That is, so far, NOT the question being asked by the Obama administration, the military or most of the Beltway media mavens.

As Wired News points out, “With a wink and a nod from Pakistan, the US government has been carrying on a clandestine drone war over Pakistan for nearly two years. Now the question is whether those operations may expand to include drone strikes to the southern province of Baluchistan, where the Taliban’s Quetta Shura maintains a leadership base.”

Today, as the administration according to news reports, debates the military and political merits of escalation of drone attacks against suspected Taliban enclaves, what’s also not being asked nearly enough is what the moral and legal implications of conducting a covert war on terror by remote control.

Although the conventional wisdom is that drone strikes are a surgically clean, acceptable tactic of counter-terror with minimal “collateral damage”, the reality is quite other-wise, Max Kantar, a human rights investigator and activist, writes, in an important paper titled International Law: The First Casualty of the Drone War.

“The United States,” Kantar argues, citing ‘relevant and uncontroversial legal precedents established by the International Criminal Court”, is “in violation of international law on several counts in regards to its bombings of Pakistan.” Kantar writes:

For nearly four years, the United States has been using unmanned aerial vehicles, also known as “drones,” to repeatedly bomb targets in Pakistan.[1] The drone strikes, operated primarily by the CIA, are reportedly launched with the intention of killing top al-Qaeda and Taliban leaders and holding the Pakistani government accountable. Since the Obama administration has taken office, the U.S. campaign of drone strikes in Pakistan has markedly intensified, consistent with the trends established in the final eight months President Bush’s second term. Although the bombings of Pakistan fall into a much broader strategic U.S. policy in the region, it is the purpose of this analysis to focus solely on the legal implications and human costs of the drone strikes in Pakistan.

First I will review the existing reports entailing the legal status—combatant or noncombatant—of those killed in U.S. attacks. Secondly, I will provide a brief and basic overview of the laws of war and their immediate applicability regarding the protection of civilians and noncombatants in international armed conflicts in accordance with the Geneva Conventions of 1949, the Additional Protocols of 1977, and customary international law. Third, I will examine several case studies of various U.S. drone attacks in Pakistan in order to determine whether or not international law is being observed by United States. Fourth, I will briefly evaluate the fundamental legal credibility underlying the attacks using both the existing analyses provided by legal scholars and rights groups and well-established principles of law rooted in the Fourth Geneva Convention and the International Covenant on Civil and Political Rights. Fifth, using the available body of documentary evidence compiled by independent journalists, human rights groups, strategic analysts, media reports, and legal experts, as well as taking into consideration the basic tenets of international law in the context of the U.S. attacks, I will juxtapose the substance of U.S. actions with fundamental American legal standards with the purpose of establishing an appropriate technical classification for the United States’ drone policy in Pakistan. Lastly, I will conclude this analysis with a few final remarks addressing unanswered questions while also making some basic recommendations.

Phil Leggiere is a journalist who has published widely in national and trade publications including Wired, Salon, TimeOut NY, Bill of Rights Defense Committee blog and many others.

Your Success

You have endured economic and financial pressures on your legal practices, intimidation and violence by state authorities, the arbitrary detention and house arrest of your leaders, and the potential co-optation of a democratic election deposing a despised dictator. Now – two years after first taking to the streets to defend judicial independence – you have achieved a breathtaking vindication of grassroots democracy, inspiring legions across the world through your example.

The achievements include establishing a new ethical standard for lawyers around the world. Beyond representing the interests of our respective clients, our profession defends our societies’ most cherished notions: habeas corpus; due process; access to unbiased justice for all; and democratic checks & balances among independent powers. You have demonstrated and filled a momentous responsibility of the profession, and our world will be better when your peers around the world accept the same burden.

Your Continuing Aims

We understand that while the restoration of Chief Justice Muhammad Iftikhar Chaudhury represents a major milestone in the restoration of democracy, it remains a single stone on the path. During the period of the Chief Justice’s unconstitutional removal, the Court was expanded from 16 to 29 Justices. Despite his impending return to the bench, the executive continues to hold a controlling interest on the Court through Justices politically beholden to it.

Until the judges of the Apex Court are removed, the work of the lawyers’ movement in Pakistan will continue. And the Rule of Law Institute will stand with you in the U.S.

The Implications of Your Triumph for the Broader World

Among the least explored implications of your recent success is the victory it portends in the struggle against extremism. As you have pointed out throughout your campaign, the Musharraf dictatorship – and Zardari regime – have built a dismal counterterrorism record.

Terrorists cultivated, trained and supported by the ISI continued to receive assistance from the Pakistani military under Musharraf’s control. The Pakistani military establishment defrauded the U.S. out of $10 billion since 2001, much of which apparently went into the pockets of military cronies and extremists, rather than efforts – like yours – to oppose them. And, perhaps most exasperating of all, Musharraf, and Zardari after him, sheltered the architect of the world’s most pervasive nuclear smuggling ring.

Their tenure was devastating to Pakistan, as well as U.S. interests in the region. Musharraf’s assaults on judicial independence and habeas corpus not only undermined Pakistan’s and America’s rhetorical commitment to democracy, but also represented a massive loss in the ongoing battle for the hearts & minds of individuals recruited by violent extremists. And by attempting to politicize the Court’s election law decisions, Zardari has followed Musharraf’s lead.

In contrast, the restoration of impartial justice could undermine extremism, in several ways.

First, an independent judiciary will build allegiance among people whom Pakistan and the U.S. most need to cultivate. The Court’s evisceration of the justice system vitally eroded the government’s legitimacy on the ground. In the face of unchecked arbitrary rule – whether that of government officials or militants who have gained control over territory – the strongest weapon against lawlessness is an unbiased and legitimate means of resolving disputes peacefully.

Second, your victory helps align political interests throughout Pakistan. Your supporters around the country can now focus their energies on the struggle against extremism, rather than the struggle against totalitarianism.

Finally, you represent a brave new model of international partner for the United States. For too long, our nation has forgotten its once-lauded role as a champion of democracy & freedom. Yet your movement’s ultimate interests are closely aligned with those of the U.S. over the long-term: you favor access to justice for all, an expansion of opportunity, and the development of robust civil society. If, by taking note of your achievements, the United States learns the value of supporting indigenous movements for democracy in other countries, the impacts of your work will multiply.

On the one hand, Washington has continued to bomb targets inside Pakistan under the Obama Administration. However, the administration now appears willing to consider supporting democratic reforms and independent institutions. As we wrote after investigating the martial law imposed by General Musharraf in November 2007, the U.S. “should dedicate itself to advancing the values of democracy, rule of law and human rights over repression and autocratic rule. This view compels shifting U.S. policy…towards support of independent indigenous institutions that hold the greatest promise for building genuine democracy….” But it was your work that proved the viability of winning popular support by advancing democracy, opening the space for Washington’s consideration of options beyond the military aspects of “The War on Terror.”

As you continue rebuilding democracy in Pakistan, we stand at your side in the United States. And, around the globe, we celebrate your remarkable achievements together.

In solidarity and heartfelt thanks,
The Rule of Law Institute (ROLI)
www.ruleoflawinstitute.org

Shahid Buttar, Esq.
Ryan Hancock, Esq.
Devin Theriot-Orr, Esq.

The long march is not about the person of Iftikhar Chaudhry or Nawaz Sharif. It is a march against the status quo and must succeed in order to usher in the much-needed change in the constitutional structure, political culture and social ethos of this country, without which Pakistan will be unable to sustain a moderate society or prosper as a democratic polity. The defiance of Chief Justice Iftikhar Chaudhry on March 9, 2007, only ignited fires of resentment against the ruling elite for sustaining a justice system that denies the ordinary citizen access to justice. He might not have had an irreproachable past, but his perseverance and his dogged resolve to fight an illegal and unconstitutional act has given this country an opportunity to rally behind a cause that promises a better collective future for all of us. Likewise, Nawaz Sharif might be culpable for meting out highhanded treatment to the judiciary during his last stint in power. But how does that
equate the PML-N with the PPP at this time, when the former is standing on the right side of principle seeking to change a fundamental cause of our misfortunes, while the latter has emerged as the intractable obstacle to such change?

This change being sought by the rule of law movement is imperative for five fundamental reasons. One, the Constitution of Pakistan needs to be reverted to its original sustainable form. General Musharraf vandalized the Constitution for a second time on Nov 3, 2007. On that fateful day the General had bestowed on himself the power to single-handedly inscribe changes into our fundamental law, and in exercise of such self-proclaimed power, disbanded the judicature, set-up a new High Court in Islamabad, validated all his illegal actions and gave himself immunity against charges of treason etc. The new Dogar Court that he constituted ‘validated’ his unconstitutional actions in the Tikka Iqbal Mohammed Khan case. While the general’s illegal acts outraged this nation and triggered a chain of events that led to his regime’s demise, this country continues to function under the presumption that his actions of Nov 3 were legal and the changes introduced by him are
a valid part of our Constitution. The Constitution thus needs to be cleansed of the general’s adulterous acts, which cannot happen so long as we continue to live with a Dogar Court complicit in the general’s treacherous scheme.

Two, the constitutional structure of separation of powers and checks and balances needs to be given effect. The fundamental rights and liberties guaranteed to the citizens are never self-implementing. An independent judiciary is the enforcement arm of the Constitution. So long as the judiciary remains subservient to the executive and continues to function as an extension of the ruling elite, one can scribble in all kinds of sensible provisions in the Constitution but they will amount to naught. Without a judiciary that has the ability, resolve and reputation of being a neutral arbiter of justice and conscientiously adjudicates the relationship between the institutions of the state on the one hand and between the citizens and the state on the other in accordance with the letter and spirit of the Constitution, rule of law will not amount to anything more than the rule of the powerful. If we allow the Zardari-led PPP to stuff courts with perfidious quacks
- as obvious from the recent judicial appointments made with the consent and collusion of the Dogar Court – overtime the gap between the law produced by our courts and demands of justice will become so wide that the notion of rule of law in Pakistan will itself become farcical.

Three, we need a constitutional and legal structure that sustains a level-playing field in the political realm. The leaders of the PPP and the PML-N both have tainted pasts, and this nation has not been vying for a return to the kind of corrupt and ineffectual representative governance that these parties punished the country with in the 1990s. The charter of democracy had brought along the hope that our mainstream parties had learnt from their past mistakes, agreed to let bygones be bygones, compete fairly within the political arena, and move forward with a clean slate. The NRO, however, was the first infraction. The PPP leadership got into bed with Musharraf who wiped clean its past sins through an unscrupulous and shameful edict. This left the Sharif’s out in a lurch, with the swords of Damocles hanging over their heads.

The Zadari-led PPP went back to the dirty political games of the 1990s once it decided to abuse the instrument of the law to cut the Sharifs to size by getting them declared ineligible for public office. If the Sharifs have a blemished past, so does Zardari – and one that is much murkier. Probably all our politicos will be rendered ineligible to hold elected public office if we strictly enforce the qualification requirements for such office enshrined in our Constitution. Our nation has thus been willing to give politicians with tainted past another chance, frankly, for want of options (as there is no short-cut to democracy) but with the hope that they will be willing to reform themselves and their sordid ways. Thus, if democracy is to have a chance in this country, we cannot allow one political party to establish a stranglehold over our skewed legal and judicial structures to entrench itself in power and outlaw the opposition.

Four, we need to reform our democracy and system of governance to ensure that the policies and actions of elected representatives reflect popular public opinion. Khaki saviours still have a controlling role in Pakistan in this day and age because there isn’t much distinction between the style and system of governance that subsists under military dictatorships as opposed to that practiced by civilian autocracies voted in during democratic times. The rule of law movement has sustained itself for two gruelling years and the ideal of constitutionalism that it is struggling for resonates with ordinary people. All opinion polls conducted in Pakistan since Nov 3, 2007, establish that an overwhelming majority of Pakistanis supports the restitution of the Nov 3 judiciary. And yet we have a popularly elected party in government that has willingly inherited the abhorrent policies and tactics of the dictator it replaced and refuses to give effect to the unmistakable
will of the nation it claims to represent. If the growing gap between the popular will of the nation and the narrow self-promotional policies of our ruling elite is not bridged, the continuation of civilian autocracy in democratic garb will end up discrediting the desire for democracy itself in this country.

And five, we need to re-instil morality and ethics in public life. Over the last year we have witnessed a free fall in the standards of morality exhibited by holders of public office. To err is human, but to gloat over deliberate wrongdoing and use deceit as a favoured political tactic cannot be acceptable. A representative government that introduces a code of conduct for public life that celebrates and rewards indiscretions, corruption and malice cannot be a harbinger of hope for the future of democracy or rule of law in this country. If we accept Mr Zardari’s broken promises, his refusal to honour binding commitments, and his choice of lackeys smeared in scandal for elevation to revered public offices, it will not be too long before all sensible distinctions between right and wrong in public life get wiped away.

Now we are essentially being told that our perverted ‘ground realities’ have become so entrenched that in order to preserve order and peace in the society we should compromise the principle underlying the rule of law movement instead of changing the ugly reality. This must not happen. If we sacrifice principle on the altar of expediency at this critical juncture, we might not get another opportunity to redeem the soul and spirit of this nation through a peaceful mass movement led by the educated middle class of this country.

Email: sattar@post.harvard.edu

————
Babar Sattar
+ 92-321-5171197
sattar@post.harvard.edu

In an effort to subvert the Long March, the Pakistani Government has passed emergency legislation to ban democratic dissent, issued detention orders for leaders of the lawyers’ movement and preemptively arrested several hundred opposition political party members and lawyers. Following the imposition of Section 144 of the Criminal Procedure Code, persons may be detained up to three months without charge for asserting their constitutional right to free speech and political assembly.

The ROLI demands the immediate release of all persons arrested and/or placed under house arrest, an end to all preemptive house raids and arrests and the withdrawal of all detention orders issued for the leaders of the lawyers’ movement. Further, the ROLI demands the withdrawal of Section 144 and all other restrictions, which unconstitutionally prohibit free speech and political assembly.

_______
The Rule of Law Institute (ROLI) aims to defend constitutional democracy wherever around the globe its components are threatened. Democratic societies must respect — and ROLI will promote — principles of separated & balanced powers among government authorities, judicial independence, free and open media, and individual rights consistent with international norms. ROLI also promotes economic opportunity for all and universal access to basic needs including shelter, food, health care and education.

Our organization takes particular interest in countries where the international community has inhibited these principles. ROLI addresses each issue in a variety of ways, including: policy and legal analysis, private diplomacy, investigative & fact-finding delegations, and public education efforts.

The Obama Administration has repeatedly recognized the importance of Pakistan to regional and U.S. national security. Given this recognition, and taking note of Vice President Biden’s insightful proposals before leaving the Senate, the President should abandon his predecessor’s failed policy and support meaningful democratic reforms and the restoration of the judiciary rather than military engagement alone.

March 9 marked the two-year anniversary of the Pakistani Lawyers’ Movement, which formed to restore the Rule of Law in wake of executive assaults on the judiciary. After Pervez Musharraf – a military dictator supported by the U.S. – sacked the Chief Justice of Pakistan’s Supreme Court in March 2007, the Lawyers’ Movement took to the streets, building a national movement across all sectors of society to restore democracy. In the response to mass protests, Musharraf declared an emergency, suspended the constitution and ordered the arrest and detention of judges, lawyers, journalists, and civil society members. Musharraf claimed that he could not fight the U.S. “War on Terror,” while facing the democratic constraints of an independent judiciary and free press.

Despite U.S. support for Musharraf, he was ultimately forced by public pressure to resign in August 2008. This was the first time in Pakistan’s 62 year history that a military ruler peacefully stepped down from power. However, despite Musharraf’s resignation, general elections in February 2008 in which the Pakistani people overwhelmingly supported judicial restoration, and repeated promises from Pakistan’s political elite, the judiciary remains politicized – as illustrated last week when it ruled the Sharif brothers ineligible. To this date the judiciary has not been fully restored and the Rule of Law continues to wither.

President Asif Zardari continues to defy the will of the electorate by failing to restore the judiciary. Zardari, like the military rulers before him, has no interest in allowing a Court the independence necessary to check his unrestrained fiat. Like Musharraf, Zardari persists in manipulating and intimidating the judiciary as a means of consolidating his personal political control. Last week’s Supreme Court decision concerning the Sharif brothers’ eligibility to contest elections is a perfect illustration.

Nawaz Sharif alleged that Zardari offered to drop their case in exchange for the Sharifs’ assurance that they would end their call for the restoration of the judiciary. Circumstantial evidence strongly suggests that Zardari engineered the court’s decision in order to eliminate his political rivals and did so through three judges who were unconstitutionally appointed by Musharraf. Using the court’s decision as cover, Zardari ordered that Punjab, a province previously controlled by the publicly elected PLM-N, come under Executive rule.

In a further effort to silent political dissent, Zardari suspended the PPP party membership of Aitzaz Ahsan, a leader of the Lawyers’ Movement. Pakistani lawyers and civil society continue to demand the restoration of the judiciary and the completion of the transition to democracy. In response, Zardari has pushed through legislation banning peaceful political assembly in Islamabad, Punjab and Sindh, barred the press from entering the National Assembly and preemptively arrested political party opponents and lawyers.

The U.S. supported Pakistani government, in spite of its attacks on the Rule of Law, has undermined not only democracy in Pakistan, but also U.S. interests in the region. For example, since 2001, Musharraf squandered over $11 billion dollars in direct U.S. aid intended for fighting terrorism, which he allegedly diverted to retain his support within the military and upgrade weapons poised against India, while terrorism related offenses increased. U.S. military aid to Pakistan continues unabated, further entrenching the position of the military at the expense of civilian institutions.

In the three months since Obama has taken office, his administration has continued to bomb targets inside Pakistan while failing to insist on democratic reforms. U.S. policy should not focus solely on the military aspects of “The War on Terror.” Rather, it should aim to win popular support by advancing democracy. This view compels ending unconditional support for the military and instead supporting independent institutions that hold the greatest promise for building genuine democracy in Pakistan. Even the Pakistani government acknowledges that a military policy alone will not bring sustainable regional or international security, as evidenced by Zardari’s recent negotiation with Taliban militants in the northern Swat Valley.

Specifically, Obama should commit to support the plan outlined by Joe Biden when still Chairman of the Senate Foreign Relations Committee and Senator John Kerry. The U.S. should curb it’s dependence on the ISI and military, impose rigorous auditing procedures on all future military aid and invest in long-term development projects which focus on education and public infrastructure to demonstrate U.S. support for the people – rather than the military generals – of Pakistan. At a minimum, Washington should insist upon the restoration of all judges deposed in 2007. Failure to do so will prolong instability in Pakistan and leave the rest of the world subject to the country’s continued lawlessness.

This National Conference having deliberated upon the need for the restoration of the independent judiciary in the country and for that purpose it was necessary to undertake a peaceful and non-violent Long March to Islamabad and then to peacefully undertake a sit-in (Dharna) in front of the Parliament House, adopts the following resolution:

WHEREAS: This Conference is of the view that the actions taken by the General Musharaf on November 03, 2007 were wholly illegal, malafide and unconstitutional and therefore cannot be sustained;

AND WHEREAS: The action of November 03, 2007 ought to have been reversed by executive action and all their effects ought to have been purged immediately after General Elections of February 18, 2008 but was not done;

AND WHEREAS: The martyred leader of Pakistan Peoples’ Party Mohtarma Shaheed Benazir Bhutto had promised a Long March to ensure the reinstatement of Chief Justice Iftikhar Muhammad Choudhry and his independent colleagues; while Mr. Asif Ali Zardari, the Co-chairman Pakistan Peoples’ Party has thrice through formally written and signed declarations, promised the restoration of the judges to the position that prevailed on November 02, 2007; but these promises have not been kept by the Federal Government;

AND WHEREAS: The people of Pakistan demand for an independent judiciary so that the nation may attain stability, prosper, progress economically and develop into one of the leading states in the comity of nations, as an independent judiciary is the most essential element to ensure the sustenance and stability of the democratic order, to ensure economic growth and to attract investment, that will then address the problems of unemployment, inflation, crimes, law and order to make Pakistan a terror-free and peaceful place;

AND WHEREAS: This Conference is of the opinion that after the failure to fulfill its promises the Government has left the nation with no option whatsoever but to take recourse to a peaceful and non-violent Long March and Dharna as proposed by the Lawyers of Pakistan;

AND WHEREAS: The Conference has taken note of the unconstitutional steps taken by the Federal Government in imposing Governor’s Rule in the Punjab and ousting the government of a Party that continues to display that it has mandate of the people of the Punjab. The Conference is aware that this illegal step has been taken to attempt to subvert the Long March and Dharna but has resulted in such a designed turmoil in the Punjab Police that resulted in the security lapse resulting in the tragic attack on Sri Lankan Cricketers in Lahore. Had the malafide transfers not been made, and had the Punjab government not been ousted this tragic incident would have been prevented.

NOW THEREFORE IT IS RESOLVED THAT:

This Conference calls upon the entire nation to participate wholeheartedly in the Long March scheduled to start from Quetta and Karachi on March 12, 2009 so as to reach Islamabad on March 16, 2009 and there to stage a peaceful and non-violent Dharna (sit-in) until the Chief Justice Iftikhar Muhammad Choudhry and his colleagues judges are restored to the offices they held on 02 November, 2007.

The events in Pakistan since the fall of 2007 sparked a response from the legal profession worldwide. In particular, images of Pakistani lawyers being arrested as they were peacefully protesting to uphold principles of the rule of law in their country, mobilized the ABA to respond. The ABA issued statements, organized a march in solidarity with Pakistani colleagues, and presented a petition to the government of Pakistan calling for the restoration of the Constitution, reinstatement of deposed Supreme Court justices, and the release of lawyers and civil leaders who had been wrongfully jailed. In recognition of their tremendous efforts, the ABA gave the lawyers and judges of Pakistan the Rule of Law Initiative Award in August 2008.

With the end of military rule, the installation of a democratic government and the restoration of judges, will the lawyers’ movement fix the judicial system? Will they be able to address the ailments that are hampering the process of the delivery of justice? Will they examine how judges are appointed, how cases are fixed, how much money is to be paid to the staff at every step, why abnormal delays take place, and whether the poor can afford to seek justice?

We will explore the public purpose of a constitution and the linkages between a feudal landholding political culture and access to justice for Pakistan’s 160 million people. Civil society estimates of the landholding scenario in Pakistan reveal that 0.24% of the landholding population controls the majority of the agricultural land. Will the lawyers address the overbearing influence of the feudal families on the executive, judicial, and legislative apparatus that neglects the interests of the great majority (93%) of poor farmers?

The event will take place on September 25th, 11:00 – 12:30
Sponsoring Entities:
· Asia Pacific Committee of the ABA Section of International Law
· ABA Center for Human Rights
· ABA-UNDP International Legal Resource Center

Program Chairs:
· Brigitte R. Gambini, Paris, France
· Mohammad A. Syed (”Mo”), King and Ballow, Nashville, TN

Introductory Remarks: Aaron Schildhaus, Chair, Section of International Law, American Bar Association
Moderator: Catherine M. Doll, Debevoise & Plimpton LLP, New York, NY

Speakers:
· Ms. Faryal Jooma, lawyer and partner at Jooma and Soomro, Karachi, Pakistan
· Barrister Aitzaz Ahsan, President of the Supreme Court Bar Association, Lahore, Pakistan
· Mr. Imran Khan, Chairman of the Pakistan Movement for Justice, Lahore, Pakistan (former international cricketer)
· Professor Roy Prosterman, Founder and Chairman of the Rural Development Institute (RDI), Seattle, Washington

Musharraf’s rapid fall from power demonstrates the bankruptcy of the Bush administration’s policy of advocating liberty while supporting autocracy. As we have stated, the real struggle today is not between democracy and terror, but between those who support expansion of democratic and human rights and those who seek to infringe upon them. The Bush Administration supported the Musharraf regime on the grounds that it was an ally in the so-called “war on terrorism” and overlooked its violations of the most fundamental democratic rights. Both Administrations also refused to respect judicial independence, accepting the removal and incarceration of over half of Pakistan’s legitimate judges. In the face of popular opposition that even potentially rigged elections could not conceal, the Musharraf presidency was finally –and fortunately — doomed to failure.

President Bush often claims liberty is the birthright and natural desire of all people. Had he really believed his rhetoric, however, he would have supported the heroic lawyers of Pakistan in their demands, rather than the now-deposed and discredited Musharraf.

The Lawyers Movement has represented the legal profession at its best. We stand with it and share the joy of its triumph. While Pakistan’s future remains far from certain, it has taken an enormous step forward