Month: September 2012

The Obama administration has superseded both domestic and international law in its targeted killing program in Pakistan, Yemen, and Somalia. A legal memo from the Congressional Research Service has concluded that “none of the established legal frameworks is a perfect fit for the Administration’s lethal targeting operations because the current US practice of lethal targeting involves features that are improvised, inconsistent or otherwise questionable,” according to Secrecy News.

While the laws of war have traditionally been relegated to certain geographic areas of declared conflict, the Obama administration has expanded Congress’s authorization of the use of force, initially granted for Afghanistan, to apply to a borderless conflict that is defined however the President wants. The administration has also extended the authorization for the use of force against those who carried out the attacks of September 11th to apply to anyone the President says is a member of al-Qaeda, anywhere in the world, without any checks or balances or legal process to prove such membership. The administration has also extended this reasoning to US citizens, who have undeniable rights to due process under the Constitution, and while they seem to have written a legal memo from the Office of Legal Counsel, they have refused to release it.

In order to violate established law with a new supplanted version of it, the Obama administration has done what many ruling parties have done in the past to retroactively legalize their crimes: alter the English language. Secrecy News explains:

For example, CRS says the Administration appears to have redefined the meaning of “imminence,” one of the required elements for justifying the use of force in self-defense on the territory of another country.  The standard definition of imminence refers to an overwhelming threat that allows “no moment for deliberation.”  But the Administration uses imminence idiosyncratically “to refer to the window of opportunity for striking rather than the perceived immediacy of the threat of an armed attack.”  This novel usage “may pose some challenge to the international law regarding the use of force,” CRS said.

Yes, the administration’s notion of imminence is certainly “novel,” especially when an entire plank of their drone war includes spying on groups of people for days, sometimes weeks at a time, in order to distinguish a so-called “pattern of behavior,” which by their reasoning is enough to establish membership of al-Qaeda. Whatever this is, it has nothing to do with “imminent” threats, traditionally defined.

This legal memo from CRS, which is supposed to be secret and available only to members of Congress, concludes that the Obama administration’s actions cannot be reconciled with customary laws of war and appears to supersede the supreme law of the land, the Constitution and the Bill of Rights. But the memo points to two other legal constraints being either ignored or unilaterally overruled.

First, the US laws which prohibit assassinations by government officials. “The US prohibition on assassinations conducted by US officials or persons employed by the United States is set forth most prominently in an executive order originally issued in 1981 by President Ronald Reagan,” CRS writes. “Executive Order 12333 on ‘United States Intelligence Activities,’ provides that ‘[n]o person employed by or acting on behalf of the United States Government shall engage in, or conspire to engage in, assassination.'” To get around this prohibition, advocates of the targeted killing program claim we’re at war, and therefore these aren’t assassinations. But that can only be true if it can be legally accepted that this war is limitless in space and time.

This view of the lawfulness of targeted killing during peace or war is not universally held, which has led to characterizations of U.S. attacks in Yemen and other places as acts of “extrajudicial killing” in violation of international law. After the United States conducted a drone strike in Yemen in 2002 against suspected Al Qaeda militants alleged to have been involved in the 2000 strike against the USS Cole, the special rapporteur on extrajudicial, summary, or arbitrary executions of the United Nations Commission on Human Rights issued a report calling the strike “a clear case of extrajudicial killing.”

And lastly, the Obama administration appears to be violating the decision of the Supreme Court in Hamdi v. Rumsfeld, which said due process must be “accorded to a US citizen deprived of liberty in connection with hostilities, where such deprivation involved detention without trial until the end of hostilities, at a minimum, the right to ‘receive notice of the factual basis for his classification, and a fair opportunity to rebut the Government’s factual assertions before a neutral decisionmaker.'” Obviously this didn’t happen with the three US citizens the President killed last year in Yemen via drone strike, despite the fact that Awlaki’s father tried to file suit in response to his son’s inclusion on a presidential kill list. “This embrace of unchecked executive authority may prove difficult to reconcile with the majority holding in Hamdi,” writes Secrecy News.

And perhaps most importantly, “By withholding its own Office of Legal Counsel opinion on the legality of lethal targeting of suspected terrorists who are US citizens,” Secrecy News warns, “the Obama Administration seems intent not on protecting sensitive operational details but on suppressing public awareness and debate.”

It was reported late last week that President of the Palestinian Authority Mahmoud Abbas plans to head off another PLO bid to upgrade Palestine’s status at the United Nations to “a state under occupation.” The PLO’s last attempt at being recognized as a state at the UN ended with the US vetoing it at the Security Council, of course. A lesser achievement did get pushed through though when Palestine was accepted as a full member of the United Nations Educational, Scientific and Cultural Organization (UNESCO), and in response to this the US cut off funding for the group, costing it a fifth of its budget.

At the Council on Foreign Relations, former Reagan and Bush minion (and criminal) Elliot Abrams doesn’t much appreciate Palestine’s bid for statehood at the UN. And he revels in America’s bullying tactics at the UN:

Is this a smart move for the Palestinians? Perhaps not. Elevation to “state” status may allow them to join other UN organizations, but when they joined UNESCO the United States defunded that organization—costing it the 22 percent of its budget we pay. Will other UN agencies be happy to pay the same price to elevate the PLO’s status? Will the Palestinians win friends in the UN system by forcing that issue?

You damn Palestinians don’t understand that we’ll make you enemies of everyone at the UN. Our browbeating of every UN agency that accepts your statehood bid will cause them to resent you. You don’t want this, do you?

Honestly, the diplomatic conduct of people like Abrams is no more sophisticated than the fat kid throwing his weight around on the playground and intimidating the little ones to get his way.

More than that, though, I’m struck at how open Abrams is about the real reason the US and Israel will stop at nothing to prevent Palestinian statehood recognition.

Being called a “state” by the General Assembly may also permit the PLO, or Palestine, to bring cases in the International Criminal Court (ICC). Only states can do that, and the ICC has previously refused cases from the PLO. The Palestinians have a far stronger case to be considered a “state” for ICC purposes if the General Assembly gives them that status. But then what? Will they bring case after case against Israeli generals and other officials, with allegations of “war crimes” and the like? Those who say “no, they won’t, but the threat of doing so enhances their ability to deter Israeli behavior they don’t like” should think twice. Won’t they—if there is considerable public pressure to do so? How would PLO officials explain to the press and public, after some incident, why they were not bring an action in the Hague? The pressure may be irresistible.

It’s almost laughable that Abrams so matter-of-factly describes the problem: If we grant Palestine statehood, Israel could be brought to court for its war crimes!

As revealed by US diplomatic cables released by WikiLeaks, US and Israeli officials met in February 2010 that Palestinian Authority Justice Minister Ali Kashan had requested that ICC Prosecutor Luis Moreno-Ocampo investigate alleged Israeli war crimes in the occupied territories since 2002, up to and including Israel’s attacks on Gaza in December 2008 and January 2009, called Operation Cast Lead.

According to the cable, Israeli officials requested multiple times that the US “state publicly its position that the ICC has no jurisdiction over Israel regarding the Gaza operation,” and “warned that PA pursuit of Israel through the ICC would be viewed as war by the GOI [Government of Israel].”

Reading the cables, it becomes clear Israeli officials deflect allegations of war crimes, not by denying they took place, but by dismissing them via a legal technicality. Present at the meeting was IDF Head of the International Law Department Col. Liron Libman who “noted that the ICC was the most dangerous issue for Israel.”

These concerns are markedly different from Israel’s public objections to Palestinian statehood. But Abrams is quite open about the fact that Palestinian statehood not only would obstruct Israel’s plans to claim all of the West Bank and Gaza, but would make Israel vulnerable to legal recourse.

From a CNN report on a US drone strike this week in Yemen that killed killed 13 civilians, including three women:

Residents are not denying the existence of al Qaeda elements in their region but say that misdirected strikes work in favor of the militant group, helping them recruit new operatives.

“I would not be surprised if a hundred tribesmen joined the lines of al Qaeda as a result of the latest drone mistake,” said Nasr Abdullah, an activist in the district of the attack. “This part of Yemen takes revenge very seriously.”

See here and here for more on how US drone strikes generate blowback and new al-Qaeda recruits. (h/t Micah Zenko)

Listen up, and get this straight. President Obama doesn’t answer to you or me or any American citizen or to the press, and if he doesn’t feel like explaining to you how he utilizes his kingly powers of executing anyone, anywhere on his immediate command, he won’t. And you just have to deal with it. Got that!?

Noah Shachtman at Danger Room points to a recent CNN interview with President Obama on his use of targeted killing by drone. Obama does two things only: (1) completely dodges the questions and (2) what he does actually say, are lies. Shachtman says it’s “baloney.”

Regarding the alleged criteria for targeted killings – the target has to be “authorized by our laws” for a threat that’s “not speculative,” etc. – Shachtman writes:

In both Yemen and Pakistan, the CIA is allowed to launch a strike based on the target’s “signature” — that is, whether he appears to look and act like a terrorist. As senior U.S. officials have repeatedly confirmed, intelligence analysts don’t even have to know the target’s name, let alone whether he’s planning to attack the U.S. In some cases, merely being a military-aged male at the wrong place at the wrong time is enough to justify your death.

“What I found most striking was his claim that legitimate targets are a ‘threat that is serious and not speculative,’ and engaged in ‘some operational plot against the United States,’ That is simply not true,” emails the Council on Foreign Relations’ Micah Zenko, who has tracked the drone war as closely as any outside analyst. “The claim that the 3,000+ people killed in roughly 375 nonbattlefield targeted killings were all engaged in actual operational plots against the U.S. defies any understanding of the scope of what America has been doing for the past ten years.”

Zenko later describes Obama’s supposed inability to speak on such classified matters as “total BS.” According to law, the President can declassify anything. And anyways, it could not be any clearer that Obama avoids answering these questions, not because it would harm “national security,” but because it would harm his own political career if he simply admitted that he took it upon himself to kill anyone, even Americans, on the mere suspicion of wrongdoing, without charges or trial by jury.

Not only are we not allowed to know who Obama is targeting for assassination by drone, we can’t even know who they’ve killed after the fact. As the Washington Post reported late last year, “the identities” of almost all drone victims “remain classified, as does the existence of the drone program itself.” And, “Because the names of the dead and the threat they were believed to pose are secret, it is impossible for anyone without access to U.S. intelligence to assess whether the deaths were justified.”

If Obama doesn’t have to tell us who he kills, he doesn’t have to face public scrutiny for how many were innocent. “When you have warfare with no political costs at all, it becomes much too easy to resort to violence,” as Clive Stafford Smith put it. An ignorant public is absolutely essential to the functioning of Obama’s foreign policy. The normalization of covert war, gratuitous secrecy, and tyrannical executive authority is blithely accepted by most of the public, which is the final ingredient that will prevent this president and any of his administration from ever facing legal scrutiny for their actions.

Yesterday, in our news section, we provided a link to Glenn Greenwald’s article on CNN International’s refusal to air a documentary it commissioned uncovering the brutal crackdown by the US-backed dictatorship in Bahrain. Greenwald linked to the documentary, now available on YouTube, but many people still have not seen it. It does a brilliant job of illustrating the abuses the people have suffered at the hands of the regime.

It’s useful to remind yourself while watching this that Washington wholeheartedly supports this kind of repression. The US has sent more than $60 million in direct aid to Bahrain since 2008, and has another $11 million scheduled for 2013. In recent years, the US has sent Bahrain riot gear, tanks, helicopter gunships, and over a million pounds of ammunition – all of which have been integral to the ruthless crackdown imposed on reform-minded Bahrainis. After international condemnation, the Obama administration was forced to suspend a new $53 million package of military equipment, making it conditional on reform. And when Bahraini opposition groups and a U.N. statement acknowledged that no substantive move towards reform had been made, Obama began secretly pushing through the arms package, circumventing congressional rules and failing to inform the public.

The protests in Bahrain are not just protests against that particular regime; they are de facto protests against this reprehensibly US foreign policy, which bribes dictatorships in order to maintain control of the Middle East. As a 2004 Defense Department report put it, when referring to the Gulf Arab states, “Without the US these regimes could not survive.”