‘Lawfare’ and the CIA’s drone war worries

Clive Stafford Smith
By: Clive Stafford Smith

Aljazeera English

American journalist Spencer Ackerman, in collaboration with documentary filmmaker Laura Poitras, just released a document related to the US drone operations leaked by National Security Agency whistleblower Edward Snowden.

The document is an article on Intellipedia, a secretive US data site where the US intelligence agencies share the material they mine on us worldwide. The entry titled “Targeted Killing: Policy, Legal and Ethical Controversy” reflects Intellipedia’s take on the work of many human rights defenders and organizations – including my own – to stop the CIA drone war worldwide.

Because of my human rights work, I have always assumed that security agencies were tracking me. Indeed, when I write an email to my wife, I sometimes add an ironic post-script to their agents apologizing for being boring. This is the first time a document that affirmatively highlights my suspicions has come to light.

While the document is troubling, I am secretly pleased to see it. Secrecy (on their part) is the refuge of some very dangerous beliefs, which lead to tragic consequences. Sunlight is the ultimate disinfectant; here is a narrow ray of light.

Their gripe here is that I was working on getting John Rizzo, erstwhile legal counsel to the CIA, prosecuted for his involvement in an illegal war being waged in the border regions of Pakistan – to which he had unwisely confessed when bragging to Newsweek in a 2011 interview. I did not honestly expect the US to extradite Rizzo to face trial in Islamabad. Still, the principle was significant: he authorized CIA strikes over several years when the US was killing people across the region in flagrant violation of humanitarian laws.

The US was not at war with Pakistan, which was a vital US ally publicly opposed to the drone attacks. Another Snowden leak demonstrated that in August 2008, Prime Minister Yusuf Raza Gilani reportedly said: “I don’t care if they do it as long as they get the right people. We’ll protest in the National Assembly and then ignore it.” That hypocrisy needed to be exposed, too.

As part of my investigation, I met with the families of many victims, and too often, the story was the same: the US had seemingly paid good money for “intelligence” on “extremists.” When collecting their cash, the informants had a simple choice: either tell the truth, take risks and identify truly dangerous people, or lie and finger someone benign. Sensibly, they generally chose the safer course. We always knew the lies they told because the press release issued by the US would tell us when they bragged about the deaths of “extremists.”

There are many horrific examples of the mistakes committed by the CIA. On October 30, 2006, a drone attack on a school killed 69 children – the headmaster had been tarred as a “militant”. On June 23, 2009, a drone attack on a funeral killed at least 80 people, but not Baitullah Mehsud, the purported target who was not there.

I voted twice for Barack Obama. After he was elected in 2008, the constitutional law professor-turned-president renounced the Bush-era policies of torture and “detention without trial”, but substituted them with “death penalty without trial” carried out by Hellfire missiles rained down by Predator drones. The number of drone attacks in Waziristan rose from a high of 36 under Bush in 2008 to 122 in 2010, Obama’s first full year.

The most emotional moment for me came in November 2011, when Imran Khan (then an opposition politician and now Pakistan’s prime minister) and I hosted a “Grand Jirga” in an Islamabad hotel. We invited scores of relatives of drone victims to discuss how to end the carnage. One was a young 16-year-old lad called Tariq Khan. I chatted to him briefly about how his innocent school friend had been killed.

Then, after Khan gave an eloquent speech about how immoral these drone attacks were, I talked about how – no doubt – there were a couple of people in the audience who were on the payroll of the CIA. I warned them they would randomly finger some people and perhaps attach a tracking device to their cars.

Little did I know how accurate this would be: within 72 hours, Tariq was driving along a winding road in Waziristan with Wahid, his 12-year-old cousin, on a visit to his auntie. Weeks later, when the media confronted an anonymous “US official” with evidence of the boys’ funeral, he continued to insist they were “militants.” I hope we can erect a monument to young Tariq one day, a reminder that a presumption of guilt can only result in tears and a thirst for revenge.

In contrast, in our litigation, we asked that John Rizzo should be given a fair trial even though he bragged about his crimes. The Snowden leak reflects the CIA’s view: the document logs our efforts under “lawfare,” the disparaging term coined by Drone Age apologists. Resolving questions by missiles is more civilized than debating them in court.

The CIA implies that I was working with “opposition forces to undermine the [US] use of remotely piloted vehicles” and states ominously that thus far, they have not developed evidence that my work was sponsored by a “violent extremist”. It never ceases to astound me how intelligence agents think that an opponent of murder will join forces with mad people who believe (like the CIA) that killing people is the way to foster peace.

I have indeed represented many people who my own country has targeted. Too many of them have been innocent civilians, too many of them children. When I think how I would react were someone to murder my child, it takes little imagination to understand why the drone program rendered the US the most hated country in the world for the entire population of Waziristan. This is, the reputation is rapidly squandered.

I do not normally believe that deterrence prevents much crime, but I am glad to say our work stopped the drone wars, at least in this region. The litigation – handled with the Foundation for Fundamental Rights in Islamabad – shrank the number of Waziristan drone attacks from one every three days in 2010 to just five in 2018 and none since.

Reprieve, an organization I founded, and I were also mentioned in another “lawfare” subsection of the same document. This time Intellipedia was pleased that we lost a case where we were trying to expose the involvement of British intelligence in the same drone mayhem since they were sharing SIGINT (Signals Intelligence) with the Americans conducting illegal executions in Pakistan (the UK is very good at tracking your mobile phone). “The ruling was a victory for the British government, whose lawyers had said that ties between Britain, the US and Pakistan could be jeopardized if a judge granted [our] request.”

I find this curious. The relations between the Italian Mafia and their US counterparts would probably be “jeopardized” if their machinations were disclosed – but does this mean that it should all be kept secret from electorates who presumably hoped their elected officials would not be involved in a conspiracy to commit homicide?

I assume the CIA has kept close tabs on all the other “lawfare” battles we have fought for justice. I hope they and their friends at MI6 learn from their grotesque mistakes. Maybe one day, they will even have the common decency to apologize to Tariq’s family and compensate their many innocent victims.

The views expressed in this article are the author’s own and do not necessarily reflect Al Jazeera’s editorial stance.

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