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.

SUPPORT THE RULE OF LAW AND THE LAWYERS OF PAKISTAN ON MONDAY – 01/26/09!

WHAT:         Pervez Musharraf Lecture (World Affairs Council)

WHEN:         Monday January 26, 2009

WHERE:      The Franklin Institute, 222 North 20th Street Philadelphia, PA

TIME:           5:30 p.m. to 8:00 p.m.

CONTACT: pakistanjusticecoalition@gmail.com

Please join the Pakistan Justice Coalition and the Philadelphia Chapter of the National Lawyers Guild on Monday January 26, 2009, to reiterate the significance of the rule of law and human rights over repression and autocratic rule.  As lawyers we have a professional and ethical responsibility to confront violations of the rule of law no matter where they occur.

See: Philadelphia Bar Association’s Statement; Pennsylvania Bar Association’s President’s Statement; American Bar Association’s President Neukom’s Statement; Defending Dictatorship: U.S. Foreign Policy and Pakistan’s Struggle for Democracy.

The World Affairs Council of Philadelphia has invited, Pervez Musharraf, former military dictator of Pakistan “to address the prospects for peace and the formidable challenges of diplomacy in South Asia.”  It is ironic that a former military dictator has been invited to lecture on the subject of democracy and the prospect of peace when his rule resulted in Pakistan becoming, as President Clinton declared, “the most dangerous country in the world.”

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 fundamental democratic rights.  However, the true battle being waged today is not between democracy and “terrorism.” Rather, it is the battle between advancing the values of democracy, rule of law and human rights, on the one hand, and repression and autocratic rule on the other. The way to combat extremism and the repressive rule to which it aspires is by supporting the expansion, rather than the contraction, of human rights.

Background Information:

On November 3, 2007, the President, in his capacity as Chief of Army Staff, declared an emergency and issued a Provisional Constitutional Order (PCO) and suspended the constitution. Musharraf ordered the arrest and detention of twelve (12) of seventeen (17) Supreme Court Justices, sixty (60) Senior Judges and several thousand lawyers, journalists, and civil society members throughout Pakistan.  Further, the (PCO) suspended fundamental rights guaranteed by Pakistan’s Constitution such as freedom of movement, assembly, association, speech and property rights.  In response bar associations all over the world condemned Musharraf’s actions.  The Philadelphia Bar Association stated, “We condemn the actions of the President of Pakistan, who has taken it upon himself to violently attack the lawyers and judges as he systematically shuts down his nation’s lawful institutions of justice. That he does this in the name of fighting terrorism is horrible in the extreme. Institutions of democracy should never be victims of fear. It is precisely this strength of democracy that guarantees that a just society may continue, especially in troubled times.”  On August 18, 2008, in order to avoid impeachment proceedings, Musharraf resigned as Pakistan’s President.

Musharraf’s rule at a glance:

• General Perevz Musharraf came to power in 1999 through a military coup;
• Musharraf held the post of President and Chief of Army Staff (COAS) in violation of Pakistan’s Constitution;
• Post 9-11, Pakistan received $11 billion dollars in direct U.S. aid for fighting terrorism, funds that Musharraf diverted in efforts to retain his support within the military and upgrade weapons to be used against India while terrorism related violence increased;
• Pakistan’s intelligence agencies detained hundreds of persons without providing them any procedural due process protections pursuant to Pakistan’s Constitution.  Over six hundred persons are still missing in Pakistan;
• Journalists and press outlets faced state censorship, repressive policies imposed by the Pakistan Electronic Media Regulatory Authority (PEMRA), direct and indirect threats to media institutions and individual journalists, loss of advertising revenues, revocation of broadcasting licenses and, most insidiously self-censorship;
• Journalists working along the Afghan border alleged that Musharraf’s government engaged in direct support of militants by providing arms, ammunition and supplies;
• Inter-Service Intelligence (ISI) admitted that they led the effort to manipulate Pakistan’s national election in 2002 and offered to drop corruption cases against candidates who would back President Musharraf and Musharraf issued a series of executive decrees to bar political party leaders from contesting the polls;
• A historically unprecedented number of national and provincial seats went to the Muttahida Majlis-e-Amal (MMA), an alliance of six religious fundamentalist (Pro-Taliban) parties;
• In 2006, Musharraf reached an agreement with tribal leaders along the Afghan border in Balochistan entailing the withdrawal of Pakistan’s military from the tribal areas in exchange for self-policing by tribal leaders. A  2007 NIE revealed that, after having been displaced from Afghanistan by the NATO invasion following 9-11, al-Qaeda had reconstituted its network and expanded its original capabilities in Pakistan;
• Nuclear proliferation by Pakistani authorities remains uninvestigated. In 2004, nuclear scientist Abdul Qadeer Khan, whose work establishing Pakistan as a nuclear state won him acclaim as a national hero, admitted to running an international technology smuggling operation which provided nuclear weapons technology to Libya, Iran, and North Korea. Despite his initial arrest, he was eventually pardoned by Musharraf and has yet to be produced for debriefing by international investigators despite demands by the U.S. House of Representatives and the Swedish Weapons of Mass Destruction Commission; and
• Prior to his 1999 military coup, Musharraf led Pakistan in an armed conflict with India in the Kargil region in northern Kashmir.  The Pakistani military fought alongside armed militant insurgents such as Lashkar-e-Taiba.

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.

While it is unclear what role the government has played in the Youtube ban, allegations are stirring that the ban is in response to videos of election rigging that have recently surfaced. Some sources report that the ban has come directly from the Pakistan Telecommunication Authority, though this report has yet to be verified. The source references an appeal from Micronet Broadband for users to write to Youtube and request that the “offending” videos be removed.

The videos [linked below] depict election officials distributing multiple ballots to each MQM party member—all verified with a single individual’s fingerprint. MQM is a Sindhi party and part of President Musharaff’s dwindling support base.A Youtube ban only adds to concerns about significant restraints on press freedom, imposed in the wake of the November 3 declaration of emergency rule, that have yet to be lifted.

• Evidence of Vote Rigging Video

Their detention, since November 3, 2007, is in violation of Pakistani and International law.
The detention of the Chief Justice is in violation of basic due process principles embodied in Articles 9 and 10 of the Pakistani Constitution. As highlighted in a recent Lahore University of Management Sciences (LUMS) Briefing Paper:

The government has never issued a detention order for the Chief Justice. In the absence of a valid detention order, any detained person must be produced before a magistrate within 24 hours of his or her arrest.¹ The detention of the Chief Justice and his family is unconstitutional because the government has deprived the family of liberty without acting “in accordance with law.”²

The detention orders for Ahsan, Kurd and Mehmood are invalid on two grounds: failure to allege specific facts justifying detention and vagueness.

For detention orders to be valid under the Maintenance of Public Order Ordinance of 1960, they must allege specific facts justifying the conclusion that the detainee is a threat to “the maintenance of public order.”³ Instead of alleging specific facts, the orders contain conclusory statements claiming, for example, that the detainees are involved in activities challenging the writ of the government, have designs to create law and order situations, and will make inflammatory speeches that will promote hatred. A detention order cannot stand on such conclusory allegations without specific facts to support them.

Furthermore, under Pakistani law, detention orders must “not be vague and indefinite” so as to allows a detainee “to make representation against his detention…”⁴ The detention orders against Ahsan, Kurd and Mehmood fail to cite any specific acts by the detainees or to adduce any evidence justifying their detention. As such, the detention orders-and the physical detention-of Ahsan, Kurd, and Mehmood are unconstitutional.
The detention of Chaudry, Ahsan, Kurd and Mehmood are also in contravention of customary international law as established by The Universal Declaration of Human Rights (UDHR). The UDHR guarantees that “[n]o one shall be subjected to arbitrary arrest [or] detention.”⁵ The arrest and detention of Chaudry, Ahsan, Kurd and Mehmood are arbitrary under, and thus violative of, the UDHR because they are in clear violation of Pakistani law
Pakistan Justice Coalition echoes LUMS’ call for the government of Pakistan to end its policy of arbitrary arrest and detention and for the government to respect the fundamental rights of free expression, peaceful assembly and movement.
Pakistan Justice Coalition further calls on international human rights organizations to declare the detainees political prisoners and to vehemently call for their release.

The report is co-authored by members of a delegation from the United States National Lawyers Guild and is the result of a ten-day fact-finding visit to Pakistan to assess the status of the judiciary and the prospect for fair elections in light of recent attacks on judicial independence. The report criticizes U.S. foreign policy in Pakistan, concluding that U.S. support for President Musharaff and its failure to demand restoration of the deposed judges will have long-term negative impacts on the judiciary and the rule of law in Pakistan and damage regional safety and security.

The report also concludes that the upcoming elections are unlikely to meet international standards due to widespread systemic and structural problems, including pre-poll abuses and the failure to enforce existing election regulations. Additionally, the report addresses press freedom in Pakistan, noting that severe restrictions faced by all media, in particular the Urdu-language press, constitute a “serious threat” to Pakistan’s democratic development.

“The independence of the judiciary is a cornerstone of a functioning democracy. The United States’ support for a dictator and its failure to demand the reinstatement of the deposed judges is critically damaging demcratic development and threatening regional safety and security,” stated Rule of Law Project Director Devin Theriot-Orr.

David Gespass, the Vice President of the National Lawyers Guild and the leader of the delegation, stated that “We intend to share the report with the American people and place it before our elected representatives to help effect a drastic change in U.S. policy towards Pakistan that emphasizes human rights and democracy as the only real means of reducing the threat of terrorism.”

One respondent, Justice Azmat Saeed of the Lahore High Court, who refused to take the PCO oath, stated that Musharraf said to the U.S.A., I can’t fight the war on terrorism with a free press and an independent judiciary. But you cannot fight terrorism with state terrorism.

Pakistan has become a state where there are suicide bombings going on, where no one is safe. We have now lost more Pakistani soldiers than Americans have lost in Iraq, noted Imran Khan, leader of the Tehreek-e-Insaaf party. If you assess the policy now, it has been a disaster for the U.S., and it’s now become an even bigger disaster for Pakistan. And there’s no end in sight. Radicalism and extremism are growing by the day. This is now a monster that could actually destroy our country, concluded Khan.

Syed Mudasser Ameer, a barrister and a member of the executive committee of the Peshawar High Court Bar Association Action Committee, expressed a common view that when we used to talk about America, it was just another word for freedom. But the United States continued support for Musharraf has changed his views. Now, we say it would be better if we were still ruled by Britain, because there would still be rule of law, stated Ameer.

Professors Roger Normand and Justice (ret’d) Jawwad Khawaja of LUMS established the Rule of Law Project to serve as an academic clearinghouse for documentation and research regarding constitutionalism and the rule of law in Pakistan. The Project is developing a comprehensive report on the impacts of the PCO and seeking information from all lawyers and members of civil society who were arrested, detained, or mistreated following the PCO.