Tag Archive | "Obama"

Senate Intelligence Chair Sen. Dianne Feinstein, D-Calif.

Critical Analysis: Distinguishing Obama’s Drone Program from Bush’s Interrogation Program

Hours before the “Torture Report” was release by the Senate, former speechwriter for President George W. Bush Michael Gerson wrote an op-ed where he called Senators Feinstein’s and Udall’s decisions to release the report reckless in what he referred to as “a massive dump of intelligence.” In making his argument, Mr. Gerson misconstrues principles of international law that should be clarified while also setting a dangerous precedent.

Mr. Gerson attempts to equate President Obama’s drone program with President Bush’s torture program (Mr. Gerson does not use the term torture, instead opting for “harsh interrogation,” most reviews of the report conclude that the CIA engaged in torture). Mr. Gerson states that there is only “a subtle moral distinction” between these two attempts to keep the United States safe. However, there is more than a subtle moral distinction between these programs, one that calls his argument into question.

Senate Intelligence Chair Sen. Dianne Feinstein, D-Calif.

In this June 3, 2014 file photo, Senate Intelligence Chair Sen. Dianne Feinstein, D-Calif. is pursued by reporters on Capitol Hill in Washington. Secretary of State John Kerry asked Feinstein on Friday to “consider” the timing of the expected release in coming days of a report on harsh CIA interrogation techniques.
Photo/Caption Credit: Manuel Balce Ceneta/AP, Washington Post

One of these programs can be justifiable under international law while the other can never be justified under international law. Before establishing these distinctions, it is important to highlight that Mr. Gerson points out in his piece that this torture report is being released in “the middle of a war.” This is important because this sets parameters of acceptable actions. During a time of war, which the United States has engaged in since September 11th, 2011, the use of force that results in the loss of human life is permissible so long as it meets the jus in bello requirements. This requires the use of force to be proportional, necessary, and utilize distinction. This is in opposition to torture, which is never justifiable under international law. The United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment specifically states in Article 2(2) that not even a state of war permits a state to engage in torture.

Therefore, there is more than a moral distinction that separates Obama’s drone program and Bush’s torture program. Obama’s program has a legal foundation in international law if certain conditions are met while Bush’s program is a violation of international law no matter the circumstances.

This brings me to Mr. Gerson’s more subtle implication in his piece. He warns President Obama and Senate democrats that in the future a different Congress may want to look into the current drone program. Mr. Gerson’s veiled threat implies that because they are investigating President Bush’s torture program, they are opening themselves to similar investigations by future administrations and members of Congress.

Mr. Gerson’s threat is disturbing. The United States is supposed to be a nation of laws. The Senate is investigating the torture program because it appears to have broken international law. Mr. Gerson suggests that holding United States leaders accountable for violations of international law is nothing more than political posturing. This suggestion undermines the foundation that the United States is a nation of laws.

While President Obama’s use of force may be justified under international law, I do not necessary claim that it is. President Obama and his administration have failed to publically articulate how its drone program meets the requirements of lawful use of force under international law. Congress has a duty to investigate President Obama’s drone program to ensure that it is lawful. This duty comes from Congress’ oversight role, not from political revenge as suggested by Mr. Gerson. And if Congress concludes that President Obama’s drone program does not meet the principles of international law (proportional, necessary, and utilizing distinction), then they should take the appropriate legal actions to ensure that the United States protects its foundation as a nation of laws.


Wesley Fry is a 2014 graduate from University of Denver Sturm College of Law and former Editor-in-Chief of the Denver Journal of International Law and Policy.

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Critical Analysis: Unmanned Aerial Vehicles – Unmanned with Unknown Targets

Targets: Yemen.  Pakistan.  Somalia.  Afghanistan.  Libya.  Iraq.  Niger. International laws protect the right to life and drone strikes may well be breaking such laws by killing countless civilians.  There is a “near-certainty” standard that civilians will not become casualties but various sources indicate drone strikes occurring when the target was not in sight and when targets were traveling in close proximity to civilian vehicles.

Since 2002, the U.S. has launched 108 drone strikes in Yemen killing between 775-1,018 people.  Of those, 81-87 were civilians and 31-50 were unknown.  In December 2013, a drone strike in Yemen struck a wedding, killing 12 militants – but, once again, conflicting reports suggest the victims were civilians. The last drone strike occurred on April 21, 2014 killing 55, not counting strikes over this past weekend which hit a civilian vehicle.

Image Source: Western Journalism

US drone strikes overseas has caused many civilian casualties but the uncertainty surrounding the attacks is unsettling. Image Source: Western Journalism

On an even larger scale, since 2004, 307 drone strikes in Pakistan killed between 2,040 and 3,428 people.  Of the thousands, 258-307 civilians were killed and 199-334 “unknowns” were killed.  In Pakistan, drone strikes ceased on Christmas Day 2013 to allow peace talks between the government and the Taliban.

While the “unknown” and civilian casualty rate has decreased during the use of drones, the sheer indefiniteness of the numbers remains disturbing.  Not only is it unclear if drone strikes were involved or if it was the U.S. or another country ordering the attack, we cannot seem to tell whom we are killing.  The U.S.’s policy of secrecy prevents any source from gathering enough information to make accurate statements and leads to a great deal of “best guesses.”  Many demand the U.S. take accountability for its military actions and many demand greater transparency.

The new Amnesty International Annual Report urges the U.S. to conduct a “thorough, impartial and independent investigation” to determine if CIA personnel have violated international law by committing “arbitrary” and “extrajudicial executions.”  A guest columnist to JURIST (a non-profit organization providing objective legal news) suggests some killings appearing unlawful are in fact lawful because of self-defense or under the laws of war because they would not be arbitrary killings.  Furthermore, the columnist suggests lawful targetings can be extrajudicial and not executions because of their targeted nature.  However, one must point out, these targeted killings are killing a great many individuals who are not targeted.

During President Obama’s two terms, there have been at least 397 drone strikes.  President Bush’s term had fewer strikes but more casualties per strike on average.  A new bill that sits before the House of Representatives would force the White House to publish information on covert U.S. drone strike casualties.  The co-sponsored bill would require an annual report that would “provide a modest, but important, measure of transparency and oversight regarding the use of drones.”  The report would disclose injuries and casualties and if casualties are militants, civilians, or others.  The White House would also have to disclose how it defines militants and civilians, which would provide a great deal of insight into the statistics.

While the bill may have a negligible chance of success, the push for greater transparency is clear.  Hopefully as the demand for answers increases, the government’s accountability will increase – or at least the government will give us enough information to make informed decisions about the use of UAVs.


Lindsey Weber is a 2L at the University of Denver Sturm College of Law and the Projects & Production Editor of the Denver Journal of International Law and Policy.


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Free Syrian Army fighters aim their weapons, close to a military base, near Azaz, Syria. (Fox News)

Critical Analysis: U.S. Formally Recognizes Syria’s Main Rebel Group

Free Syrian Army fighters aim their weapons, close to a military base, near Azaz, Syria. (Fox News)

Free Syrian Army fighters aim their weapons, close to a military base, near Azaz, Syria. (Fox News)

On Tuesday, President Obama announced that the newly formed Syrian Opposition Council is the only “legitimate representative” of its country’s people.  This was a big step as the international community has increased its efforts to end Syrian President Bashar Assad’s reign.  By recognizing the Syrian Opposition Council, the U.S. joins Britain, France, and other Arab allies to recognize the Syrian rebel group.  The U.S.’ recognition comes as the Syrian government appears to have backed off using chemical weapons against rebel forces and after it was reported in the U.S. last week that the Syrian government might do so.  With this upgraded status, the Syrian Opposition Council will now receive more humanitarian and non-lethal aid from the U.S.  The U.S. may add military support for the rebel group too.  President Obama commented how the recognition comes with responsibilities and that the Syrian Opposition Council must “organize themselves effectively” and make sure “that they are representative of all the parties” including women and minority groups.

Another cautious element to recognizing the rebel group is the link between many who oppose the Assad regime and al Qaeda in Iraq.  For the first time on Tuesday, the Obama administration recognized an al Qaeda terrorist organization, Jabhat al-Nursa, as being directly tied to a powerful Syrian rebel group.  The U.S. sanctioned the terrorist group, freezing any assets it may have in the U.S. and preventing Americans from conducting business with it, out of fear that the group is becoming stronger than other rebel groups and could potentially overtake Assad’s regime in Syria.  The U.S. Treasury also publicly identified two Jabhat leaders by name for the first time on Tuesday, sanctioning them for their ties to al Qaeda.

The U.S.’s recognition of the Syrian Opposition Council comes a day before an international conference in Morocco.  The focus of the conference is to bring together 80 nations to support Syrian opposition groups.  While Secretary of State Hillary Clinton was expected to attend the conference, she has since canceled her trip due to illness.   Deputy Secretary of State William Burns will attend in her place.

Some critics have argued that the U.S.’s formal recognition of the Syrian rebel groups may be too little too late.  For instance, the recognition does nothing to change the military equation inside Syria.  President Obama’s move also does not give the opposition the legal authority of a state—the rebel forces may not have access to Syrian government money, take over the Syrian embassies globally, or enter into binding diplomatic commitments.   While the fighting inside Syria has intensified, it is unclear how this formal recognition will influence the Syrian Civil War.  What is known is that the U.S.’s formal recognition of the Syrian Opposition Council is meant as a “political shot in the arm for the opposition.”  More will soon be evident as the international conference takes place in Morocco later this week and as the fighting intensifies with each passing day.  Reports indicate that over 40,000 people have died since fighting began back in March 2011.

Dan Warhola is a 3L at the University of Denver Sturm College of Law and the Executive Editor of the Denver Journal of International Law and Policy.


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University of Denver Sturm College of Law