The Obama Administration delayed and ultimately changed the language in its revision of the military commissions manual because Bush-era language left open the interpretation that CIA drone operators would be considered war criminals, according to the New York Times.
The nugget was buried in a Friday article that hasn’t gotten much attention. But it’s notable as a sign of how sensitive the administration is about the legality of the CIA drone program in Pakistan.
The lengthy military commission manual was being redrafted ahead of trials of detainees at Guantanamo. The Times reports:
The Pentagon delayed issuing a 281-page manual laying out commission rules until the eve of the hearing. The reason, officials say, is that government lawyers had been scrambling to rewrite a section about murder because it has implications for the C.I.A. drone program.
An earlier version of the manual, issued in 2007 by the Bush administration, defined the charge of “murder in violation of the laws of war” as a killing by someone who did not meet “the requirements for lawful combatancy” — like being part of a regular army or otherwise wearing a uniform. Similar language was incorporated into a draft of the new manual.
But as the Khadr hearing approached, Harold Koh, the State Department legal adviser, pointed out that such a definition could be construed as a concession by the United States that C.I.A. drone operators were war criminals. Jeh Johnson, the Defense Department general counsel, and his staff ultimately agreed with that concern. They redrafted the manual so that murder by an unprivileged combatant would instead be treated like espionage — an offense under domestic law not considered a war crime.
The whole piece is worth a read.