Drone war victims deserve US accountability, German court rules

The German court’s decision takes direct aim at the American legal justification for its targeted killing program

Published May 25, 2019 5:59AM (EDT)


The original article appears on WhoWhatWhy.org.


A German court has taken the unprecedented step of ordering its government to ensure US drone strikes comply with international law, citing evidence the US "regularly" kills civilians using an air base located on German soil.

But the most important legal victory to date in the global opposition to America's targeted-killing program, announced on March 19, has not generated a single article in the US mainstream media.

Ruling in favor of Yemeni drone attack survivors — who say they are still in danger — the court acknowledged their "right to life," noting that US drone operations in Yemen "at least in some cases violate international law."

Jennifer Gibson, a lawyer with the human-rights group Reprieve supporting the plaintiffs, told WhoWhatWhy she considers it "remarkable in its very clear statement that the [US drone] program is likely illegal."

But the Higher Administrative Court rejected the demand to actually prohibit the use of Ramstein, America's largest base outside of the US, for the transfer of data to US drone pilots.

For years, Germany's government has claimed with ever less credibility to have no knowledge of Ramstein's role. The revelations of former drone operator Brandon Bryant and the "Drone Papers" — secret military documents leaked by an anonymous source to the Intercept — show Germany is America's closest and most important ally in its global drone wars.

Because there have been "civilian casualties on a regular basis" in Yemen, the court decision calls for an independent investigation. According to the Associated Press, at least a third of those killed in 2018 were civilians.

In Yemen, any talk about international human rights law and accountability will seem meaningless. The US has backed the Saudi-led coalition against rebel Houthis in Yemen's civil war since 2015, supplying bombs for 20,000 air raids that have killed thousands of civilians. A Saudi naval blockade has left two million children starving.

Radhya al-Mutawakel, chairwoman for Yemen's Mwatana Organization for Human Rights, has spent years interviewing innocent victims of air strikes, whether by drone, fighter plane, or cruise missile. Behind each strike she has found "an arrogance of power … and a total absence of accountability." She told WhoWhatWhy that Yemenis are now living in a "black hole … where death surrounds us." The UN predicts nearly a quarter of a million Yemenis could die by the end of this year.

'We Kiss Our Loved Ones Goodbye'

Faisal bin Ali Jaber, an environmental engineer from southern Yemen, sued in both US and German courts on behalf of his family after a drone attack killed his brother-in-law Salem and nephew Waleed on August 29, 2012. The two were droned and killed during a week-long celebration of his son's wedding in his native village of Khashamir. Ever since, his family has lived in fear.

"Every day, we kiss our loved ones goodbye," he told the court, "not knowing if we will ever see them again. It is like living in a constant nightmare from which we cannot wake up."

What Faisal sought from the United States — in meetings with members of the National Security Council and Congress, in an unanswered letter to then-President Barack Obama, and in cases filed in three US courts — was an apology for the deaths of Salem and Waleed and an acknowledgement of their innocence.

"We can stop the extremists," he told Al-Jazeera. "But the question is — how can we stop the drones falling on our heads?"

In Germany, Faisal has pursued a legal strategy aimed at just that: to prevent the US Air Base from facilitating American drone strikes in his country.

"We are proactively seeking protection for his family," explained one of his lawyers, Andreas Schüller of the European Center for Constitutional and Human Rights.

At the moment of his death, Ahmed Salem bin Ali Jaber, a Muslim cleric, was standing under a palm tree near the village mosque where he had preached for the last time in his life. He was talking to three young men suspected of links to al-Qaeda. His nephew Waleed, a policeman, was there out of concern for his safety. Salem was known for his anti-al-Qaeda views, which he expressed in his last sermon. All five men died in the attack.

Faisal rushed to the mosque. "We expected he would be killed by al-Qaeda but, at the end, he died from an American strike," he told ABC News. "I stood on body parts of people. The smell was very strange. I don't know what was mixed with what — blood, mixed with the smell of ammunition. I think I lost consciousness…"

Was Salem hit because he was in the wrong place at the wrong time, in the company of the three "reputed members of al-Qaeda?" Was he the victim of a flawed algorithm? Because the United States refuses to investigate — it has never even confirmed or denied that a strike took place — it is impossible to know.

"They are not making the life and death decision based on facts," former drone operator Brandon Bryant told WhoWhatWhy. Bryant served in the Air Force for five years and took part in many drone strikes in Yemen. When he left, he was given a document certifying that his small squadron of drone operators had killed 1,626 "enemies" in action.

Bryant quit the Air Force before the attack on Khashamir. Based on his experience, he thinks the Jabers were killed in a "signature" strike, in which the identity of the target is unknown. While drone pilots typically engage in long-term surveillance of a target, a signature strike with hellfire missiles is based on suspicious behavior, including cell phone data, rather than actual human intelligence. "It's complete metadata. It's called patterns of life activity (POL)."

He said there might be a darker explanation for Salem and Waleed's deaths than drone pilots simply not knowing who they were incinerating. Unidentified males killed in a strike zone, he points out, are routinely classified as enemies killed in action. "It's not out of the realm of possibility that they just didn't give a fuck… in the manner of a video game."

Kill Chain Data

The court refused the plaintiffs' request to ban the use of German territory for the drone program. But the idea that a judge sitting in a courtroom in Münster, a university town in Northwestern Germany, could declare a halt to America's global drone war is based on a simple fact: the technology architecture of Ramstein Air Base enables the deployment of armed US drones in the Middle East and Africa.

Based on leaked US military documents, like a secret power point presentation tracing the arc of "kill chain" data from remote-controlled drones via satellite to Ramstein and then back to America by fiber optic cable, the court demanded the German government make sure the US respects international law at Ramstein. The information can be analyzed in real time by any US intelligence official sitting at a screen.

Bryant says he had Ramstein on speed dial while he was working in the Air Force. In an interview with German television and later in testimony before German parliament, he described Ramstein as the nerve center of America's global drone war.

"Ramstein is absolutely essential to the US drone program," he said. "All information and data go through Ramstein. Everything. For the whole world. Also for the CIA operations."

"Were it not for the help of Germany and Ramstein, men like my brother-in-law and nephew might still be alive today," Faisal told the court in Münster. "It is quite simple: without Germany, US drones would not fly."

It is hardly surprising that the presiding judge of the Higher Administrative Court in Münster, Wolf Sarnighausen, felt intimidated when asked to rule on the role of Ramstein. The Air Base is not only the headquarters for the US Air Force in Europe, it is also the site of NATO's Allied Air Command — potentially ground zero in the event of a World War III. US Air Forces Africa also operates out of Ramstein, reporting to the United States Africa Command (AFRICOM) that has been "temporarily" located in nearby Stuttgart since 2008.

Faced with a decision he called "massive and daunting," the judge acknowledged Ramstein's critical role in US targeted killings and severely questioned the American legal justification for them. He ordered the German government to hold the US accountable for the deaths of innocent bystanders — like Salem and Waleed — in drone strikes facilitated by Ramstein. Having issued a judgement without precedent, he noted that it is open to appeal. There might one day be a German Supreme Court case with the name of Faber on it.

The ruling is a rare victory in the efforts by international lawyers and human-rights groups to challenge the legality of US drone attacks. To date, US courts have refused to check the claim of a US president to have the last word in deciding who lives and who dies.

The verdict could lead to similar lawsuits in other European states where the US operates bases, particularly the UK and Italy — host of the US Naval Air Station Sigonella, another command and control center for drone warfare — and the Netherlands, which shares intelligence supporting drone warfare with the US.

Schüller is hoping that Germany and perhaps other nations "will take a stronger legal position against the US interpretation of international law." He cites the "huge danger" that other countries will follow the United States' example and claim the authority to kill people anywhere, anytime.

Already in 2010, the UN Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions expressed alarm over the "vaguely defined license to kill" characterized by the refusal "to disclose who has been killed, for what reason, and with what collateral consequences."

After reading the court's oral summary of its decision, Hina Shamsi, director of the American Civil Liberties Union National Security Project, told WhoWhatWhy it is "an assertion of the primacy of law. It is significant that the German court finds that this is not a political question but a legal question."

Shamsi and other ACLU lawyers have been filing lawsuits for nearly a decade to pierce the wall of secrecy surrounding targeted drone killings. Their biggest victory to date was to force the release, in 2016, of a redacted version of Obama's 2013 Presidential Policy Guidance — "the playbook" — for drone strikes in Yemen and other countries "outside the United States and areas of actual hostilities."

Like Schüller, Shamsi stressed the dangers of the legal chaos surrounding killer drones. "As the German court rightly pointed out … the United States' interpretations of its claimed authority to kill without judicial review or any kind of meaningful process is virtually without limits. That is a very, very dangerous thing, not only for potential drone strike targets but also with respect to our claim to be a country where the rule of law applies to and informs the very fundamental decision of who lives and who dies."

From 9/11 to Forever War

The German court's decision takes direct aim at the American legal justification for its targeted killing program: "the USA has on several occasions as part of its fight against terrorism claimed for itself a right to preemptive self-defense even in situations where there is no immediate danger."

It calls into question the American legal assertion that the drone attack on Faisal's village was an act of self-defense, justified under the Authorization for the Use of Military Force (AUMF) — the legal cornerstone for the "war on terror" passed by Congress in the immediate aftermath of the attacks of September 11, 2001.

US unmanned drones have circled in the skies over Yemen, one of the world's poorest countries, since 2002, targeting members of al-Qaeda in the Arabian Peninsula (AQAP). The drone strikes are planned and carried out by both the CIA and the Defense Department through the super-secret US Joint Special Operations Command (JSOC).

AQAP claimed responsibility for killing 12 people in the Paris offices of Charlie Hebdomagazine in 2015 and for the "Underwear Bomber," Nigerian Umar Abdul Mutallab, who tried to detonate plastic explosives hidden in his underwear on a Christmas-Day flight from Amsterdam to Detroit in 2009.

The AUMF allows US forces to target al-Qaeda and its allies around the world if there is an "imminent threat of violent attack" on the United States and the lives of its people — and if "capture isn't feasible."

Faisal told both the US and German courts there was "no indication that the three young visitors in Khashamir posed any threat of death, much less an imminent one, to the United States or its allies." Nor was there any "moral or legal rationale that justifies US drone operators waiting to strike until after Salem and Waleed joined the three visitors."

Even if the US had conducted an investigation and found no evidence the three unidentified young men were an 'imminent threat," the attack would still be justified under the current interpretation of AUMF. A targeted drone killing, according to a 2013 Obama Administration memo, doesn't require actual evidence to be legal: "the condition that an operational leader present an 'imminent' threat of violent attack against the United States does not require the United States to have clear evidence that a specific attack on US persons will take place in the immediate future."

Writing in The Hill, Faisal asked why the US-supported Yemen armed forces didn't just arrest the men — an army base is only two miles away.

We Yemenis understand the need for counter-terrorism; it is as important to us as it is to Americans. What we cannot understand is why the US had to assassinate two innocents and terrorize a whole village to deal with the three suspects. No matter what these men had supposedly done, surely they deserved a trial?

The AUMF also opened the legal door to killing Americans with a drone. In 2011, Obama ordered the secret assassination of an American citizen in Yemen — Anwar al-Awlaki — who was associated with al-Qaeda in the Arabian Peninsula. There were no official charges, judge, or due process. Obama, the one-time constitutional scholar, reportedly called it an "easy decision."

Targeting an American was the final straw for Bryant, who engaged in the hunt but left before the kill. He wanted to continue serving his country in the air force but not as a drone pilot. He was given no choice.

"That was when I decided I had to get out," he recalled. "I realized that by doing what I was doing I was going against the American Constitution which I had sworn to protect."

Two weeks after Al-Awlaki's death, another drone killed his American-born son, 16-year old Abdulrahman. The teenager had no known links to terrorism. The only official explanation for his death — "he should have had a more responsible father" — came from former White House press secretary Robert Gibbs. A "highly successful" first military raid authorized by newly inaugurated President Donald Trump killed his eight-year-old daughter, also American born.

Campaigning for the presidency, Trump dissed the "very politically correct war" against terrorists, promising to take out their families. Near the end of his second term, President Obama approved a formula for counting civilian deaths that produced implausibly low numbers. The Trump administration prefers no numbers at all. In March, Trump revokedObama's executive order requiring US intelligence officials to issue an annual public report on combatant and civilian casualties in US drone and other air strikes.

Trump is now the third US president to aggressively expand the war-making powers of his office under AUMF, adding to the long list of Islamist militant groups targeted across the Muslim world, mostly with armed drones. Even Trump loyalist Lindsey Graham (R-SC), who sits on the Senate Armed Services Committee, complained about its scope and secrecy: "This is an endless war without boundaries, no limitation on time and geography. You got to tell us more."

Congress did finally act to impose some limits. In the wake of the murder and dismemberment of Saudi journalist Jamal Khashoggi, a bipartisan majority in the House and Senate voted to end US support for Saudi Arabia's war in Yemen — but failed to override Trump's veto.

However, the "historic" bipartisan resolution to reclaim Congressional war powers specifically authorized the continued use of drone strikes under the 2001 Authorization for Use of Military Force, setting the stage for more secret drone wars.

'Yemeni Lives Are Cheap'

In the summer of 2013, Faisal sent a letter to Obama and Yemen's President Hadi, saying his family deserved an apology. The lesson of Salem's death, he wrote, is that "neither the current US or Yemeni administrations bother to distinguish between friend and foe." He ended the letter with a warning:

With respect, you cannot continue to behave as if innocent deaths like those in my family are irrelevant. If the Yemeni and American Presidents refuse to engage with overwhelming popular sentiment in Yemen, you will defeat your own counter-terrorism aims.

His letter was never answered. In late 2013, Faisal traveled 7,000 miles to Washington, DC, to meet with members of Congress and national security officials from the White House. Astory about his visit made the front page of the New York Times. But no one would answer his question as to why members of his family were killed. There were no indications that the Obama administration would ever acknowledge it had made a mistake.

The following year, a Yemeni intelligence official handed a member of the Jaber family aplastic bag full of cash — $100,000 in sequentially numbered US dollar bills. The money, he said, came from the US. But he refused to put that in writing.

The family hesitated to accept it in the absence of any public explanation or apology for what had happened. Eventually, it was put in escrow to support the families of the deceased — Salem's wife and seven children, and Waleed's wife and 2-year-old son. "The U.S. believes it can silence the families of the victims with money," Faisal told Yahoo News.

In April of 2015, for the first and only time, Obama offered his "deepest apologies" to the families of two innocent people killed by mistake in a US drone strike — but they were not Salem and Waleed. The two men, American Warren Weinstein and Italian Giovanni Lo Porto, both aid workers, were western hostages held in a compound hit by a US missile. As in the majority of drone strikes in Pakistan, the missile that killed them did not target known individuals. Just a building. The president's speech drew attention to the fact that US drone strikes in Pakistan, a country the US is not at war with, mostly hit homes and schools.

Why did Obama apologize for these civilian deaths and not others? "Imagine that your loved one was wrongly killed by the US government, and the White House would not apologize," wrote Faisal in a CNN op-ed. "This seems to be the Obama administration's cold calculation: Yemeni lives are cheap. They cost the President no political or moral capital."

In June 2015, Faisal filed a "wrongful death" lawsuit against against Obama, former Secretary of Defense Leon Panetta, and former CIA Director David Petraeus. All he asked for was an apology — and a declaration that members of his family had been killed in an unlawful attack.

"He sought the same apology that was given in April of 2015, two months before we filed the litigation — to the families of two western hostages. Our point was if you are going to apologize to these two, why not the rest?" asked Jennifer Gibson.

Faisal would become the first drone victim to be granted a court hearing in the United States, appearing in DC federal court on December 13, 2016. By then, Bryant, along with two other former US Air Force service members who had worked in the drone program ― Lisa Ling and Cian Westmoreland ― had joined the lawsuit.

Based on their collective experience, the three wrote in their brief that they "believe the public has been misinformed about the effectiveness of drone strikes and the way they are conducted."

They described the drone program as an "internal culture [that] favored classifying individuals as combatants rather than 'non-combatants' and deaths as 'enemy kills' rather than civilian casualties."

The brief recounted Bryant's experience when he "saw a child run into a missile shot. The military's post-action report classified the child as a dog."

The Air Force veterans' brief raises the question: Did the US, after killing Salem Bin Ali Jaber — a religious leader who risked his life to speak out against al-Qaeda — classify him as a dead terrorist? Would he still be numbered among the enemy kills if it not been for Faisal's protests, letters, op-eds, multiple trips to Washington and Berlin, and lawsuits on both sides of the Atlantic?

In his final sermon — "Killing Outside of the Law" — Salem declared al-Qaeda could never justify attacks on civilians. "No religion, no constitution can ever accept this."

But the US Appeals court did "accept" Salem's extrajudicial killing, refusing to even examine the facts in a decision issued in the summer of 2017. By the end of the year the Supreme Court said it wouldn't hear their case either, burying Faisal's family, as a matter of US law, once and for all.

In their unanimous decision, the appellate court judges said they could not rule on Salem and Waleed's fate or, presumably, the death of any other man, woman, or child killed in a US drone attack — because the executive branch owns drone warfare,  i.e., it is "political." That means the Jaber family has no "standing" in a US court: no legal right to "second guess" a US president's decision to kill them.

Only Congress, it concluded, could hold an American president accountable for assassinating someone in secret from the air in a foreign country.

"Our democracy is broken," wrote Judge Janice Rogers Brown, in a frustrated separate opinion. The Bush-appointed judge still concurred with her colleagues, but called on the president and Congress to come up with a "clear policy for drone strikes and precise avenues for accountability," while acknowledging that "congressional oversight is a joke — and a bad one at that."

She admitted that the decision "begs the question: if judges will not check this outsized power, then who will?"

By Brent Gregston

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