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WSJ report says Pakistan’s continued clearance of airspace is considered ‘tacit consent’ by US
- Thursday, September 27, 2012 - From Print Edition


ISLAMABAD: About once a month, the Central Intelligence Agency (CIA) sends a fax to a general at Pakistan’s intelligence service outlining broad areas where the United States intends to conduct strikes with drone aircraft and Pakistanis, who in public oppose the strikes, don’t respond, US officials have said.


“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,” the Wall Street Journal (WSJ) quoted officials familiar with the programme.


According to the report titled ‘US unease over drone strikes,’ representatives of the White House’s National Security Council and CIA declined to discuss Pakistani consent, saying such information was classified.


According to the WSJ, senior US officials worry about maintaining the support of an important ally – the UK – where officials have begun to express concerns privately about the extent of Pakistan’s consent.


In the early days of the Afghan war, lists of specific individuals to be targeted on Pakistani soil by US drones were approved by both the US and Pakistan, in what was called a “dual-key” system. Starting about four years ago, the US began increasingly to go it alone.


By last year, according to US officials, the system in place was that the CIA would send a regular monthly fax to Pakistan’s Inter-Services Intelligence agency. The fax would outline the boundaries of the airspace the drones would use — large areas along the Pakistan-Afghanistan border referred to as flight “boxes” because they are shaped like three-dimensional rectangles in the sky. There was no mention of specific targets, the report said.


The ISI would send back a fax acknowledging receipt. The return messages stopped short of endorsing drone strikes. But in US eyes the fax response combined with the continued clearing of airspace to avoid midair collisions – a process known as “de-confliction” – represented Pakistan’s tacit consent to the programme.


After the May 2011 bin Laden raid, which the US did without Pakistani permission or knowledge, the ISI stopped acknowledging receipt of US drone notifications, according to US and Pakistani officials. Replies were stopped on the order of the ISI chief at that time, said an official briefed on the matter. “Not responding was their way of saying ‘we’re upset with you,’” this official said.


The official said the ISI chief chose that option knowing an outright denial of drone permission would spark a confrontation, and also believing that withdrawing consent wouldn’t end the strikes, the WSJ reported.


In public speeches, Obama administration officials have portrayed the US use of drones to kill wanted militants around the world as being on firm legal ground. In these 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 US administration, interpreting Pakistan’s acquiescence as a green light, has set off alarms among some administration legal officials. In particular, lawyers at the 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.


The effort is designed to fend off legal challenges at home as well as to ease allies’ concerns about increasing legal scrutiny from civil-liberties groups and others. The White House also is worried about setting precedents for other countries, including Russia or China, that might conduct targeted killings as such weapons proliferate in the future, officials say.


Because there is little precedent for the classified US drone program, international law doesn’t speak directly to how it might operate. That makes the question of securing consent all the more critical, legal specialists say.


In public, Pakistan has repeatedly expressed opposition to the drone programme, 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,” 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 State Department assistant legal adviser under Mr 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 program, which is deeply unpopular among Pakistanis,” the WSJ reported.


On the international stage, matters are less clear-cut. The unwilling-or-unable doctrine, which was first publicly stated by the George W Bush administration and has been affirmed by the Obama administration, remains open to challenge abroad, legal experts say. Conducting drone strikes in a country against its will could be seen as an act of war, the report said.


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.


Administration lawyers, including those with qualms such as Koh, believe the CIA’s campaign is legal. They believe they have consent, however tacit, primarily because the Pakistani military continues to clear airspace for drones and doesn’t interfere physically with the unpiloted aircraft in flight, according to officials involved with the administration’s legal thinking.


Still, for some US officials, including Koh, the lack of an ISI response to faxes was unnerving, leaving already vague communications even more open to interpretation.


Spurred by concerns about the future of the drone programme in Pakistan, administration lawyers have been considering the feasibility of making changes. One idea calls for putting some of the drones under control of the US military, which would allow officials to talk more openly about how the programme works and open the door to closer cooperation with the Pakistanis, according to US and Pakistani officials.


The US has also considered a coordinated campaign that could involve both US drones and Pakistani F-16 fighter planes, these officials said.


In meetings in Washington last month with the new chief of Pakistan’s ISI, Lt Gen Zahirul Islam, American officials raised the prospect of a “drone drawdown,” according to Pakistani officials. American officials said the idea of ramping down the programme gradually as security conditions permit has been hotly debated for months. Pakistani officials considered the proposal to be “amorphous” and “without detail,” an adviser to Pakistan’s government said.


Americans also raised the prospect of creating “joint ownership” of the drone program, the Pakistani adviser said, but no changes were agreed to.