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.

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.

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

Six years after it promulgated its 2002 Police Order governing the functioning of the force, the military government of President Pervez Musharraf had established very few public safety commissions, supposedly
the cornerstone of the accountability process, and those that existed lacked enforcement mechanisms. The police remained political pawns, with transfers and promotions used to reward those willing to follow illegal
orders and to punish the few officers who dared to challenge their military masters. As an institution, it was widely distrusted and disliked by citizens.

Police reform should be high on the agenda of the democratically-elected governments that have now taken power at the centre and the provinces. Unlike the military did for years, they cannot afford to ignore the
demands of constituents for safety and security.

“Political appointments must end; postings, transfers, recruitment and promotions must be made on merit alone”, says Samina Ahmed, Crisis Group’s South Asia Project Director. “The recommendations of police managerial bodies must be given due weight, and emphasis placed on the police serving and protecting citizens”.

The international community, particularly the U.S. and the European Union, should realise that helping the police and civilian intelligence agencies with training and technical assistance would pay
counter-terrorism dividends. The government and its Western allies would be best served by reallocating resources from the military to the police. This means not only more money and the latest weapons and
equipment, but vitally also better training and an end to military dominance and control of internal law enforcement institutions, processes and decision-making.

“The new civilian government has inherited a brutal and corrupt police force”, says Robert Templer, Crisis Group’s Asia Program Director. “Reform will be difficult and requires time, patience and resources, but
it is essential to undertake it”.

The Resolution “calls on the Government of Pakistan . . . to restore to their positions Chief Justice Iftikhar Muhammad Chaudhry and all Supreme Court and high court justices and other members of the legal profession in Pakistan who were removed from office since the imposition of emergency rule, and to respect the independence of the Pakistani judiciary.”

The Resolution was referred to the House Committee on Foreign Affairs. Please take a moment to contact the members of the committee to encourage them to support H.R. 1044.

New York:
Date: Saturday, March 15
Time: 4:00pm – 5:30pm
Location: Outside the Pakistan Consulate (5th Avenue, E 65th St)
For info, contact Saad Mustafa
saadmustafa.rizvi@gmail.com <mailto:saadmustafa.rizvi@gmail.com>
(857-334-8012)

Washington DC:
Date: Sunday, March 16.
Time: 1:30 pm.
Location: outside the Pakistan embassy (3517 international court)
For info, contact Ghazia Aslam
ghaziaslam@gmail.com <mailto:ghaziaslam@gmail.com>
(703-663-0960)

Press Coverage of the events can be found here.

The PJC delegation addressed:

a. government representatives from the Department of State and House Committee on Foreign Affairs;

b. bar associations in New York, D.C. (South Asian Bar Association), Philadelphia and the National Lawyers Guild;

c. policy analysts at the U.S. Institute of Peace and Center for Strategic and International Studies;

d. journalists from BBC, NPR, ARY, legal publications, Voice of America, local newspapers and international and Pakistani media;

e. legal academic communities at NYU, Columbia, the University of Pennsylvania, Rutgers, American University Washington College of Law and Brooklyn Law School; and

f. human rights group Amnesty International.

The lawyers will be speaking at a number of law schools, including NYU, Columbia and Rutgers, and will be the guests of honor at the mid-Atlantic conference of the National Lawyers Guild in Philadelphia. Following the conference, they will travel to Washington D.C. to address policy makers regarding the impacts of current U.S. policy in Pakistan.

“We are pleased to be able to host our inspirational Pakistani colleagues and to honor the achievements of lawyers’ movement in promoting justice and the rule of law,” stated Pakistani Justice Coalition co-chair Ryan Hancock, who recently returned from a 10-day fact-finding visit to Pakistan.

The lawyers have been at the forefront of the lawyers’ movement that arose following the suspension of Chief Justice Iftikhar Muhammad Chaudhry in March 2007. Following the November 3, 2007 coup, in which then-General Pervez Musharraf deposed more than half of the sitting appellate judges in Pakistan, lawyers again took to the streets and hundreds were imprisoned. Biographies of the lawyers are included below.

“This speaking tour will provide an opportunity for lawyers, law students, judges and policy makers in the United States to witness the passion of the Pakistani lawyers’ movement,” stated Rule of Law Project Director Devin Theriot-Orr.