In the last few years there has been a hotly contested global debate about the civilian impact of the U.S. drone strike program and its moral and legal justifications. Despite being geographically part of Asia (where the majority of drone strikes took place) and politically aligned with the west (states responsible for the strikes), until now the global debate went largely unnoticed in Australia.

The death of two Australians has led to a new reality Down Under – there is now an increasing public debate about whether the U.S-Australian intelligence sharing alliance has fairly been used as cover for Australia’s secret involvement in the controversial U.S. targeted killing program. The debate has raised concerns that Australia’s democratic institutions and rule of law could be collateral damage in the US drone program.

In April 2014, the human suffering caused by the U.S. drone program was brought home to many Australians for the first time, with reports that the U.S. had killed two Australians in a drone strike in Yemen.  In November 2013, Australians Chris Havard and Muslim bin John were killed in a US Predator drone attack on a convoy in Hadramout Province, Yemen.  Their deaths were reported in Australia five months later.

The news of the Australian deaths was reported amid increasing concern that Pine Gap, a joint Australian-American facility located in the desert of Australia’s Northern Territory, is used to locate the targets of U.S. drone strikes. Pine Gap controls U.S. spy satellites that intercept communications across key parts of the globe including Pakistan and the Middle East.

Australia and the United States, along with the other countries in the Five Eyes alliance, have long benefited from sharing intelligence.  Unsurprisingly, Australia sees its close relationship with the United States as essential to Australia’s prosperity and security and vital to meeting global and regional security challenges.

But the deaths of two Australian citizens in a US drone attack have publicly highlighted the perils and limitations of that friendship.

Diminishing support for the Joint Defence Facility Pine Gap

Established in 1970 as an intelligence gathering base, Pine Gap has long been shrouded in secrecy. The facility is staffed by Australian and American officials, and Australia claims “full knowledge and concurrence” of all activities at the facility.

Malcolm Fraser was Australia’s conservative Prime Minister not long after Pine Gap was established and he believes that the fundamental nature of the joint facility has changed over time. “Initially Pine Gap was collecting information – it was, if you like, listening in.  It’s now targeting weapons systems. It’s also very much involved in the targeting of drones.”

Fraser’s view is supported by reports in the Australian press, based on information from former Pine Gap personnel, that Pine Gap has had outstanding success locating and tracking al-Qa’ida and Taliban leaders.

During his recent visit to Australia, American investigative journalist Jeremy Scahill said that Australia, Canada and New Zealand provide critical information to the US “that can be used to track and kill individuals around the world.” According to Scahill, who has access to top secret documents including the full cache of documents released by Edward Snowden, the Australian government is fully aware of the extent of the US targeted killings program.

In response to these allegations, long-standing defenders of the strategic importance of the Pine Gap facility have now publicly revoked their support, calling its use in the US drone program “ethically unacceptable.”

With no transparency around Australian involvement, the Australian government cannot claim a popular mandate to engage in the covert U.S. drone war.  In any event, popular support seems unlikely with a recent Australian poll showing that 58% of Australian voters are concerned about Australians dying in drone strikes, only 35% approve of U.S. drone strikes and 45% disapprove of U.S. use of armed drones.

Legal implications for Australian personnel

Concerns about civilian deaths caused by drone strikes are well documented, as is the possibility that U.S. drone strikes may involve violations of international humanitarian law and international human rights law.

Australian personnel working at Pine Gap may not fire the drones’ weapons, but if it is true that they locate targets, then they could be complicit in any unlawful deaths of civilians in those drone strikes.

Australian military and intelligence personnel involved in the U.S. drone targeting operations may not have the same legal cover as their U.S. counterparts. Unlike the United States, Australia has signed the Rome Statute and Australians are therefore more easily brought before the International Criminal Court.

One has to wonder whether the Australian government has turned its mind to the legal implications for Australian personnel, as their role at the Pine Gap facility has morphed from intelligence sharing to participation in a U.S-led targeted killing program.

Excessive state secrecy

The U.S. government has acknowledged its role in covert drone strikes and to some extent has sought to justify the legality and necessity of those operations, albeit after sustained pressure from civil society and intervention from the courts. Australians, on the other hand, have been given no official information about their government’s involvement in the targeted killing program.

Whilst some secrecy around Pine Gap’s operations may be justified given the important role it has played in Australia’s national security, there is a clear public interest in greater scrutiny and transparency of the facility if it is being used as part of an undisclosed lethal targeting program.

There are currently so many unknowns about Australia’s role that the Human Rights Law Centre wrote to the Australian government seeking answers to some basic questions.  Does the Australian Government consider itself legally at war with any State or organized arm group? Is Australia involved in any way in US drone strikes conducted outside of Afghanistan, and if so what is the legal basis for that involvement? The response received from the Australian government did not include answers to these simple questions.

The Human Rights Law Centre has also asked the UN Special Rapporteur on Counter-Terrorism to investigate the deaths of two Australians.

Quite reasonably, the family of Chris Havard want greater information about how their son was killed. Again, very little information has been provided.

Australia’s Department of Foreign Affairs and Trade stated that the two men were killed during counter-terrorism operations and has otherwise refused to discuss the details of the deaths. The US embassy refused to comment on the incident but nonetheless asserted the lawfulness of any work done to mitigate threats the US faces.

There is an undeniable value in, and need for, military and intelligence cooperation between Australia and the United States.  There is also a legitimate rationale for the secrecy of some of that work. But it’s one thing to share military intelligence in the name of national security and another thing entirely to facilitate the unlawful killings of civilians.

The Australian government has no mandate to engage in this war that has now claimed Australian casualties. And the Australian people have a right to know what is done in their name.