President Obama is scheduled to give a speech tomorrow at the National Defense University on national security and counterterrorism policy. Many are eagerly awaiting an unprecedented moment of candor, expecting the president at least to clarify certain ‘ambiguities’ (read: utter lack of transparency) on the legal and moral approach to his war on terror.
While the president may mention the drone war, I predict he will fail to address the most hard-hitting questions about its (il)legality.
There is a reason the Obama administration has kept the drone war secret, and it’s not about protecting sources and methods. The real reason is to shield the White House from accountability for crimes committed.
This is articulated rather well by U.S. District Judge Colleen McMahon in deciding on a lawsuit brought against the Obama administration by The New York Times for not disclosing more information about the drone war.
“I can find no way around the thicket of laws and precedents that effectively allow the executive branch of our government to proclaim as perfectly lawful certain actions that seem on their face incompatible with our Constitution and laws while keeping the reasons for their conclusion a secret,” McMahon said.
In Senate testimony last month, Rosa Brooks, Professor of Law at Georgetown University Law Center, reiterated a similar criticism, arguing that “When a government claims for itself the unreviewable power to kill anyone, anywhere on earth, at any time, based on secret criteria and secret information discussed in a secret process by largely unnamed individuals, it undermines the rule of law.”
More specifically, the most glaring breach of law the Obama administration has committed in its drone war is to unilaterally redefine the legal standards that justify the use of force. The Justice Department’s leaked memo on targeted killings showed that Obama has altered the meaning of the word “imminence” – a prerequisite for the use of force by a state.
The memo refers to what it calls a “broader concept of imminence” than what has traditionally been required, insisting actual intelligence of an ongoing or imminent plot against the U.S. is simply not a standard the administration chooses to impose on itself (as if it were up to their discretion).
“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 U.S. persons and interests will take place in the immediate future,” the memo states, contradicting conventional international law.
There are other aspects of the drone war that clash with international law. A new report out this week by the International Crisis Group calls on the Obama administration to “Demonstrate respect for the international humanitarian law principles,” by “halting reported signature strikes that target groups of men based on behavior patterns that may be associated with terrorist activity rather than known identities; and ending the reported practice of counting all military-aged men in a strike zone as combatants unless sufficient evidence proves them innocent posthumously.”
And finally, the foundation upon which the drone war rests is the 2001 Authorization for the Use of Military Force (AUMF), which empowered the president “to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001.”
But the administration’s case for the drone war is that it targets “al-Qaeda and its associated forces.” In other words, any individual or group that a couple of high-level officials secretly determine fits that expansive description, including U.S. citizens and Islamist groups that did not even exist at the time of the 9/11 attacks.
In Senate hearings last week, top Pentagon lawyer Robert Taylor kept using the words “associated forces” to justify the legality of the drone war under the 2001 AUMF. Until Senator Angus King of Maine told him those words never appear in the text of the AUMF.
“You guys have invented this term, associated forces, that’s nowhere in this document,” King said. “It’s the justification for everything, and it renders the war powers of Congress null and void.”
On all of the above points, the administration has barely a legal leg to stand on. To expect Obama to substantively address them is to expect him to highlight his own criminality.
The historic conviction of former Guatemalan dictator Efrain Rios Montt of genocide and crimes against humanity was annulled late last night by the country’s high court.
The three-to-two ruling by a panel of constitutional judges annuls everything that has happened in the trial since 19 April, when Gen Rios Montt was briefly left without a defence lawyer.
The defence team had walked out of the court on the previous day in protest at what they called “illegal proceedings”.
…According to the constitutional court ruling, the guilty verdict and the 80-year sentence handed down by Judge Jazmin Barrios on 10 May are therefore now void.
Human rights group Amnesty International said it was a “devastating blow for the victims of the serious human rights violations committed during the conflict”.
Montt’s lawyers had walked out in protest, called for the dismissal of the judges, tried to delay the proceedings, etc. It seems like their tactics to stall were effective, if belatedly.
See more on the trial and conviction here.
Update: Prior to this news, The New York Times hosted a debate on just how culpable the Reagan administration was in the war crimes in Guatemala. Here’s Greg Grandin’s take:
…even before [Reagan's] 1980 election, two retired generals, who played prominent roles in Reagan’s campaign, reportedly traveled to Central America and told Guatemalan officials that “Mr. Reagan recognizes that a good deal of dirty work has to be done.”
Once in office, Reagan, continued to supply munitions and training to the Guatemalan army, despite a ban on military aid imposed by the Carter administration (existing contracts were exempt from the ban). And economic aid continued to flow, increasing to $104 million in 1986, from $11 million in 1980, nearly all of it going to the rural western highlands, where the Mayan victims of the genocide lived.
This aid helped the Guatemalan military implement a key part of its counterinsurgency campaign: following the massacres, soldiers herded survivors into “model villages,” detention camps really, where they used food and other material supplied by the U.S. Agency for International Development to establish control.
And Reagan was consistent in his moral backing for Guatemala’s genocidaires. On Dec. 5, 1982, for instance, he met with Rios Montt in Honduras and said he was “a man of great integrity” and “totally dedicated to democracy.”
Just 10 days before this meeting, one declassified U.S. document reveals that the State Department had been informed of a “well-founded allegation of a large-scale killing of Indian men, women and children in a remote area by the Guatemalan army.”
Other declassified documents reveal that the White House was less concerned with the massacres than with their effectiveness, or with countering the bad publicitystemming from reports of the atrocities.
The day after Reagan’s endorsement, Guatemalan soldiers arrived at a village called Dos Erres and started killing. The slaughter went on for three days and by the time it was over at least 162 people, including many children, were dead.
From Frank Brodhead’s Iran War Weekly:
After almost a year of no progress in negotiations between “the West” and Iran about Iran’s nuclear program, last week’s meetings in Istanbul confirmed that there would be, indeed, no progress until at least after Iran’s presidential election, which will take place on June 14th. Whatever the outcome of the election, it is likely that the post-election resumption of talks (if any) will take place in an international landscape greatly altered by the fighting in Syria.
First, Iran’s election. As detailed in some good/useful readings linked below, there are a great many “unknowns” and “too soon to tells” regarding the election, including who will be allowed to run and how the several “camps” will (or will not) consolidate around a single candidate. The last-minute entry of former president Rafsanjani into the race has raised a storm of questions in the Iran-expert blogosphere about the stance and political strength (or weakness) of Supreme Leader Khamenei. And the entry of current president Ahmadinejad’s protégé now raises questions about whether he will survive Tuesday’s “cut” by the Guardian Council, and if so, what then, and if not, what will Ahmadinejad do? A dominant motif of analysts is the likelihood of “surprise.”
The short-term fate of Syria may be determined this week by a slew of meetings that will address the US-Russian proposal for an international peace conference, now dubbed “Geneva II.” A useful guide to this week’s meetings (Kerry in Jordan, the EU on resuming arms to the rebels, the Syrian National Council, etc.) can be read here.
This may ultimately come as no surprise, but yet another party connected to the torture and abuse of detainees at Abu Ghraib circa 2004 may get off with little more than a slight taint on their reputation.
At this point it is part of the record in at least two official investigations including the Taguba Report and the commonly known “Fay Report,” that that the Arlington, Va.-based private contractor CACI had fielded interrogators who helped to intimidate, harass and physically assault prisoners at Abu Ghraib. That much was detailed in the official military investigations, no matter what CACI says, and everyone can access them easily enough.
But like most of the high-hats involved in the evil culture and brutal behavior we will forever associate with Abu Ghraib, CACI was never held accountable for its part (there were never any formal criminal charges brought against them). A small group of four former detainees who say CACI employees “directly” participated in their torture are trying to sue the company in civil court, but even that effort seems increasingly stacked against them. The case has already been dismissed once and is in appeals.
According to The Washington Post this morning, U.S District Judge Gerald Bruce Lee “is weighing whether a Supreme Court ruling in April (Kiobel v. Royal Dutch Shell),” and the failure of three plaintiffs to appear in court in the United States “should bring an end to the case.” The decision in Kiobel basically held that the Alien Tort Statute, on which much of the CACI case is being argued, only applies to conduct taking place in the U.S or on the high seas.
CACI says the Kiobel ruling means the Iraqis’ case no longer has jurisdiction in the the U.S court. The plaintiffs’ attorney, Baher Azmy, who works for the Center for Constitutional Rights, says the Abu Ghraib detention center under U.S command constituted a “U.S territory,” and furthermore, argues that unlike Kiobel, this case deals directly with “an American entity” and cannot be compared.
Even more outrageous is the idea that the case might be shut down if three of the Iraqis cannot make it to court in Virginia in person. Apparently, they’ve been trying to get here, but — surprise — some sort of bureaucratic snafu is preventing them from leaving Iraq. From The Washington Post, which was covering the court proceedings, in April:
Despite having visas and airline tickets, they were not permitted to travel to the United States last month, according to the same court document.
“There is some inexplicable block by some agency in the U.S. government that’s preventing them from coming here,” said Baher Azmy, an attorney for the detainees and legal director of the Center for Constitutional Rights. “We’re trying to expedite the process.”
But May is winding down and they still can’t come over and there seems to be no relenting from the court in its insistence that the plaintiffs cannot participate in the proceedings via video. CACI actually has the nerve to say the plaintiffs’ inability to get here is “self-inflicted” because they have “detention records” with “ample evidence of derogatory information that would disqualify them from entering the United States.”
Since we have “ample evidence” that 70 to 90 percent of the detainees at the worst U.S operated detention centers including Abu Ghraib were arrested by mistake, it is hard to take CACI’s argument seriously. In fact it’s just another slap (punch?) in the former detainees’ faces. Best remember where they came from before raising up their “detention records” against them:
In January, Engility Holdings, on behalf of its subsidiary L3 — a U.S contracting company that provided translators to the U.S military in Iraq at its detention centers — paid over $5.2 million in settlement money to 71 former detainees who accused them of conspiring to abuse and torture them at Abu Ghraib and other U.S detention centers. CACI however is holding out, and sadly from the looks of it, it may pay off.
The New York Times’ Disunion series has an excellent essay on Nathaniel Hawthorne by Cynthia Wachtell, author of “War No More: The Antiwar Impulse in American Literature, 1861-1914.” In 1863, Hawthorne wrote to an English friend: “The war-party here do not look upon me as a reliably loyal man, and, in fact, I have been publicly accused of treasonable sympathies.”
The article notes: “In Concord, where Hawthorne moved in 1860 after spending seven years abroad, he found himself out of step with his old friends Ralph Waldo Emerson and Henry David Thoreau (who died in May 1862), as well as others of his neighbors.” There was perhaps more enthusiasm for going to war in Massachusetts than in any other northern state. While Ralph Waldo Emerson initially supported the war, he made sure that his son was not conscripted into the Union meat-grinder. Hawthorne, in an essay he wrote after spending time in Washington, DC, and Virginia, scoffed at the glorification of the conflict. Wachtell notes: “Hawthorne tramples on the era’s well-respected literary conventions and proprieties: he does not adopt a strident tone of Union partisanship. He does not offer mournful lines about the deaths of brave and beautiful soldiers. He does not deliver the sort of rousing or circumspect reporting that routinely filled Northern newspapers and magazines.”
“Hawthorne refused to adhere to the restrained and respectful norms of wartime writing, and he expressed none of the standard wartime pieties. Instead, he used black humor to devastating effect. Describing battlefield deaths, he wrote, ‘A bullet offers such a brief and easy way, such a pretty little orifice, through which the weary spirit might seize the opportunity to be exhaled!’
“Where others saw a noble war to end slavery and preserve the Union, Hawthorne saw a questionable conflict that claimed the lives of young men, empowered inept generals, and seemed unlikely to end with a subdued South…”
Hawthorne suffered “the opprobrium of his neighbors. Acquaintances shunned him, while old friends could only shake their heads… No topic is beyond the reach of his wit: not generals, not the war dead, not even the Northern martyr and darling of the transcendentalists of Concord, John Brown.”
I have been a huge fan of Thoreau and Emerson since I was 18. But seeing how they embraced war as a means of moral/national uplift — sad to see those philosophers go wrong. Emerson was skeptical of government – except when folks proposed that it launch a bloody crusade.
UPDATE: A more accurate title for this post would have been “Nathaniel Hawthorne, Civil War Scoffer.” But it is too late to change it now without throwing off any & all links.