US believes it has Pakistan’s ‘tacit consent’ for drone strikes: WSJ

Daily Times Monitor

LAHORE: About once a month, the Central Intelligence Agency sends a fax to a general at Pakistan’s intelligence service outlining broad areas where the US intends to conduct strikes with drone aircraft, the Wall Street Journal quoted US officials as saying.

The Pakistanis, who in public oppose the programme, don’t respond.

On this basis, plus the fact that Pakistan continues to clear airspace in the targeted areas, the US government concludes it has tacit consent to conduct strikes within the borders of a sovereign nation, according to officials familiar with the programme.

Representatives of the White House’s National Security Council and CIA declined to discuss Pakistani consent, saying such information was classified. In public speeches, Obama administration officials have portrayed the US’s use of drones to kill wanted terrorists around the world as being on firm legal ground. In those speeches, officials stopped short of directly discussing the CIA’s drone programme in Pakistan because the operations are covert.

Now, the rationale used by the administration, interpreting Pakistan’s acquiescence as a green light, has set off alarms among some administration legal officials. In particular, lawyers at the US State Department, including top legal adviser Harold Koh, believe this rationale veers near the edge of what can be considered permission, though they still think the programme is legal, officials say.

Two senior administration officials described the approach as interpreting Pakistan’s silence as a “yes”. One dubbed the US approach “cowboy behaviour”.

In a reflection of the programme’s long-term legal uncertainty and precedent-setting nature, a group of lawyers in the administration known as “the council of counsels” is trying to develop a more sustainable framework for how governments should use such weapons.

In public, Pakistan has repeatedly expressed opposition to the drone program, and about 10 months ago closed the CIA’s only drone base in the country. In private, some Pakistani officials say they don’t consider their actions equivalent to providing consent. They say Pakistan has considered shooting down a drone to reassert control over the country’s airspace but shelved the idea as needlessly provocative. Pakistan also has considered challenging the legality of the programme at the United Nations.

“No country and no people have suffered more in the epic struggle against terrorism than Pakistan,” President Asif Ali Zardari told the UN General Assembly on Tuesday. “Drone strikes and civilian casualties on our territory add to the complexity of our battle for hearts and minds through this epic struggle.”

A former Pakistani official who remains close to the programme said Pakistan believes the CIA continues to send notifications for the sole purpose of giving it legal cover.

It is possible Pakistan is playing both sides. Ashley Deeks, a former US State Department assistant legal adviser under Koh who is now at the University of Virginia, said a lack of a Pakistani response to US notifications might be a way for Pakistan to meet seemingly contradictory goals — letting the CIA continue using its airspace but also distancing the government of Pakistan from the programme, which is deeply unpopular among Pakistanis.

Legal experts say US law gives the government broad latitude to pursue al Qaeda and its affiliates wherever they may be. A joint resolution of Congress after the September 11, 2001, attacks authorised the president to use force against the planners of the attacks and those who harbour them. Then president George Bush that month signed a classified order known as a “finding” authorising covert action against al Qaeda.

In an April speech, White House Counterterrorism Adviser John Brennan said the administration has concluded there is nothing in international law barring the US from using lethal force against a threat to the US, despite the absence of a declared war, provided the country involved consents or is unable or unwilling to take action against the threat.

Benjamin Wittes, a senior fellow at the Brookings Institution, said the US drone approach in Pakistan is getting closer to the edge. “It doesn’t mean it is illegal, but you are at the margins of what can reasonably be construed as consent,” he said.

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