six former CIA directors to make public the Office of Legal Counsel memos on interrogation prepared under his predecessor, President Bush. But, you know, in this case, he's not willing to order the same disclosure for his own memo.

  • 10:56:54

    REHMWell, I have to leave it there and rely on Congressman Kucinich to carry this discussion forward. Thank you all so much. Scott Shane of The New York Times, John Bellinger -- he's a partner in the law firm of Arnold & Porter, former legal adviser to the National Security Council during the Bush administration -- Shuja Nawaz, director of the Atlantic Council South Asia center, Hina Shamsi, director of the national security project at the ACLU, thank you, all.

  • 10:57:38

    SHANEThank you.

  • 10:57:38

    NAWAZThank you.

  • 10:57:39

    REHMAnd thanks for listening. I'm Diane Rehm.

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