By Marjorie Cohn

November 06, 2015 "Information Clearing House" - A new whistleblower has joined the ranks of Edward Snowden, Chelsea Manning, John Kiriakou and other courageous individuals. The unnamed person, who chose to remain anonymous because of the Obama administration’s vigorous prosecution of whistleblowers, is a member of the intelligence community.

In the belief that the American public has the right to know about the “fundamentally” and “morally” flawed U.S. drone program, this source provided The Intercept with a treasure trove of secret military documents and slides that shine a critical light on the country’s killer drone program. These files confirm that the Obama administration’s policy and practice of assassination using armed drones and other methods violate the law.

The documents reveal the “kill chain” that decides who will be targeted. As the source said, “This outrageous explosion of watchlisting—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.”

These secret documents demonstrate that the administration kills innumerable civilians due to its reliance on “signals intelligence” in undeclared war zones, following cellphones or computers that may or may not be carried by suspected terrorists. The documents show that more than half the intelligence used to locate potential targets in Somalia and Yemen was based on this method.

“It isn’t a surefire method,” the source observed. “You’re relying on the fact that you do have all these powerful machines, capable of collecting extraordinary amounts of data and intelligence,” which can cause those involved to think they possess “godlike powers.”

“It’s stunning the number of instances when selectors are misattributed to certain people,” the source noted, characterizing a missile fired at a target in a group of people as a “leap of faith.”

The Obama administration has never provided accurate civilian casualty counts. In fact, CIA director and former counterterrorism adviser John Brennan falsely claimed in 2011 that no civilians had been killed in drone strikes in nearly a year. In actuality, many people who are not the intended targets of the strikes are killed. “The Drone Papers” tell us the administration labels unidentified persons who are killed in a drone attack “enemies killed in action,” unless there is evidence posthumously proving them innocent. That “is insane,” the source said. “But [the intelligence community has] made ourselves comfortable with that.” The source added, “They made the numbers themselves so they can get away with writing off most of the kills as legitimate.”

The administration’s practice of minimizing the civilian casualties is “exaggerating at best, if not outright lies,” according to the source.

Since the U.S. is involved in armed conflict in Iraq and Afghanistan, international humanitarian law—namely, the Geneva Conventions—must be applied to assess the legality of targeted killing. The Geneva Conventions provide that only combatants may be targeted.

From January 2012 to February 2013, a campaign dubbed Operation Haymaker was carried out in the Afghan provinces of Kunar and Nuristan. According to “The Drone Papers,” during a five-month period almost 90 percent of the people killed in airstrikes were not the intended targets. This campaign paralleled an increase in drone attacks and civilian casualties throughout Afghanistan. What’s more, the campaign did not significantly degrade al-Qaida’s operations there.

The U.S. is violating the right to life enshrined in the International Covenant on Civil and Political Rights. Because the U.S. ratified this treaty, it constitutes binding domestic law under the Supremacy Clause of the Constitution, which states, “Treaties shall be the supreme law of the land.”

Under international humanitarian law, an “armed conflict” requires the existence of organized armed groups engaged in fighting of certain intensity. The groups must have a command structure, be governed by rules, provide military training and have organized acquisition of weapons, as well as communications infrastructure. Legal scholars, including University of Cambridge professor Christine Gray, have concluded that “the ‘war against Al-Qaeda’ does not meet the threshold of intensity of a non-international armed conflict, and Al-Qaeda does not meet the threshold of an organized armed group.”

The U.S. is not involved in “armed conflict” in Pakistan, Yemen and Somalia. Thus, the law enforcement model must be applied to assess the legality of actions in those countries. This model limits the use of lethal force to situations where there is an imminent threat to life and nonlethal measures would be inadequate.

In 2013, as President Obama gave a speech at the National Defense University, the administration released a fact sheet that said the target must pose a “continuing, imminent threat to US persons” before lethal force may be used. But Obama has waived the imminence requirement in Pakistan. 

Although a spokesperson for the National Security Council told The Intercept that “those guidelines remain in effect today,” “The Drone Papers” state that the target need only present “a threat to US interest or personnel.” This is a far cry from an imminence requirement. And once the president signs off on a target, U.S. forces have 60 days to execute the strike. A 60-day period flies in the face of the imminence mandate for the use of lethal force off the battlefield.

Philip Alston, United Nations special rapporteur on extrajudicial, summary or arbitrary executions, affirms that a targeted killing is lawful only if required to protect life and no other means—such as capture or nonlethal incapacitation—is available to protect life.

Besides being illegal, Obama’s preference for killing instead of apprehension prevents the administration from gathering crucial intelligence. Obama stated in 2013, “America does not take strikes when we have the ability to capture individual terrorists; our preference is always to detain, interrogate, and prosecute.” But Michael Flynn, former head of the Defense Intelligence Agency, told The Intercept, “We don’t capture people anymore.” Slides provided by “The Drone Papers” source cite a 2013 study by the Pentagon’s Intelligence, Surveillance, and Reconnaissance Task Force that said “kill operations significantly reduce the intelligence available from detainees and captured material.” The task force recommended capture and interrogation rather than killing in drone strikes. 

The American public is largely unaware of the high number of civilian casualties from drone strikes. A study conducted by American University professor Jeff Bachman concluded that both The New York Times and The Washington Post “substantially underrepresented the number of civilians killed in drone strikes in Pakistan and Yemen, failed to correct the public record when evidence emerged that their reporting was wrong and ignored the importance of international law.”

Gregory McNeal, an expert on national security and drones at Pepperdine School of Law, wrote that in Afghanistan and Iraq, “when collateral damage [civilian casualties] did occur, 70 percent of the time it was attributable to failed—that is, mistaken—identification.”

“Anyone caught in the vicinity is guilty by association,” “The Drone Papers” source notes. If “a drone attack kills more than one person, there is no guarantee that those persons deserved their fate. … So it’s a phenomenal gamble.”

Drones are Obama’s weapon of choice because they don’t result in U.S. casualties. “It is the politically advantageous thing to do—low cost, no U.S. casualties, gives the appearance of toughness,” according to former Director of National Intelligence Dennis Blair. “It plays well domestically, and it is unpopular only in other countries. Any damage it does to the national interest only shows up over the long term.” Part of the damage, as Flynn pointed out, is that drones make the fallen into martyrs. They create “a new reason to fight us even harder,” he said.

The United Nations charter’s mandate for peaceful resolution of disputes and prohibition of military force except in self-defense is not a pipe dream. A study by the Rand Corp. concluded that between 1968 and 2006, 43 percent of incidents involving terrorist groups ended by a “peaceful political resolution with their government,” 40 percent “were penetrated and eliminated by local police and intelligence agencies,” and only 7 percent were ended by the use of military force.

Nevertheless, The Wall Street Journal reported that the military plans to increase drone flights by 50 percent by 2019.

In describing how the special operations community views the prospective targets for assassination by drone, “The Drone Papers” source said, “They have no rights. They have no dignity. They have no humanity to themselves. They’re just a ‘selector’ to an analyst. You eventually get to a point in the target’s life cycle that you are following them, you don’t even refer to them by their actual name.” This results in “dehumanizing the people before you’ve even encountered the moral question of ‘is this a legitimate kill or not?’ ”

The American Civil Liberties Union has filed three lawsuits seeking information about the government’s use of lethal drones. Rep. Keith Ellison, co-chair of the Congressional Progressive Caucus, is calling for increased transparency and congressional oversight of the drone program. “The report makes it clear,” he noted, that “the U.S. drone program operates on highly questionable legal ground and offends our principles of justice.”

Drone pilots operate thousands of miles from their targets. But many of them suffer from post-traumatic stress disorder. Some are refusing to fly the drones. In September, the Air Force Times ran a 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. 

“The Drone Papers” source implores us to take action to stop this travesty. “We’re allowing this to happen,” the source said. “And by ‘we,’ I mean every American citizen who has access to this information now, but continues to do nothing about it.”

The newly released documents are a clarion call to us all to demand that our government stop the killing. It is illegal, it is immoral, and it makes us more vulnerable to terrorism.

Marjorie Cohn is a former president of the National Lawyers Guild and a professor at Thomas Jefferson School of Law, where she teaches criminal law and procedure, evidence, and international human rights law. She lectures throughout the world on human rights and US foreign policy.