Tapper Throws Softball on Drones to Panetta

Jake Tapper’s interview with Leon Panetta has made a lot of news already and he deserves credit for getting the CIA Director on film in the first place. But one question he asked did more harm than good. Tapper asked Panetta to assure us that the US use of drones was legal. But he limited that question to Pakistan.

Tapper: Will you give us your personal assurance that everything the CIA is doing in Pakistan is compliant with US and international law?

Panetta: There’s no question that we are abiding by international law, and the law of war.

As the UN report on targeted killing (which Tapper references in setting up his question) makes clear, the problem with drones is not so much their use against combatants in active war zones (as the borderlands of Pakistan, at least, is).

79. The use of drones for targeted killings has generated significant controversy. Some have suggested that drones as such are prohibited weapons under IHL because they cause, or have the effect of causing, necessarily indiscriminate killings of civilians, such as those in the vicinity of a targeted person.142 It is true that IHL places limits on the weapons States may use, and weapons that are, for example, inherently indiscriminate (such as biological weapons) are prohibited.143 However, a missile fired from a drone is no different from any other commonly used weapon, including a gun fired by a soldier or a helicopter or gunship that fires missiles. The critical legal question is the same for each weapon: whether its specific use complies with IHL. [my emphasis]

Rather, the problem is using drones in places like Somalia and Yemen, where we are not at war.

86. Outside its own territory (or in territory over which it lacked control) and where the situation on the ground did not rise to the level of armed conflict in which IHL would apply, a State could theoretically seek to justify the use of drones by invoking the right to anticipatory self-defence against a non-state actor.147 It could also theoretically claim that human rights law’s requirement of first employing less-than-lethal means would not be possible if the State has no means of capturing or causing the other State to capture the target. As a practical matter, there are very few situations outside the context of active hostilities in which the test for anticipatory self-defence – necessity that is “instant, overwhelming, and leaving no choice of means, and no moment of deliberation”148 – would be met. This hypothetical presents the same danger as the “ticking-time bomb” scenario does in the context of the use of torture and coercion during interrogations: a thought experiment that posits a rare emergency exception to an absolute prohibition can effectively institutionalize that exception. Applying such a scenario to targeted killings threatens to eviscerate the human rights law prohibition against the arbitrary deprivation of life. In addition, drone killing of anyone other than the target (family members or others in the vicinity, for example) would be an arbitrary deprivation of life under human rights law and could result in State responsibility and individual criminal liability. [my emphasis]

So by phrasing the question as he did, specifically limiting it to one of the few places where it is legal, Tapper invited Panetta to claim legality for the wider drone program.

Now, Tapper prefaces this question by noting that Panetta can’t discuss classified programs, perhaps suggesting that the drone attacks in countries with which we are not at war are a secret (though our first strike in Yemen was widely reported in 2002!).

But if the effect of the question, as asked, is to allow the government to specifically obscure the legal issues, is it really worth asking?

32 replies
  1. BoxTurtle says:

    Perhaps that softball was the price for getting Panette to come on in the first place.

    Why would the admin worry about legal issues? They control DOJ, and congress is not going to impeach over a bunch of Scary Brown Moslems.

    Most of America isn’t paying attention. And most of those that are paying attention disagree strongly with the opinions expressed here.

    Boxturtle (As long as they keep our fscking gas prices low, the government can do as it pleases)

  2. Mary says:

    Will you give us your personal assurance that everything the CIA is doing in Pakistan is compliant with US and international law

    Uh, yeah, bc a) Panetta is the law expert and b) someone who is a criminal is going to just blink in wonder at that question and say, oh wowser, you got me!

    All those personal assurances from Bush – and Obama – have meant what over the last few years?

    Tapper may have done a lot more than I would have expected – I don’t know bc I quit watching all this stuff a long time back when it had been years since I heard any of the questions I thought would be asked actually get asked.

    Did he ask him about Warren and if the CIA’s now exposed history of threatening rape against family members or threatening to have third party govs like Egypt rape those family members might have laid a foundation for CIA agents to become rapists? Or, lets see, how the CIA lost al-Libi to Libya to start with and what they did to get him back, bc, after all, Mikey Hayden says it’s only by torturing people like al-Libi that we’ll ever find out anything about what kind of toothpaste aQ uses.

    Hmm, locations of KSM’s children or wife? CIA knowledge of Pakistan’s claim that Aafia Siddiqui’s daughter has turned up after being held at Bagram? Her still missing little brother? Whatever happened to Noor al-Deen? How many *mistakes* like el-Masri and Arar the CIA is continuing to cover up? When the August 2002 memo by the CIA on the innocence of GITMO detainees is going to be released?

    What he has to say to Arar’s children and can he even name them? Any thoughts on the long term and short term impact of 2million Iraqi refugees, forced to give up their homes and lives by America’s invasion? Lies by the CIA to Congress, the press and people on CIA briefings and CIA timing of tortures and CIA destructions of evidence? The close CIA/Blackwater kinship via its new contracts with Xe and CIA influence on the DOJ decisions not to seek criminal indictments re: Sudan/Xe (and sure, having Panetta say, umpuh, notsies us-ees – that would be enough to put closed to that subject too, right?)

    I know there’s a lot you get out of these things, EW, to help predict what going on where and who’s spinning what for whom, and I guess this likely has something to do with the Holder/Bull and the supposed upcoming revelations – and maybe have a bit to do, as well, with the sighs of relief torturers and murders get knowing that Kagan is the next up nominee, but I would so much rather muck stalls than listen to something like a Trapper/Panetta spin session.

  3. Mary says:

    Back to the topic – drones – what was the question/response on the consequences of mistakes? When the CIA’s drone intel is the same kind of intel that has helped them catch Bin Laden um lose al-Libi um find the WMDs , um, staring over, uh, “Given that the drones are ONLY even arguably legal to the extent you intel is dead on and you are actually killing “al-Qaeda” and not random German’s named el-Masri, what happens when you get it wrong? ”

    And, btw, if it is so “legal” to bomb with drones in Pakistan, how about London? There have been terrorist stikes there – can the CIA “legally” use drones to take out Binyam Mohamed before his lawsuits progress to embarassing revelations? What about taking out that terrorist, Maher Arar, in Canada? Or if not Arar, can they at least hit Fake Lake?

    So many disconnects – listening to these things is like getting geared up to work a puzzle that has half the pieces missing and junk of other puzzle pieces intermingled. It’s a lot of crappy detail work to get to something not much worth having. *sigh* I’m glad you do it EW, but I’m drifting increasingly towards that “you kids get off my lawn” stage.

  4. earlofhuntingdon says:

    A reporter can ask a question so as to give his subject cover or to open up the topic to detailed, rational inquiry. Mr. Tapper seems to be doing the former. Was that the cost of his access and the reason Panetta gave it?

    • BoxTurtle says:

      He’s full of it. If we assume that Iran has declared all it’s enriched Urainium and all of it’s centrifuges, then if they decided today to to build a bomb we would have 1 years warning at best. Iran already has workable designs for weapons if they want one, they need only fissle material.

      Naturally, the fact that Iran has made no move to go beyond 20% or to move their LEU out of sight will not be noted. Nor will they discuss delvery systems, other than to state that such a device could fit into a standard shipping container.

      I’m not sure anybody is telling the truth about Iran. Not us, certainly. Not Iran.

      Boxturtle (Ah, what the hell. Best to err on the side of caution and nuke ’em now, right?)

    • Phoenix Woman says:

      Hell, he was doing the “Iran has enough material for two bombs RIGHT NOW!” schtick today. Sorry, gang, but so far there’s only been one nation that actually used the suckers in combat — and it wasn’t any of the bad guys we love to point at. If Iran gets the Bomb, it might even make the Likudniks back the frick off — they’ll still be woofing, but they’ll know better than to try anything; they want the US to do it for them, and Obama, whatever else he may be, is not stupid enough to attack Shiite-dominated Iran when the main reason Iraq isn’t a total clusterfuck right now is because of the Shiite truce with US forces.

      The two nations the world most fears will lob bombs at each other are India and Pakistan — and if India managed to refrain from nuking Islamabad after Pakistani terrorists attacked the Indian Parliament, there’s not much more short of an actual nuke tossed its way that would get India to use its arsenal. The main thing keeping Pakistan from using its own arsenal is the fact that it has one-eighth of India’s population and not quite as much technical expertise; it can kill a fair amount of Indian citizens, but India can wipe it off the map twice over, though it would suffer grievously in the contest.

  5. Mary says:

    But if the effect of the question, as asked, is to allow the government to specifically obscure the legal issues, is it really worth asking?

    I really loved the Stewart bit after the RS article on McChrystal came out, where he looped and linked all the reporters responding in horror to the thought that the reporter would now have lost something way more important than the story – access.

  6. fatster says:

    O/T and pls excuse the interruption. Popping up all over the internet: Sen. Byrd (D-VA) in hospital–“serious”.

  7. mattcarmody says:

    I wanna see how this administration dances around this issue when the first person trying to cross the border between the US and Mexico is killed by a drone. Will drugs be planted on the body to make it seem less heinous a crime?

    How will the people in this country react to such an act (aside from Arizona)? Will that be the straw that breaks the camel’s back and finally gets people into the streets? Sadly, I don’t think anything will generate mass demonstrations in this country and if anything does all the weapons of crowd control are being previewed in Toronto.

    • BoxTurtle says:

      They’ll trumpet the death to the heavens as an example of the New Get Tough policy.

      There will be much cheering on the part of the people. Most talk show hosts will say it’s about time. Callers will want to know why we aren’t doing it more often.

      If it gets people into the streets, it will be in demonstations for more of the same.

      Boxturtle (The difference between a pessimist and a realist is the pessimist is right more often)

  8. Phoenix Woman says:

    Speaking of Tapper: Amazing, that EW merely says “blowjob” and the corporate legacy media drones clutch their pearls and scramble over each other in the fight to occupy the fainting couch, yet Tapper gives rhetorical hummers on a gasbag show and none of the professional pearl-clutchers bats an eye.

    • PJEvans says:

      The Village has a leash on Tapper and thus he’s safe to have around, but they can’t handle ew.

      • BoxTurtle says:

        You can put as many leashes on a tiger as you wish. Won’t help much.

        Boxturtle (Difference between a tiger and a DFH blogger like Marcy is about two cups of coffee)

  9. JohnLopresti says:

    Like the US procrastinations and semantic calisthenics around habeas for stateless actor detainees, international law has some imprecision with respect to impending robotic **engagement**. I think Panetta does not have the answer, nor do intel and supreme courts in other firstworld nations, yet.

  10. canadianbeaver says:

    Panetta: There’s no question that we are abiding by international law, and the law of war

    War? What war you sack of crap? International law states it is ILLEGAL to invade and kill in a sovereign nation without provoking. When did Afghanistan attack anyone? And what “war”? Lying bastards should all be parachuted into anywhere that sectarian violence is rampant, and let them lie their way out. Good luck Panetta. Sack of crap.

    • jack54 says:

      When you make the laws of course you won’t be breaking them.

      Like on Wall St. if there is no law against it then you can’t be breaking it.
      It may not be ethical but who care about ethics. Like Ken Lay (ENRON) said who cares if grandma freezes to death.

    • jack54 says:

      Also if you’re the one making the law and you decide you don’t like it just change it. No Big Deal

    • MarkH says:

      International law states it is ILLEGAL to invade and kill in a sovereign nation without provoking. When did Afghanistan attack anyone?

      Are we killing a sovereign nation or helping it to grow stronger?
      You’re the idiot here. Panetta is just doing his job.

      Are there ANY Democrats left on this blog?

  11. jack54 says:

    We’re defending this country by invading sovereign nations, and killing their civilians.

    Good one Pannetta. I thought you were an asshole when you were in Ca legislature and you’re still an asshole. He is like a bad penny.

  12. earlofhuntingdon says:

    Afghanistan is a failed state with no political infrastructure independent of those its colonial occupiers. We are neither killing a sovereign nation or helping it to grow; we are bending a tribal state to our interests as was done in Africa by colonial powers last century. We are killing lots of Afghans, though, with no clear strategy for being there, for “winning” or for getting out. What we are doing seems to give little thought to how many enemies our own killing makes.

  13. earlofhuntingdon says:

    “Success” is no more an exit strategy than hope, the pablum offered up by Ross Douthat or David Brooks to the contrary. It is, however, a recipe for staying in Afghanistan indefinitely, or at least as long as France stayed in Algeria or Britain in East Africa.

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