Monday, April 7, 2014
Last week, a Federal District Court Judge dismissed a suit filed by relatives of two individuals killed in U.S. drone attacks- Anwar al-Awlaki and Samir Khan. Both individuals were killed by a U.S. drone strike in 2011 that was designed to kill Awlaki. Khan was apparently collateral damage. A second drone strike, two weeks later, killed Awlaki’s sixteen year old son as well several other individuals. The suit alleged that U.S. government officials violated the victims’ fundamental right to due process and the right to be free from an unreasonable seizure. It is important to note that the killing of the militant cleric was no accident. In fact, according to New York Times reporter Charlie Savage, a legal memo penned by members of the Obama Administration’s Office of Legal Counsel had made the case for killing Alwaki. While there are good reasons to believe that Alwaki posed a significant threat to Americans, the decision to kill an American sets a dangerous legal precedent. It also underscores once again the latitude taken by both the Bush and Obama Administrations as a result of Congress’s decision to authorize the use of military force against al Qaeda in 2001.
There are other legal issues as well related to the escalated use of drones both by the United States and by other countries.Since 9/11, drones have become an integral component of the American arsenal in our effort to combat terrorism. Although drones reduce the economic costs of waging war and enable the U.S. to eliminate individuals who represent a security threat, the use of the drones has as led to numerous civilian casualties. Reports by the New America Foundation, Amnesty International, and several scholars estimate that the number of civilian casualties ranges from hundreds to thousands. According to Human Rights Watch estimates, “the US has carried out at least 400 drone strikes since Obama took office, reportedly killing upwards of 2,600 people.”
The United States is not alone in developing drone technology for war time purposes. While the Washington Post reported in 2010 that 50 countries were attempting to develop drone technology, more recent estimates have come close to doubling that number. Even the United Nations has gotten into the act deploying drones to observe armed conflict from a safe distance. Despite the lack of debate within the European Parliament on the matter, a report by Statewatch disclosed that a secret budget line within new EU legislation on air traffic control contained a 70 million Euro expense to develop drones for European police forces, border guards, and security services.
Unfortunately, the development of drone technology has occurred without much public debate about their proper use. Given the degree of militarization that has occurred in U.S. domestic police forces during the last thirty years, one might expect that police forces around the country will soon be clamoring to deploy the technology on U.S. soil. Given the extent to which the development of computing technology has eroded our privacy rights, the future of privacy in an age of domestic drone deployment gives us little reason to hope that those rights will not be further eroded.
Radley Balko, Rise of the Warrior Cop: The Militarization of America’s Police Forces (2013)
BBC News, 3 December 2013, “UN Starts Drone Surveillance in DR Congo.”
Charlie Savage, “Secret U.S. Memo Made Legal Case to Kill a Citizen,” 11 October 2011. New York Times.
Bruno Waterfield, 12 February 2014, “EU 'spent £320 million on surveillance drone development'.” The Telegraph.
Sunday, February 23, 2014
Comparativists are often quick to attack the fact that American prosecutors, at least on the state and county levels, are often elected. By requiring prosecutors to maintain the public's approval, as the criticism goes, we create an institution beholden to the wims of the electorate, rather than to the standards of the law. Indeed, we have seen how the hand of politics often skews prosecutorial decisions-making. One case in point is the infamous Duke Lacrosse case where, a prosecutor facing reelection, withheld exculpatory evidence and made inflammatory statements concerning the guilt of three suspects who were charged with first degree sexual offenses. Although the charges were eventually dismissed and the prosecutor disbarred, the reputational damage to the three suspects was enormous.
Yet prosecutors in civil law countries are not immune from political influence. In Germany, prosecutors are subservient to the Ministry of Justice at the federal and Land levels. One requirement of this hierarchical structure is that prosecutors are required to bring potentially newsworthy case investigations to the attention of their superiors. Although one can see the need to keep a superior in the loop of an investigation, there is a downside to this lack of secrecy. As the information is passed up the chain of command, the possibility arises that information of the investigation will leak or the investigating prosecutor may face informal pressure to dispose of the case.
One recent case in Germany is an example of this dilemma. While Chancellor Merkel was engaged in conversations with the Social Democratic Party (SPD) concerning forming a coalition government, a Christian Social Union (CSU) Minister apparently leaked details of an ongoing investigation involving a rising star in the to SPD parliamentarian Sebastian Edathy on charges involving the possession of child pornography. The CSU Minister, Hans-Peter Friedrich, has now resigned as the Berlin Public Prosecutor's Office is investigating the release of the confidential information. It is not yet clear, who leaked the information to Friedrich. However, by the time the police searched Sebastian Edathy's house, they found the remains of what appeared to be a destroyed hard drive. The police have yet to determined who tipped off Edathy.
One conclusion is clear, it may be impossible to completely banish the hand of politics from prosecutorial decision-making.