11/06/15 – Marjorie Cohn – The Scott Horton Show

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All right, you guys, welcome back to the show.
I'm Scott Horton.
It's my show, The Scott Horton Show.
Next up is Marjorie Cohn.
She is a professor at the Thomas Jefferson School of Law and former president of the National Lawyers Guild, the author of quite a few books and writing here for Truthdig.
It's the spotlight today on Antiwar.com.
Drone papers revelations are a cry for ending the slaughter.
Marjorie's reaction to the huge scoop by The Intercept, the drone papers report, what about ten stories they put together about two weeks ago there?
It's the spotlight again.
Did I mention that's the spotlight today on Antiwar.com?
Welcome back to the show, Marjorie.
How are you?
I'm fine, Scott.
Thanks for having me.
Very happy to have you here.
And to give you a chance to tell the people what you think about this, I guess first and foremost, what did you learn, new factual stuff, or maybe what you thought that's now been confirmed, or what do you think is important in those drone papers here?
Well, some of it we already knew, but it does confirm that Obama is violating the law.
The Geneva Conventions and the U.N.
Charter, both treaties the United States has ratified, making them part of U.S. law under the Supremacy Clause of the Constitution.
And also we learned about the kill chain that decides who will be targeted.
They put people on baseball cards.
The source of this revelation did not want to be named because of the Obama administration's vigorous prosecution of whistleblowers.
He's a member of the intelligence community.
And he described this kill chain as an outrageous explosion of watch listing, of monitoring people and racking and stacking them on lists, assigning them numbers, assigning them baseball cards, assigning them death sentences without notice on a worldwide battlefield.
It was from the very first instance wrong.
And the drone papers also talk about the very high number of civilian casualties.
You know, the Obama administration minimizes the civilian casualties.
In fact, they've lied about civilian casualties.
John Brennan, the CIA director who used to be Obama's counterterrorism advisor, falsely claimed in 2011 that no civilians had been killed in drone strikes in nearly a year.
And so you have things like in one campaign called the Operation Haymaker in Afghanistan, in a five-month period, almost 90% of the people killed in drone strikes were not the intended targets.
And it also talked about the, although Obama has said he prefers capture, and I would rather use the word apprehension because animals are captured and people are not, but he prefers capture to killing.
It turns out that that is not what the administration has been doing.
In fact, Obama has only added one detainee to Guantanamo, and of course now he's trying to close it.
But a 2013 study by the Pentagon's Intelligence Surveillance and Reconnaissance Task Force, which is cited in these drone papers, said that kill operations significantly reduced the intelligence available from detainees and captured material.
And this task force recommended capture and interrogation rather than killing.
So there are a number of things we've learned.
In terms of the illegality, the United States is involved in armed conflict, and armed conflict is a term of art under international law.
The U.S. is involved in armed conflict in Iraq and Afghanistan, so the Geneva Conventions have to be applied, and they say that only combatants can be targeted, not civilians.
Now, for an armed conflict, the requirements for an armed conflict under international law are an organized armed group engaging in fighting of certain intensity, command structure, rules, military training, organized acquisition of weapons and communications infrastructure.
But legal scholars agree that the war against Al-Qaeda is not a, quote, armed conflict, unquote, under international humanitarian law, and the U.S. is not involved in armed conflict in Pakistan, Yemen, and Somalia.
And therefore, the law enforcement model must be applied to assess the legality of those actions, and that law enforcement model limits the use of lethal force to situations where there's an imminent threat to life and nonlethal measures would be inadequate.
Now, in 2013, when Obama gave a speech at the National Defense University and released a fact sheet, he said that the target must pose a continuing imminent threat to U.S. persons before lethal force may be used.
But not only has Obama waived that imminence requirement in Pakistan, but the drone papers say that the target need only present a threat to U.S. interest or personnel, no imminence required.
And the other thing we learned from the drone papers is that once the president signs off on a target, U.S. forces have 60 days to execute the strike, and you can't say that a 60-day period meets this imminence requirement.
So both in Iraq and Afghanistan, where we're involved in armed conflict, and in Pakistan, Yemen, and Somalia, where we are not involved in, quote, armed conflict, unquote, under international humanitarian law, Obama's policy of targeted killing by drones and other methods violates the law.
And now, where the New York Times had reported that before about imminence, it had been a joke, right, that they had redefined imminence to mean some other word's definition, but not imminence.
But what you're telling me is that now they've just dropped that.
That's what it says in these drone papers, yes, that they've dropped imminence.
They're not just reinterpreting it.
They're just over it.
But you're saying the Geneva Conventions specify it better be imminent or you have no excuse.
No, the Geneva Conventions don't talk about imminence.
They talk about that only combatants can be targeted, not civilians.
But if it's not a, quote, armed conflict, unquote, under international law, which it's not in Pakistan, Yemen, and Somalia, then we use the law enforcement model, and the law enforcement model requires that there be an imminent threat to life and that nonlethal measures would be inadequate.
And also, a spokesperson for the National Security Council told The Intercept that the guidelines that Obama – he just released the fact sheet.
The guidelines are still secret.
But in 2013, those guidelines about continuing imminent threat are still in effect, which means that he's even violating his own guidelines.
He's also waived the imminence threat in Pakistan.
So, I mean, you have a situation here, Scott, where untold numbers of civilians are being killed, and in my book, Drones and Targeted Killing, there is an essay from a person from the Bureau of Investigative Journalism out of London, which is the premier agency for documenting civilian casualties, and they talk about how the Obama administration vastly under-reports the civilian casualties when they report them at all.
Well, we know it's thousands, at least, from, yes, Chris Woods and others.
Right.
Chris Woods works with the Bureau of Investigative Journalism, actually.
But it's really important to have accurate counts, not just so that Americans will know that we have this illegal, immoral, and ineffective policy.
I mean, it's creating more martyrs, and even our own administration says that.
Michael Flynn, who is the former director of national intelligence, he says that the drones make the fallen into martyrs.
They create a new reason to fight us even harder.
But also, we need to have accurate civilian casualty counts for compensation for the victims and to shine a light on this very secret program.
And that's why what the whistleblower revealed is so important, these drone papers, because it lays it all out.
There are slides.
People ought to go on the Intercept website and look at them.
They're quite astounding.
And this whistleblower, this very courageous whistleblower, joins the ranks of Edward Snowden, Chelsea Manning, John Kiriakou, and many, many others.
Yeah, absolutely.
I agree with that.
And something else that you kind of referred to there that's certainly in here is the normalization of this assassination program, where this is just kind of a blasé thing that they do every day after lunch or whatever, and nobody cares, it doesn't matter.
The criminality goes unchecked for years on end and becomes part of who we are, such as our society is a single thing, the way people define it.
It's a real important change that we've undertaken here, and pretty far down the path we've already gone.
Right.
Let me just tell you one more thing, Scott, and that is that drone pilots, even though they operate the drones thousands of miles from their targets, many of them are getting PTSD.
Some are refusing to fly the drones.
And in September, the Air Force Times ran an historic ad paid for by 54 U.S. veterans and vets organizations, urging Air Force drone operators and other military personnel to refuse orders to fly drone surveillance and attack missions.
That's a really, really big thing.
And this source that turned over the drone papers in The Intercept said, we're allowing this to happen, and by we, I mean every American citizen who has access to the information now but continues to do nothing about it.
And that's why we really need to take this information to heart.
Not only is it illegal and immoral, it's not even making us more safe.
They're killing people rather than getting intelligence from them.
They're creating martyrs when they have what is called a double tap.
They drop a bomb, and then when people come in to rescue the wounded, they kill the rescuers.
And then when they mourn the fall of the funeral.
Like Eric Rudolph, the abortion clinic bomber.
Right.
They go to the funerals, and they bomb.
This is our government, bombs the mourners at the funerals.
And if you think that endears people to us and wins their hearts and minds and makes them not want to do us harm, then I think that you're mistaken.
Yeah.
Well, in fact, David Gregory said to Leon Panetta back when he was the head of the CIA on Meet the Press, he said, you know, and I was surprised this made it to Meet the Press, jeez, you know, there are a lot of reports make it seem like every time we drop a bomb on al-Qaeda in the Arabian Peninsula there in Yemen that they just grow bigger and bigger.
So what about that?
Panetta says, hey, look, these are the tools we have.
So these are the tools we're going to continue to use, or something like that, whatever.
Job security for the CIA and more terrorism for the rest of us, I guess, Marjorie.
Yes, and enriching the defense contractors.
I mean, Scott, if you really want to prevent terrorism, and this whole thing about a war on terror is a misnomer, terrorism is a tactic, it's not an enemy, you don't declare war on a tactic.
But if you want to keep Americans safe, we have to assess our foreign policy and ask ourselves why we have 800 military bases in other people's countries, why we are illegally invading countries, illegally changing their regimes, killing thousands of their people, indefinitely detaining them at Guantanamo, torturing people, and uncritically supporting other countries that illegally occupy other lands.
And then you realize why people want to do us harm.
And until we change those policies, we're not going to be safe from terrorism.
This Band-Aid work where we go in and just kill people willy-nilly is not only not going to make us safer, it's going to make us less safe.
All right, y'all, that is the great Marjorie Cohn.
She is writing, again, at truthdig.com.
She teaches law at the Thomas Jefferson School of Law in San Diego.
And her article, Drone Papers Revelations, Our Cry for Ending the Slaughter, is the spotlight today on antiwar.com.
Thanks again, Marjorie.
Thank you so much, Scott.
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