In new reports two human rights groups, Amnesty International and Human Rights Watch, challenge the Obama administration’s use of drone strikes. The reports which are based on first hand accounts from northern Pakistan and Yemen documenting civilian casualties and the ongoing impact the killings in the regions. Last week a UN human rights investigator estimated that 2,200 people have been killed in drone strikes in Pakistan over the last decade. In May President Obama outlined this country’s policies for using drones. These policies included ‘near- certainty’ that no civilians will be killed or injured. Please join Diane and her guests to discuss the U-S use of drones.

Guests

  • Shuja Nawaz director, South Asia Center of the Atlantic Council; author of "Crossed Swords: Pakistan, its Army, and the Wars Within."
  • C. Dixon Osburn director of law and security, Human Rights First.
  • Christine Fair assistant professor, Georgetown University's security studies program; fellow at West Point's Combating Terrorism Center.
  • Mark Mazzetti national security correspondent, The New York Times; author of "The Way of the Knife: The CIA, a Secret Army, and a War at the Ends of the Earth."

Transcript

  • 10:06:53

    MS. DIANE REHMThanks for joining us. I'm Diane Rehm. Pakistan's Prime Minister Nawaz Sharif meets with President Obama today. Since taking office in June, he's been an outspoken critic of U.S. drone strikes. Those strikes have drawn new attention following reports earlier this week of civilian casualties in both Pakistan and Yemen.

  • 10:07:18

    MS. DIANE REHMJoining me to talk about the many questions related to the use of drones and their counterterrorism effectiveness: Mark Mazzetti of The New York Times, Shuja Nawaz of the Atlantic Council, Dixon Osburn of Human Rights First, and, from a studio at WCPN in Cleveland, Christine Fair, assistant professor at Georgetown University's security studies program. I'm sure many of you will want to weigh in. Join us, 800-433-8850, your email to drshow@wamu.org. Join us on Facebook or Twitter. Welcome to all of you.

  • 10:08:05

    MR. MARK MAZZETTIGood morning.

  • 10:08:05

    MR. SHUJA NAWAZThank you.

  • 10:08:06

    MS. CHRISTINE FAIRGood morning.

  • 10:08:07

    REHMGood to have you with us. Dixon, give us the gist of the two reports released.

  • 10:08:16

    MR. C. DIXON OSBURNWell, there were two reports released yesterday, one by Amnesty International, the other by Human Rights Watch. The report by Amnesty focuses on drone strikes in North Waziristan and Pakistan, home to about 840,000 people. And what they have reported is that the United States has launched somewhere between 330 and 374 drone strikes, mostly between 2009 and present, with a slight down tick this year. There are various estimates as to how many people have been killed by these drone strikes. The government of Pakistan says that it's been about 2,200 people killed.

  • 10:08:50

    REHMCivilians?

  • 10:08:52

    OSBURNThey don't distinguish between civilians and combatants. This is just total numbers of people killed, but there are independent research that shows that between 20 and 25 percent of those killed in these strikes are civilians. And part of what the Amnesty report does is that really the core of it highlights several stories, one of them of a woman, Mamana Bibi, a 68-year-old grandmother who was picking okra in her field for dinner on a clear, blue-sky day, and a hellfire missile came raining down and blew her to bits and pieces in front of her grandchildren.

  • 10:09:32

    OSBURNSo the gist of the Amnesty report is calling into question a number of things the Obama administration has said, that they're only targeting al Qaida operatives -- that doesn't seem to be the case in this instance -- and that we're complying with the rule of law, which, again, doesn't seem to be apparent here. Human Rights Watch, in its report, picks up on the same sort of themes.

  • 10:09:55

    OSBURNThey focused on drone strikes in Yemen. They discovered that there have been at least 81 targeted killings through drone strikes in Yemen and that approximately 473 people have been killed in Yemen, again, mostly from 2009 to present, again, with a slight down tick this year. But they went through a number of these strikes and, again, documented that it appears that the United States is not complying with basic law.

  • 10:10:23

    REHMWow, that's quite a report. Dixon Osburn is director of law and security at Human Rights First. Christine Fair, these killings are alleged to be possibly unlawful. Explain what constitutes a lawful killing.

  • 10:10:51

    FAIRWell, first I do want to take issue with the way in which the Amnesty report presents this killing as fact. Unfortunately, the Amnesty report suffers from many of the same problems of an earlier report that was issued by Stanford and NYU law schools. And that's namely that they want to discount everything that the U.S. government says, but they want us to believe everything that their interlocutors say. When you read the Amnesty report, there are several features of that account that do not seem consistent with the way actually drones operate.

  • 10:11:25

    FAIRSo, for example, one of the young men who allegedly observed this alleged drone strike -- and I'm going to continue to call it alleged drone strike because Amnesty doesn't actually provide evidence that she was killed by a drone. One of the young men that has reported his witnessing the attack says that the drones were flying in tandem. Now, drones don't actually fly in tandem. It's not possible for them to fly in tandem because of their, you know, there's no avionics that allow the pilots who are very far from the drones to deconflict the airspace.

  • 10:12:01

    FAIRSo if you see aircraft that are flying in tandem, it is most certainly not drones. Drones do layer, but they are layered at altitudes that do not have this deconflicting problem. I think the most persistent and aggravating problem with the Amnesty report, as well as the NYU/Stanford report, is that they provide photographs, for example, of missile fragments. But those pictures themselves do not constitute proof that the individuals in question were killed by a drone or by a hellfire missile.

  • 10:12:37

    FAIROne of the persistent failures of these human rights organizations is to bring into the discussion munitions effects experts and ordinance experts. So as far as I'm concerned, when I looked at the Amnesty report, I saw many things that seemed to be strikingly inconsistent with what we know about drones. And so, leaving aside, however, the specifics of this individual who died and the claims made about how she died, going to your point about legality and, you know, as an American citizen, I don't feel comfortable with the legal framework that's currently being used.

  • 10:13:16

    FAIRWe are currently using the authorization for the use of military force from 2001. It authorizes the killing of al-Qaida and associated groups. And I think here the work of Mark Mazzetti, Jonathan Landis, I think, is really important. We're not really targeting al-Qaida or even -- at least in the Pakistan context -- groups that I feel comfortable calling allied to al-Qaida.

  • 10:13:43

    FAIRWhat we've essentially been doing in recent years is we've been targeting Pakistan's terrorists as a part of a quid pro quo. You know, they're called goodwill kills. How many of Pakistan's terrorists do we have to kill before we can take out our own? So even though I think drones, for a number of reasons, are the least-bad option -- and I may add, Amnesty International's own report attests to that.

  • 10:14:05

    FAIRWhat is certainly clear -- that Pakistan's own military operations, when they've undertaken them, have been absolutely devastating by orders of magnitude, even by their own report drones are the least -- how do I say? The negative consequences of drones are far fewer than the available options on hand.

  • 10:14:25

    REHMAll right.

  • 10:14:26

    FAIRBut despite that, the legal framework disconcerts me.

  • 10:14:29

    REHMChristine Fair is assistant professor at Georgetown University's Securities Studies program. She's a fellow at West Point's Combating Terrorism Center. Dixon Osburn, can you speak to Christine's criticisms of the evidence that these human rights organizations have presented?

  • 10:14:57

    OSBURNHaving not done the research myself, what I can do is report what they put into the report. Amnesty says that it took great care to have independent investigators contact each of the people that is then reflected in this report. So they tried very hard to get to the truth.

  • 10:15:14

    OSBURNAnd they presented the questions to the government of Pakistan, to the United States government, provided plenty of opportunity to try to make sure that they got this as accurate as possible. And they note that it's very difficult because this is a very violent region and that those who came forward to provide information to them faced potential reprisals.

  • 10:15:35

    REHMI'm interested in Christine's comments about the in-tandem flight of -- or patterns of flight of these so-called drones.

  • 10:15:46

    OSBURNYeah, I don't know the technology of in-tandem flights and know what delivered the hellfire missiles in Pakistan in this particular case.

  • 10:15:56

    REHMAnd the other question, she also argues that drones become the least-bad option.

  • 10:16:04

    OSBURNWell, I think there we have to be careful. There's something very alluring about drones because they do allow us to go into areas where our soldiers would not be able to go without great risk to life. Therefore, we need to take a special care that those that we are targeting are either part of an armed conflict and are engaging in hostilities against us or, if there's not a war, that they are posing an eminent threat to U.S. interests. And it is not clear from either the Human Rights Watch report of the Amnesty report that the United States in compliance with those standards.

  • 10:16:41

    REHMChristine, how do you respond?

  • 10:16:45

    FAIRWell, actually my concern is not about the threat of danger posed to American troops. My concern is actually about Pakistanis. One of the consistent voices that has been ignored -- and I'm going to argue, deliberately -- by human rights organizations, are those Pakistanis who are pro-drone. I know several of them. In fact, it's been my interactions with pro-drone Pakistanis that was pivotal in shaping and, quite frankly, shifting my own views around 2009, for being anti-drone to at least recognizing their value.

  • 10:17:19

    FAIRIndividuals who actually live in FATA -- and I may add, that notwithstanding Amnesty's claims, it's actually very difficult to access individuals at the site of drone impact for a number of reasons. Not the least of which is that the Pakistani government does not allow it. It is illegal for foreigners to go there, and even for Pakistanis to go there who are not themselves tribal. And so this idea that the principal obfuscation is happening on the side of the Americans is really, I think, disingenuous. Both parties have a lot to hide here.

  • 10:17:53

    FAIRBut my concern is that when you talk to Pakistanis who live close to the various terrorists elements that live in the tribal areas, they are terrified. And they will say that there's really nothing else to protect them from the predations of these groups. And I may add Amnesty does draw attention to the predations of these various terror groups. They note that the Pakistani State cannot protect them. There is a colonial-era legal provision which essentially means there are no police in FATA, in the tribal areas.

  • 10:18:27

    REHMAll right. And we'll take a short break here. Christine Fair is at Georgetown University's Securities Studies program. Short break. When we come back, we'll talk more about Pakistan, Yemen and drones.

  • 10:20:02

    REHMAnd welcome back. President Obama is meeting today with Pakistan's Prime Minister Nawaz Sharif. One of the issues sure to come up are the ongoing drone strikes. Mark Mazzetti, tell us what President Obama has said about these drone strikes.

  • 10:20:27

    MAZZETTIWell, he actually hasn't -- excuse me -- hasn't said all that much. He gave a speech in May which talked about some changes to the policy. And he talked about how there were new restrictions put on drone strikes, namely that they have to be -- the target must be a continuing and imminent threat. He said there needs to be almost an impossibility of doing a capture operation, so therefore they do these targeted killings. And finally that there has to be near certainty of no civilian deaths in these.

  • 10:21:02

    MAZZETTIBut since then, we've heard almost nothing from the president. And it's very difficult -- I mean, one of the interesting things in the debate that Dixon and Christine were just having is that, you know, just finding out basic facts about these strikes is almost impossible because A. they're in very remote places. There is both the American and the Pakistani and the Yemeni government, they'll talk about it. So we rely on journalist independent groups to just sort of get basic facts.

  • 10:21:30

    MAZZETTIPresident Obama, since the May speech, has really spoken very little about this. It was very interesting. In August we had this flurry of drone strikes in Yemen. There was about 10 in two weeks surrounding a threat that led to the closure of American embassies in the Middle East. And President Obama was asked about the drone strikes in a press conference, and he said nothing. So we -- this certainly...

  • 10:21:53

    REHMWell, I mean, how did he respond to the direct question?

  • 10:21:58

    MAZZETTIHe said, I'm not going to talk about it.

  • 10:21:59

    REHMOK.

  • 10:21:59

    MAZZETTIAnd so...

  • 10:22:00

    REHMI just wanted to know that.

  • 10:22:01

    MAZZETTI...you know, and he said, you know, so certainly this has not signaled a new age of transparency on the part of the president or the American government just to get the basic information about what's happening in these countries.

  • 10:22:13

    REHMAnd turning to you now, Shuja Nawaz, you just heard Christine Fair say that many Pakistanis are pro-drone. I wonder if that's consistent with your understanding and also how that fits in with these new reports from two human rights organizations.

  • 10:22:39

    NAWAZI don't disagree with Christine at all, but many more Pakistanis are against drones largely because successive governments, both military and civilian, have been playing up this issue. And the fact that Prime Minister Nawaz Sharif during his visit in Washington has repeatedly talked about this issue, even as recently as yesterday at the U.S. Institute of Peace, is probably because he's playing to that domestic audience.

  • 10:23:12

    NAWAZHe's trying to assert a position which he thinks is going to be popular. But I entirely agree with Christine that there are people, particularly in the FATA region itself who resent the presence of foreigners because they have brought all this warfare and the misery on them.

  • 10:23:30

    REHMWho are these foreigners?

  • 10:23:32

    NAWAZThese are -- the foreigners are originally members of al-Qaida. And then obviously groups that are using the FATA region, particularly North Waziristan as a launch pad for attacks on the coalition forces in Afghanistan. Most of these people come in, they pay enormous rents -- because they're constantly on the move, they pay enormous rents to locals to take over their property. And those are the properties that come under surveillance and quite often may well become the targets of attack from U.S. drones.

  • 10:24:08

    NAWAZSo there is opposition within the community, but Chris is also right in saying that nobody knows for sure exactly what's going on because the U.S. government has been mum on this except for that one mention by President Obama when he tried to define, you know, the nature of the strikes, you know, when they pose an imminent danger, and one slip up by Sen. Dianne Feinstein when she mentioned the use of drones. Everyone pretends as if they don't exist.

  • 10:24:40

    REHMAll right. My question to both you and Christine however is, to what extent is there collaboration or even silent acceptance on the part of the Pakistani government for these drone strikes? I'll start with Christine.

  • 10:25:04

    FAIRWell, this is the magical question. What we do know from WikiLeaks is that throughout the last government, at least the prime minister and the president supported tacitly as well as implicitly the drone strikes. And there have been numerous statements, again sort of generals saying things that perhaps they shouldn't have the Army spokes -- the ISPR, which is the PR office of Pakistan's armed forces had to quickly petal back, that suggests there certainly was collusion.

  • 10:25:36

    FAIRWhen I talk to American officials, one of the most unambiguous affirmations of this collusion is a very high ranking official who said in an unclassified forum obviously, that the U.S. Pakistan relationship is improving because quote "they're letting us kill their terrorists." And I think that statement's really important to understand what's happening. And I think Mark Mazzetti's work has really be eye-opening for many people who didn't understand this.

  • 10:26:05

    FAIRWhat we're essentially engaging in is, it's an abacus of killing, a conversion rate of killing. How many Pakistani terrorists, i.e. not terrorists for us but terrorists to the Pakistani state do U.S. drones have to kill to continue to enable the Americans to get shots at terrorists that they want to kill? And so you can sort of imagine the stakes are quite high for Pakistan's army and intelligence, that's really been a free-rider in all of this. They've benefitted from the drones while sustaining criticism.

  • 10:26:36

    FAIRNow what Emerson will say is that the parliament absolutely denounced drones as a violation of their sovereignty. And what I would say and have said to Mr. Emerson, he doesn't understand Pakistan's politics. The parliament, while the elected body and while it should represent the interests of Pakistanis, doesn't really have any say in any of these matters at all. And that's unfortunate but it's also true.

  • 10:26:59

    REHMAll right. Dixon Osburn, I know you want to get in here.

  • 10:27:03

    OSBURNThank you. Gen. Stanley McChrystal and Adm. Dennis Blair have both said that their concern is that even if drone strikes may produce some tactical successes, they may product strategic loss. And part of that is the backlash that they have seen occur. They were specifically talking about Yemen rather than Pakistan. And Greg Johnson, who is an expert on Yemen, says that the number of al-Qaida in the Arabian Peninsula have tripled since the drone strikes have increased in 2009.

  • 10:27:39

    OSBURNSo the question is, now are we producing more enemies than we are killing? And what is the precedent that we are setting? Because that precedent now will have an impact on other nations, think Russia and China, when they get on drones, and who they will consider threats so they will use that technology against.

  • 10:27:58

    REHMMark.

  • 10:27:59

    MAZZETTIJust going back to the issue of Pakistan's government, 'cause this is really one of the most fascinating aspects of this, the -- I mean, really there has been a deal from the beginning. The first drone strike the U.S. carried out was in June of 2004 against a man named Nek Muhammad. And that was in the tribal areas in South Waziristan. And it was basically a -- it was the first time the CIA was allowed access to use armed drones. And Nek Muhammad was far more of an enemy of Pakistan than he was of the United States.

  • 10:28:29

    MAZZETTIAnd the Pakistani government under then-President Musharraf allowed the CIA to carry out these operations. And that was the deal from the beginning. And, you know, it will be publically denied by Pakistan. It will be publically denied by the U.S. It will be done by the CIA under a covert action. And in essence, this deal is in place today. Now, the circumstances in Pakistan certainly have changed.

  • 10:28:53

    MAZZETTIThe political situation's different. There is a civilian government which has to feel -- it feels much more answerable to public sentiment. And so you do see -- for instance, now with Sharif, you know, campaigned on -- one part of his platform was, you know, against drones. I will end drone strikes. And he's going to tell President Obama that today. But that doesn't mean there's also secretly other compliance inside the Pakistani government to these operations.

  • 10:29:20

    REHMInteresting. Shuja.

  • 10:29:22

    NAWAZYes. I think deals have been done and will probably continue to be done. And starting with that very first deal on Nek Muhammad, it was because he had reneged on a peace deal with the Pakistani military that he became the target. And I think there was no tears shed in Pakistan, and particularly among the authorities, when that occurred, although they continue to rail against drones as an infringement of Pakistani sovereignty.

  • 10:29:52

    NAWAZI don't think that will change that reality. But there is another point to keep in mind. 2014 is approaching. The use of drones in Pakistan is likely to disappear over time. So this is probably going to become a nonissue, which is probably why Nawaz Sharif is using it as a political issue to gain some support in his first year or two years in office.

  • 10:30:14

    REHMDo you agree with that, Mark?

  • 10:30:16

    MAZZETTIWell, it'll certainly be interesting that -- I would agree that once there are no American troops or a very, very small number of American troops in Afghanistan, you may see, you know, a significant drop-off of drones. I think the Obama Administration and future administrations are going to try to preserve the right to continue to do these operations. They feel that they may be necessary.

  • 10:30:37

    MAZZETTIIt was interesting, there was a -- you know, President Obama gave this public speech in May which seemed to have, you know, announced that there will be an end to all of this at some point, but just not now. And he, in sort of coded language, talked about how, you know, while there are American troops in Afghanistan, these operations that are under CIA control in Pakistan will continue.

  • 10:30:59

    MAZZETTIAnd basically between the lines what he indicated was that the rules that govern drone strikes in Pakistan, which are far more permissive than they are in Yemen, will continue. In other words, they can continue to do what are called signature strikes. And those signature strikes allow the CIA to carry out an operation, a drone strike, where they don't specifically know who they're killing.

  • 10:31:20

    REHMAnd here to add to the confusion, an email from Mike in Jacksonville, Fla. who says, "Not all civilians in Pakistan are insurgents or terrorists, but all the terrorists and insurgents are civilians. When a pocket of bad guys gets taken out, the guns and other evidence is removed by other bad guys. And then they claim the people were civilians." Shuja, how do you respond to that?

  • 10:31:58

    NAWAZAgain, it's almost impossible to investigate these. And I go back to something that Christine Fair said at the outset -- and anyone who's tried to go into FATA will tell you -- it's almost impossible to go in there because the Pakistani military will not allow journalists and other investigators to go. There's one man in Pakistan who has tried to photographically document all these drone strikes. And he finds himself under a lot of pressure all the time because of his work. There just isn't the evidence that is necessary to establish the facts on the ground.

  • 10:32:35

    REHMShuja Nawaz, he's director of the South Asia Center of the Atlantic Council and author of the book titled "Crossed Swords: Pakistan, its Army and the Wars Within." And you're listening to "The Diane Rehm Show." Dixon Osburn, considering what you've just heard everybody say, namely how difficult it is to get at real evidence, how can these human rights groups come out with such what they call strong evidence that the U.S. has killed civilians?

  • 10:33:20

    OSBURNWell, both of the reports, I think, are quite moderate in what they've reported. And they have called on the U.S. government, the Pakistani government, the Yemeni government to do independent investigations to verify the facts that they've been able to uncover.

  • 10:33:33

    REHMBut how can they do that if they cannot get in there?

  • 10:33:37

    OSBURNI think the flip question or the answer on the other side of this is that you have to have specific intelligence in order to target somebody. And what they're raising is the question that the United States' intelligence seems to be failing in at least some situations. So if you're saying that the U.S. government doesn't have the intelligence that this really is an individual that is posing a specific and imminent threat against the United States, then why are we targeting them?

  • 10:34:08

    REHMMark.

  • 10:34:10

    MAZZETTIWell, I will applaud anyone who's going to try to do this work of getting basic fact, getting information about what's happening. I think there needs to be far more of it, and I think that it needs to be -- you know, if governments don't talk about these things, it's, you know, journalists and independent organizations and academics need to do more research.

  • 10:34:30

    MAZZETTIWe all agree that, you know, this is -- if you're just looking at the Pakistani travel areas, but the very same thing can be applied to parts of Yemen, you're talking about some of the most remote and hostile areas for independent experts to do research. And that's one of the reasons why I've called -- you know, drones are the ultimate weapon of a secret war because they are used in areas that are very difficult to not only get information about the strikes, but they allow governments to deny their existence or deny that the strikes actually happen.

  • 10:35:02

    REHMAll right. I'm going to open the phones now. We're going first to Hampton Roads, Va. Hi there, Carl, you're on the air.

  • 10:35:14

    CARLThanks for taking my call.

  • 10:35:15

    REHMSurely.

  • 10:35:17

    CARLI raised a question. We are attacking enemies of the insurgents, or we are attacking enemies of this country? That's number one. And number two is, the more we attack folk whose identities are questionable -- we don't know if they have friend of folk -- are we not opening ourselves to being attacked on the homeland? Let us not forget the technology we have given to, loaned to, sold to, and developed in other countries. Are we not putting our citizenry at risk?

  • 10:35:56

    REHMMark, do you want to take that on?

  • 10:35:59

    MAZZETTISure. You spend two hours on those questions which are, you know, very interesting. I mean, on the first question, Christine raised the point earlier, it's -- you know, who are the groups that are being targeted in -- if you just take Pakistan's tribal areas? It's difficult to know there's clearly a case where there are people that the United States has identified as threats to either the United States or to American troops in Afghanistan. And those are part of the targets, if you will.

  • 10:36:32

    MAZZETTIBut there's also groups that Pakistan is far more worried about than the United States. For instance, the Pakistani Taliban called the TTP have launched attacks inside Pakistan. They have been targeted as well in these strikes. And so the -- you know, the drones are hitting enemies of Pakistan. They're hitting alleged enemies of the United States. And how those decisions are made, you know, there's no transparency about that. It's also very hard to distinguish in that area who's working for whom and who's allied with whom.

  • 10:37:06

    MAZZETTIOn the issue of radicalization -- and that's really one of the biggest questions right now is, you know, are you creating more terrorists than you're killing? And this is something that we will -- it will take years to really have solid information. There is anecdotal evidence of it though. And that's something that we all have to keep pressing on.

  • 10:37:27

    REHMMark Mazzetti, national security correspondent for the New York Times, author of "The Way of the Knife: The CIA, a Secret Army and a War at the Ends of the Earth." Short break, right back.

  • 10:40:02

    REHMAnd welcome back. As we talk about drone strikes in Pakistan and Yemen, Shuja Nawaz, you wanted to go back to the question of illegality.

  • 10:40:16

    NAWAZThat goes back to the issue of sovereignty. When one country has the right to cross an international border without the express open consent of the country whose border it's crossing, that becomes an international legal issue. Various arguments have been put forward, including the argument of ungoverned spaces, that if you are not able to govern the space which falls within your geographic territory then we will help you govern it by removing the bad guys that are threatening us.

  • 10:40:50

    NAWAZThese legal issues are being debated and have been debated for quite some time. What's going to complicate life, not just for the United States but for everyone, is that the cost or the price of entry into the drone market, the use of drones is going to be dropping dramatically.

  • 10:41:09

    NAWAZAnd as they become commonly used by countries across borders and, as Mark mentioned, the potential for an attack on the U.S. homeland because they're not easily detected and shot down becomes a reality, then many of the issues that the U.S. is now trying to avoid discussing will come back to haunt the U.S. administration.

  • 10:41:34

    REHMDixon.

  • 10:41:36

    OSBURNSovereignty is certainly one of the legal issues. But the other big legal issue is the legality of the targeting itself. And different rules apply on whether or not you're at war or if you're not at war. And the United States has not even been clear yet against whom we're at war. Those who passed the 2001 authorization for use of military force, which Christine raised early on, you know, really thought we were going after the Taliban and al-Qaida and Afghanistan.

  • 10:42:03

    OSBURNAnd yet we have drone strikes that are in North Waziristan. You have drone strikes that are in Yemen and Somalia. And there's an open question if the armed conflict extends there. If we're not in armed conflict, humans' rights law applies, and the standards are much higher to be able to lethally target somebody.

  • 10:42:20

    REHMHere's an email from Mary Ellen O'Connell, professor of international law at the University of Notre Dame. She says, "Under international law, there is no legal right to use a missile against an individual or small groups suspected of criminal conduct when outside an armed conflict zone. Police measures are required in such situations. After 11 years of drone strikes in Yemen, nine years of strikes in Pakistan, it is long overdue for the U.S. to turn to effective and lawful counterterrorism measures." I wonder how you regard that comment, Christine Fair.

  • 10:43:16

    FAIROh, so first of all, I thoroughly agree with that sentiment. And Obama himself has said, when we can capture, that's ultimately preferable. My comments are only going to be pertaining to Pakistan -- I'm a South Asian -- as I don't know Yemen, and I'm not an international lawyer. I do think that we can extend that battle space to Pakistan's tribal areas. And that is exactly where the drones have been limited.

  • 10:43:40

    FAIRThe problem with this idea of effective policing, which I think we would all support, is that Pakistan has consistently chosen to keep this colonial era piece of legislation in place called the Frontier Crimes Regulation. It is a part of Pakistan's constitution. But what that piece of legislation means is that Pakistan's constitution does not apply to the tribal areas. This means that there are no police forces in the tribal areas.

  • 10:44:11

    FAIRNow many people who are not familiar with Pakistan will say, well, there are tribal militias, which are somewhat akin to the posses of the old West. You have the frontier -- you basically -- you have a paramilitary organization that's there. That's not a law enforcement organization. And you have the Pakistan military.

  • 10:44:33

    FAIRI think for those of us who think that the drones are the least bad option -- and I'll certainly -- at least in the Pakistan context -- I think the only way forward in getting out of this problem in Pakistan is for the Pakistani government to get away from this colonial era piece of legislation, fully extend the constitution to the tribal areas. And that means putting into place police forces.

  • 10:44:59

    FAIRNow here's the irony of the drone program. Because of the drone program, high value al-Qaida targets have actually left the tribal areas. And this has actually enabled us to be able to arrest them in places like Karachi and in other major cities of Pakistan such as Lahore. So the positive externality of drones is that those that we really want don't feel safe there, and they've left. But I certainly agree with her sentiment, but I'm going to argue that this is what Pakistan has to do.

  • 10:45:30

    FAIRPakistan basically has to make a strategic choice that it no longer wants to use the tribal areas as a launching pad for militant operations in Afghanistan and in India and do what Pakistanis called mainstream FATA. Until then, the only way to do what she's suggesting, policing operations, is to actually have American soldiers cross in from Afghanistan into Pakistani soil and capture these people. And I think we would all agree that's not possible.

  • 10:45:55

    REHMAnd -- exactly. Mark Mazzetti, the question of legality brings into mind the issue of oversight. What congressional oversight is there, or is there any?

  • 10:46:16

    MAZZETTIWell, there is the Senate in-house intelligence committees which have oversight over the operations of the CIA and therefore have oversight over drone operations -- or the bulk of drone operations, I should say. You know, their meetings are in secret for the most part. Their deliberations are in secret. The CIA briefings to the committees are in secret. And for the most part, the intelligence committees have cheered the drone programs.

  • 10:46:45

    REHMBut, I mean, do they have oversight on each and every use of drones?

  • 10:46:52

    MAZZETTIThey have said -- and I should quote Dianne Feinstein who's the chairwoman of the Senate Intelligence Committee, says that they go to CIA, and they review each individual strike after it happens. Now...

  • 10:47:07

    REHMAfter it happens.

  • 10:47:08

    MAZZETTIYes.

  • 10:47:08

    REHMThere's no approval on it.

  • 10:47:10

    MAZZETTICorrect. Correct. There's no -- they do not go to Congress. They don't go to court in advance of a strike. It is sort of post-facto review of the strikes.

  • 10:47:19

    REHMShuja, to what extent do you believe that each and every strike, before it takes place, is in concert with the Pakistani government?

  • 10:47:34

    NAWAZI don't think that each and every strike is in concert. I think there may be some in which there may be some hints or allegations. But there is a lack of trust between the U.S. and the Pakistani counterparts on the military side. And they're very wary of sharing information because in the past that information has been leaked to the bad guys.

  • 10:47:58

    NAWAZIf there is going to be an amicable solution between the U.S. and Pakistan as a result of Prime Minister Sharif raising it with President Obama, one way may well be to set up a mechanism where you can isolate Pakistani and U.S. military in their border coordination centers. Protect the information so that you can then have a joint decision on targeting, which the Pakistani's have asked for, although they asked for much more. They wanted full control over the drones. And that was surely not possible for the U.S. to give.

  • 10:48:32

    REHMDixon.

  • 10:48:32

    OSBURNThe U.S. is under an obligation to do post-strike reviews, which it has not been doing and is part of why we have a dearth of information about the strikes, who's been targeted and whether or not we've complied with the law. The other question...

  • 10:48:47

    FAIRWe have done reviews.

  • 10:48:48

    OSBURN...the other question...

  • 10:48:49

    FAIRA factual correction. They actually do do those reviews, and that's just factually not correct. Any even the ISI has provided a tape of every strike after the fact. It's not public, but that shouldn't be confused with not doing the reviews.

  • 10:49:04

    OSBURNThe reviews have not been made for those individuals -- the survivors of victims claim that those reviews have not been done. They've been seeking reparations when the strikes have been unlawful. And part of what another government needs to do is be able to provide that information so there can be an independent and transparent review. There's been no independent and transparent review here. I also wanted to comment just on the oversight on the policy side.

  • 10:49:30

    REHMSure.

  • 10:49:30

    OSBURNThere's also policy oversight and what you saw at the beginning of the year is a large amount of pressure put on Obama's administration to explain itself. You had Rand Paul who did the filibuster on the John Brennan nomination trying to get some of the memos out of the department of justice. You had a hearing conducted by Sen. Durbin where Gen. Cartwright testified about his concerns about our current drone operations.

  • 10:49:53

    OSBURNYou had threats from the House Judiciary Committee that they would subpoena the administration for all the legal opinions that are justifying the drone operations. I think that what you may now see with both these two reports as well as the reports from the U.N. Special Rapporteurs is increased pressure again from the Obama Administration to come forward with its actual legal basis.

  • 10:50:12

    REHMMark.

  • 10:50:12

    MAZZETTIYeah, we'll see if that happens. I mean, recall that what Dixon's talking about is earlier in the year the Obama Administration was trying to get a new CIA director in, John Brennan. And the Senate, you know, usually acts when -- you know, sometimes their power is limited, but they have the power over, you know, confirming a nominee.

  • 10:50:30

    MAZZETTIAnd so they held up the nomination in order to get some of those legal memos. They only got some of them. They didn't get all of them. And in the end they gave in, and the Obama Administration, I think, kind of won that battle. There's only certain moments when the administration really does feel pressure to greater -- to be more transparent.

  • 10:50:48

    REHMAnd this is one of them perhaps?

  • 10:50:50

    MAZZETTIWe'll see if this is one of them. And I think another key factor here, which we haven't talked about much, is this U.N. investigation and whether that just -- you know, that will be completed early next year and whether that is another one of these moments that adds to pressure on the Obama Administration.

  • 10:51:08

    REHMShuja, what do you expect?

  • 10:51:11

    NAWAZI don't expect a great deal of moment or movement on this.

  • 10:51:16

    REHMEither now or with the U.N. report?

  • 10:51:20

    NAWAZWell, the U.N. moves at a very slow pace. I've covered the U.N. in my earlier life as a journalist. And to expect the U.N. to move very rapidly, particularly when the security council cannot agree on things, is going to be quite an obstacle. To go back to the U.S.-Pakistan point, I think the drones represent a symptom of what's wrong with that area FATA. Christine also pointed out to the fact that it's been kept as a buffer zone. It's the colonial legacy.

  • 10:51:59

    NAWAZThe government of Pakistan needs to have a plan to actively integrate it into a Pakistan proper, to provide those people with the security that they need and by providing active policing at a better level than they provide inside Pakistan proper perhaps, remove the elements that are finding refuge there. Many of the leaders have escaped into the urban areas of Pakistan. But there are other terrorist groups including those from China and Central Asia that are using it. And there are a whole bunch of Germans that are missing from Germany that are using FATA as a training ground.

  • 10:52:37

    REHMShuja Nawaz of the Atlantic Council, and you're listening to "The Diane Rehm Show." Let's go to Marcus in Ayer, Mass. You're on the air.

  • 10:52:50

    MARCUSYeah, I've just got a couple points. I think it's a misnomer to say that the Pakistani terrorist groups are not in association with al-Qaida. I mean, their fighters and their leaders go between these groups. They share technology with each other. And the reason that we have to use the drone strikes is because the Pakistani government fails to crack down on these groups and use those groups as a proxy toward Afghanistan and India.

  • 10:53:23

    REHMDo you want to comment, Shuja?

  • 10:53:26

    NAWAZWell, it's not clear exactly what the speaker's referring to. There are links between these groups. That's been well established. There's links between the Punjabi Taliban and al-Qaida also. And the Punjabi Taliban have been known, for instance, to have engaged in operations inside Afghanistan, too. There have been reports of that. So there are links of multifarious. And it's very hard to distinguish between the groups in many ways. They work as franchisees for each other.

  • 10:53:58

    NAWAZBut the targeting really is, as Mark's work has shown, is based on profiling the signature strikes. And in that territory, mistakes can be made because everyone carries weapons. And there are lots of young people, the population of about 300,000, by my calculation, between the ages of 16 and 25. And they don't have any job, there is no work opportunity, and, you know, they will get together. And they will run around in pickups, and they look like the bad guys. And maybe they are the bad guys. So every now and then, there will be mistakes.

  • 10:54:37

    REHMShuja, starting with you, and then going to the rest of you, to what extent do you expect these drone strikes to continue after today's meeting with the prime minister of Pakistan? Will they continue at the same pace? Might there be some diminishment? How do you see it?

  • 10:55:01

    NAWAZWell, there has been a decrease in the use of drone strikes. There was a peak a few years ago, and there has been a decrease. I think the targeting is becoming much more deliberate now. I don't expect there to be any radical change in this policy as a result of the meeting. Today I think Prime Minister Sharif will read what he wants to read and make statements that he wants to make for the home audience. The U.S. will probably not say much because that has been the policy. So I expect the drones to continue but diminish overtime as the U.S. footprint in Afghanistan diminishes.

  • 10:55:40

    REHMDixon.

  • 10:55:41

    OSBURNI think the question is, what will happen at the end of 2014 at the end of combat operations in Afghanistan? If we are no longer at war, if the 2001 authorization for use of military force is no longer in effect, it means that the U.S. cannot use that as a legal basis for continued strikes.

  • 10:56:00

    REHMAnd, Christine.

  • 10:56:03

    FAIRYeah, actually I want to very briefly return to the caller's comment. I actually want to push back. It's simply not true that quote "all of these elements are tied in one way to another to al-Qaida." Nek Muhammad, I mean, I think we can really question whether or not he was someone that should have or could have been targeted under the AUMF. And so I think we have to be very clear about who we're targeting.

  • 10:56:27

    FAIRAnd this is actually where Dixon, Mazzetti and I and Shuja, I think, all sort of intersect when it comes to these what's called signature strikes. We don't know who we're killing. And if we are killing terrorists that are mostly Pakistan's problem, that do not pose an imminent threat to American interests either at home or in Afghanistan, I do question their legality. So this idea that they're all shmeared with al-Qaida, I don't think is a very intellectually honest characterization of the myriad groups.

  • 10:56:57

    REHMAnd, yes or no, do you expect the drone strikes to continue at the same pace?

  • 10:57:05

    FAIRWell, they won't be able to, but I will ask the Pakistanis, what is their plan to deal with their terrorist problem...

  • 10:57:09

    REHMAll right. And Mark Mazzetti.

  • 10:57:12

    MAZZETTII agree with Dixon that a far bigger sort of milestone will be the end of 2014 in Afghanistan. I do expect the drone strikes to continue.

  • 10:57:21

    REHMMark Mazzetti of The New York Times, Shuja Nawaz of the Atlantic Council, Dixon Osburn of Human Rights First, Christine Fair of Georgetown University, thank you all. And thanks for listening. I'm Diane Rehm.

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