U.S. Drones Navigate
Murky Legal Path In Pakistan
by DINA TEMPLE-RASTON October 6, 2012
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DO – the second theory
– if unwilling and unable, territorial integrity can be undercut -- is also as
much controversial
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The U.S. has been
carrying out drone strikes in Pakistan for some eight years, but it's done so
under a policy that has emerged piecemeal over that time.
"It started in
2004, when drones were really an oddity," says Daniel Markey, a senior
fellow at the Council on Foreign Relations. He was on the State Department's
policy planning staff when it all started during the Bush administration.
"The first
drone attack by the United States was not admitted to by the U.S.
government," Markey says, "and the Pakistani government at
the time, run by Gen. [Pervez] Musharraf, took responsibility for that
attack and claimed that it was not a drone, but that in fact was a
Pakistani strike."
Musharraf was
Pakistan's president at the time. The ruse worked when drone strikes were
few and far between. But then, Markey says, "this kind of charade started
to unravel."
"And as that
unraveling became more painful for the Pakistanis, they changed their
tune," he says. "And instead of taking credit, they started to
complain about them publicly — while privately endorsing them."
U.S. officials say
that from 2009 until about six months ago, there was consent from
the Pakistanis for what the Defense Department calls a "foreign internal
defense mission." Christopher Swift, a fellow at the University of
Virginia Law School, used to track terrorism financing for the Treasury
Department.
"In international
law, it is not illegal for a country to go into another country if they are
invited," he says. "The best way to think about it is if you are
having a fire in your house, and the neighbor comes to help you put out the
fire, that neighbor isn't trespassing if you've invited them."
In other words, the
U.S. was helping Pakistan fight its fires: al-Qaida and its associated groups,
individuals who threatened both the U.S. and Pakistan.
The way it used to
work is that the U.S. would send target sets to Islamabad, and the Pakistanis
would respond, sometimes offering more information. It was collaborative.
But that started to
change after the raid that killed Osama bin Laden. Now, when U.S.
officials send targeting information, the Pakistanis merely acknowledge it — without
the back and forth.
"The conclusion
now seems to be that it is still possible to construe what Pakistan is
doing as providing tacit consent," says Ashley Deeks, a former
State Department lawyer. Now she's an associate professor at University of
Virginia Law School.
"But you can
imagine Pakistan taking one of a number of steps from here on that unwinds that
tacit consent even further," she says.
For example, it could
raise a diplomatic objection, like a formal complaint at the United
Nations. Or it could stop clearing air space, something it does now. It
could also just shoot down the drone — drones are slow.
But Pakistan hasn't
done any of those things. And even if Pakistan objected more formally, it
probably wouldn't end the drone attacks because there is another legal theory
at work.
"The second legal
justification — the underlying legal justification for using force against the
groups it's using force against — is the self-defense theory," Deeks says.
That theory basically
says that because the U.S. is targeting groups in Pakistan linked to the Sept.
11 attacks and the war in Afghanistan, the U.S. claims the right to target
them. Even without consent.
The argument leaves
Pakistan without much say in the matter.
