Justice and UAVs

1. Justice and UAVs A look into court cases both on a national and international scale

2. Introduction • Court cases in the United States • ACLU v CIA • State of North Dakota v Rodney Brossart • Court cases around the world • Al-Aulaqi v Panetta • Malik Noor Khan v Federation of Pakistan • FFR v Federation of Pakistan • FFR’s Application to the English High Court of Justice • FFR’s Application to the UN Human Rights Council

3. ACLU v CIA • Centered around an FOIA request from ACLU • Submitted on Jan 13, 2010, verdict on March 15th, 2013 • Pertaining to the use of UAVs to carry out targeted killings • FOIA request sought “records pertaining to the use of unmanned aerial vehicles (‘UAVs’)– commonly referred to as ‘drones’…-- by the CIA and the Armed Forces for the purpose of killing targeted individuals”1

4. CIA Response • CIA’s Glomar response • Declined to either confirm or deny the existence of any responsive records • Glomar response is acceptable if… • Admitting the existence of such records would endanger national security • No public official has admitted to the existence of such records in the public domain. Argued on grounds of whether the CIA itself was involved in, or interested in such strikes.

5. ACLU Argument • CIA admitting they have documents regarding drone strikes wouldn’t reveal whether or not the CIA was actually involved with drone strikes. • It would reveal if the CIA had an intelligence interest in drone strikes. • Core question: • Is it “logical or plausible” for the CIA to contend that it would reveal something not already officially acknowledged regarding whether CIA does or does not have “at least an intelligence interest” in drone strikes?

6. Verdict ACLU argued that public officials had admitted to the existence of such documents. • The President acknowledged that the US engages in drone strikes in a speech • John Brennan ( US counter terrorism advisor) said, “we draw on the full range of our intelligence capabilities” so that a better decision can be made regarding drone strikes. • In 2009, Director of the CIA Leon Panetta stated that drone strikes were very effective because of their precision and minimal collateral damage.

7. Verdict (continued) • By statutory definition, the CIA is part of the US’s “intelligence capabilities.” • Panetta’s quantitative statement implies he had examined CIA documents. • It is therefore neither logical nor plausible to say that the CIA does not have any documents relating to drones. • US District Court of Appeals ruled that the CIA must admit if they have documents regarding drone strikes.

8. Result and Implications • CIA acknowledged that it does have documents concerning targeted killings • They were required to give examples… • Admitted to having documents from which the President and Panetta drew their speeches from. • Public already knew about these documents from the court case. • The case shows that the CIA is very secretive about their involvement in drone strikes.

9. State of North Dakota v Brossart2006 • Overview: • Drones were used to determine if Brossart was armed before law enforcement conducted the arrest raid. • Case: • Brossart’s lawyer argued that all criminal charges should be dismissed because of the use of UAS is a violation of Brossart’s 4th Amendment right to privacy.

10. Case Arguments • Defendant cited Kyllo v. United States (2001), which ruled that “obtaining information by sense-enhancing technology not available to the general public will be subject to constitutional protections against unreasonable searches and seizures.”2 • UAV wasn’t used to determine if a crime had been committed. • UAV was used to determine if the defendant was armed during the arrest raid.2

11. Result • The court found the use of UAVs in conducting an arrest raid to ensure officer safety is constitutional. • Kyllo v United States doesn’t apply here because the defendant was already charged. • The UAV wasn’t used to find evidence with which a person could be charged, and therefore was not a violation of 4th amendment rights.

12. International Cases • International cases stem from two UAV attacks in Yemen and in the Federally Administered Tribal Areas (FATA) of Northern Pakistan • Three main court cases: • Al-Aulaqi Family, Yemen • Malik Noor Khan v. Federation for Pakistan, Pakistan • FFR v Federation for Pakistan Two “applications” • UN Human Rights Counsel • English High Court of Justice

13. Al-Auaqi Family • Timeline: • August 30th, 2010: • Center for Constitutional Rights (CCR) and ACLU filed Al-Aulaqi v Obama • On behalf of Nasser Al-Aulaqi challenging the government’s decision to authorize the targeted killing of US citizen Anwar Al-Aulaqi(Nasser’s son)

14. Al-Auaqi Family (continued) • December 7th, 2010: • US District Court Judge Bates dismissed the suit on procedural grounds, ruling that Nasser did not have legal standing to challenge the targeting of his son • “How is it that judicial approval is required when the US decides to target a US citizen overseas for electronic surveillance, but that, according to defendants, judicial scrutiny is prohibited when the US decides to target a US citizen overseas for death?”3

15. Al-Auaqi Family (continued) • September 30th2011 • Anwar Al-Auaqi was killed by US drone strikes. • October 14th, 2011 • US drone strikes killed Anwar’s son Abdulrahman who was a US citizen. • July 18th, 2012 • CCR and ACLU filed Al-Aulaqi v Panetta on behalf of Nasser Al-Aulaqi • Wanted to secure some accountability from the government for killing two US citizens.

16. Al-Aulaqi v Panetta • Anwar • Senior member of Al-Qaeda • Involved with Umar Farouk Abdulmatallab’s attempt at blowing up an airplane bound for Detroit on Christmas day 2009. • May 22nd, 2013 • Attorney General Eric H. Holder, Jr. • US government targeted and killed Anwar Al-Aulaqi. • Three other US citizens will killed by UAVs in the same time period and “…were not specifically targeted by the US.” • Abdulrahman Al-Aulaqi, Samir Khan, and Jude Kenan Mohammed.

17. Case Status • Case is still ongoing • Current Status: • Department of Justice has moved to dismiss the case • Argued there is no role for the judiciary in reviewing the claims because they raise “political questions” and national security concerns and that the defendants (the US government) should be immune.3

18. Events in Pakistan • March 17th, 2011 • Almost 50 people were killed in the Federally Administered Tribal Areas (FATA) in Waziristan, Pakistan next to the Afghanistan border. • US executed the attacked with UAVs and Hellfire missiles. • Based off (faulty?) intelligence stating that there was a meeting of senior Taliban members in Waziristan.

19. The Meeting (Jirga) • The meeting was a peaceful meeting of several different tribe leaders • Resolving a Chromite mining dispute5 • Tribal leaders had notified the US of the meeting, saying that it was non-violent and peaceful. • Meeting was bombed with Hellfire missiles fired from a UAV

20. The Cases (July-November 2012) • Foundation for Fundamental Rights (FFR) brought two cases against the Federation of Pakistan. • One on behalf of Malik Noor Khan, suing for the death of his father in the drone strike. • Other on behalf of eight people who lost family in the drone strikes. • Brought cases to the UK and the UN • English High Court of Justice • UN Human Rights Council

21. Malik Noor Khan v Federation of Pakistan • Malik Noor Khan’s father, Malik Daud Khan was a tribal leader killed in the attack • No affiliation with any terrorist organization • Common practice in the FATA for people to give the CIA faulty intelligence in exchange for money and to settle tribal disputes.5 • Malik Noor seeks compensation from Pakistani government for not preventing the attacks or doing anything to retaliate.

22. FFR v Federation for Pakistan • Public interest litigation • On behalf of eight people who lost family members • Wants the Pakistani government to: • Assert it’s legal rights with the Security Council of the UN • Make the US stop further drone strikes in the region

23. Results of FFR v Federation of Pakistan • Case went to the Peshawar High Court (PHC) • Ruled on May 9th, 2013 that US drone strikes on targets in Pakistan: • Illegally breached national sovereignty • Were in “blatant violation of Basic Human Rights”6 • Were in violation of Geneva Conventions • PHC ordered that the Pakistani government ensure drone strikes stop.6 • Court also ordered the US to “compensate all the victims’ families in the kind of US dollars”6 • Ruled that Pakistan had the legal obligation to stop the drone program in Pakistan and had every right to retaliate and shoot down the drones.

24. Results of Pakistani Cases • Ultimately, the cases drew greater attention to the ability for 2nd or 3rd world countries to protect the rights of it’s people who are being killed by another country, with whom they are not at war.

25. FFR Application to UN Human Rights Counsel • Claims: • No plausible legal basis for the attacks • No war between the US and Pakistan • Pakistan cannot legally give consent for killing its own citizens by American drones. • US has not claimed self-defense • Have not reported the carrying out of drone attacks on Pakistani territory to the Security Council as required by article 51 (self defense).

26. English High Court of Justice • October 23-24, 2012: • Claimed that UK intelligence officers may an accessory to murder because they shared information with the CIA that lead to the deaths in Pakistan caused by US drone strikes7 • Judicial review would mean delving into issues of national security.

27. English High Court of Justice • English courts would be ruling on the legality of the CIA’s drone program. • Would need to explore whether the Pakistani government gave consent • Has several potentially serious diplomatic and international consequences.

28. English High Court of Justice • Choose not to hear the case: • If a person is going to be an accessory to murder, then murder must be illegal in that person’s country. • Killing alleged terrorists is not illegal in the US, so there is no legal basis for charging UK intelligence officers with accessory to murder of terrorists. • Not the job of the English court to determine if a foreigner who murders another foreigner in another sovereign nation is guilty of murder. • Nothing in English law gives it’s court the power to decide whatconstitutes murder in another country.

29. Summary • ACLU v CIA • State of North Dakota v Brossart • Al-Aulaqi v Panetta • Malik Noor Khan v Federation of Pakistan • FFR v Federation of Pakistan • Application to the UN Human Rights Counsel • Application to the English High Court of Justice

30. Questions?

31. References • 1http://www.cadc.uscourts.gov/internet/opinions.nsf/6471FF102FC611A685257B2F004DEA2A/$file/11-5320-1425559.pdf • 2http://www.slate.com/blogs/future_tense/2012/05/04/brossart_case_cattle_theft_allegations_and_law_enforcement_use_of_domestic_drones_.html • 3http://www.ccrjustice.org/files/2013.7.16_Al-Aulaqi%20v%20%20Panetta%20Factsheet.pdf • 4https://www.aclu.org/files/assets/may_22_response_exhibit_1.pdf • 5http://rightsadvocacy.org/ffrs-current-litigation • 6http://www.opensocietyfoundations.org/voices/case-watch-court-pakistan-addresses-us-drone-attacks • 7http://www.thebureauinvestigates.com/blog/2012/10/25/gchq-intel-sharing-for-drone-strikes-may-be-accessory-to-murder-court-hears/