Following a U.S. election campaign dominated by questions of temperament and fitness to carry the nuclear football, the new President will also inherit one of the most troubling but little discussed legacies of the Obama administration: the limitless capacity to assassinate anyone by armed drone.
“We now have this very significant bureaucratic and legal infrastructure to support targeted killing, and there’s virtually no oversight by Congress or the courts of the lawfulness of these strikes,” says Jameel Jaffer. The Kingston-born human rights lawyer and former law clerk for Supreme Court Justice Beverley McLachlin, has spent the past 15 years on the front lines of U.S. court battles challenging the untold layers of government secrecy surrounding war on terror practices from indefinite detention and wiretapping to torture.
“Once you accept the concept that the battlefield is borderless and war powers can be used anywhere, you open up [the potential for] all sorts of abuses,” says Jaffer, who delivers the 11th Annual Eva Holtby Lecture on Contemporary Culture at the Royal Ontario Museum November 15. He will also be signing copies of his new book, The Drone Memos: Targeted Killing, Secrecy, and the Law, a partially-redacted collection of originally top secret memos and documents in which some of the government’s leading lawyers have twisted themselves like pretzels to justify abuses that Jaffer says would have been unthinkable a generation ago.
“When Bush proposed extrajudicial detention, Americans were quite rightly alarmed and outraged, but when Obama authorized extrajudicial killings, Americans were for the most part indifferent,” Jaffer says, noting part of the reason for that the faith Americans placed in Obama following the bleak Bush years.
“But you cannot invest that kind of power in the presidency just because of the person who occupies that spot at a certain point in time, because someone else will eventually occupy that spot,” says Jaffer. “And when they inherit this virtually unchecked power, we have very little idea how they are going to use it, because we don’t know what the world will look like in a few years. Something might happen that makes the resort to this kind of power much more appealing. To me that seems crazy.”
Drone warfare – in which pilots sitting in Nevada and New York State military bunkers remotely pilot unmanned aerial vehicles armed with real-time video cameras and Hellfire missiles halfway around the globe – has resulted in thousands of civilian casualties in Africa, Asia, and the Middle East.
In 2012, the New York Times reported the calculus for the administration’s claims of extremely low drone strike civilian casualties was based on considering “all military-age males in a strike zone as combatants unless there is explicit intelligence posthumously proving them innocent.”
But much of the assassination program’s legal schematics remain secret, from why people are targeted to how someone can be defined as an “imminent threat” when they may be on a target list for months at a time.
Jaffer has spent years in the courts trying to force disclosure of the documentation behind those killings, but is frustrated with a judicial system that continues to defer to the administration’s national security confidentiality claims.
Similar legal fights may be in store here as the Canadian military pushes for a fleet of its own armed drones, also known as UAVs (Unmanned Aerial Vehicles) which top soldier General Jonathan Vance touted at a Senate Defence Committee meeting last March.
Vance told Senators that he is prioritizing the Joint Unmanned Surveillance and Target Acquisition System (JUSTAS), and earlier this year, Public Works Canada put out a Request for Information to weapons manufacturers to fulfill the program’s mandate, whose parameters appear to raise the very same profound legal, political, and moral questions Jaffer has advanced in U.S. courts.
The 88-page JUSTAS document presents seven possible Canadian drone mission scenarios for the use of UAVs which appear to share the Obama administration’s shadowy targeted killings rationale. The document envisions a hypothetical “Expeditionary ISR/Strike Scenario” with Canadian Forces in Afghanistan performing reconnaissance for a coalition convoy, during which drone pilots conduct “Pattern of Life Assessments” as they look for “High-Payoff Targets” on the approved “Joint Prioritized Target List.”
As that theoretical mission progresses, the pilot crew spots three Fighting Aged Males (FAMs) “standing near a long wall close to the road that the convoy is traveling on,” with one holding a small radio or cell phone. When it appears that “there is a shovel leaning against the wall next to the three FAMs,” and that some nearby dirt seems to have been disturbed, they suddenly become labeled as combatants, and the use of force – in this instance one Hellfire Missile and two 250-lbs GBU 48 laser guided bombs – is authorized.
The consideration of such a scenario raises significant questions about the extent to which Canadian officials will develop a similar targeted killing infrastructure to their American cousins. How will extrajudicial executions be justified by Trudeau’s Justice Department lawyers? And given Ottawa’s broad definition of Canadian interests, will the use of UAVs include non-battlefield scenarios targets residing in countries with which Canada is not officially at war?
Closer to home, the JUSTAS document posits another potential scenario where drones could be put to domestic use: a Quebec G20 summit where “several groups have openly indicated their intent to protest and intelligence indicates that radical elements may exploit the presence of international media to further their anti-capitalist cause by disrupting the Summit.”
Here the document takes readers through the log of a possible drone mission, with demonstrators referred to as “moving targets” and drones employed to “assist ground security forces [to] control a crowd of protestors.” Later on, the drone crew works with a security team and “vectors them to the area where they spot [a] vehicle and intercept it, identify the occupants and ascertain that the individuals were attempting to hang a banner concerning global warming.”
Jaffer says that as militarized drone use appears to be on the Canadian horizon, “the public ought to know what the government is doing, and they should be able to assess how the use of this kind of violence is likely to change both the society in which the violence is used and the society that authorizes the use of it.”
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