Month: November 2012

The essence of the Obama administration’s legal justification for the drone war in Pakistan, Yemen, and elsewhere is that the bombs are dropped only to disrupt an imminent threat to America from militants involved in terrorist operations. This narrative is important for the administration to keep. And it is a complete lie.

Scott Shane’s report in The New York Times, which I blogged about here, has been getting considerable attention for various reasons. The lede of the story was that Obama was scrambling to establish rules and a “legal architecture,” as Obama recently put it, to govern the Executive Branch’s use of weaponized drones in a potential Romney administration. Embedded in this was the concession that the Obama administration is decidedly not imposing any such legal architecture on itself, instead acting outside the law with ill-defined powers of unprecedented breadth.

One of the important points from Shane’s piece was that the drone war is in fact not addressing imminent threats to the US. That is not how targets are chosen, contrary to administration claims. As Micah Zenko, fellow at the Council on Foreign Relations and a consistent critic of the drone wars, told Shane, “We don’t say that we’re the counterinsurgency air force of Pakistan, Yemen and Somalia, but we are.”

This undermines the Obama administration’s entire legal case for the drone war. If the use of force is not in self-defense and not addressing an imminent threat to the US, but is instead a murderous policing technology for the benefit of our puppet dictatorships, then it is in violation of both domestic and international law.

Justin Elliot at ProPublica interviewed Zenko to follow up on this point:

You were quoted over the weekend arguing that the U.S., with the campaign of drone strikes, is acting as the “counterinsurgency air force of Pakistan, Yemen and Somalia.” How did you come to this conclusion?

Under the Obama administration, officials have argued that the drone strikes are only hitting operational Al Qaeda leaders or people who posed significant and imminent threats to the U.S. homeland. If you actually look at the vast majority of people who have been targeted by the United States, that’s not who they are.

There are a couple pieces of data showing this. Peter Bergen of the New America Foundation has done estimates on who among those killed could be considered “militant leaders” — either of the Pakistani Taliban, the Afghan Taliban, or Al Qaeda. Under the Bush administration, about 30 percent of those killed could be considered militant leaders. Under Obama, that figure is only 13 percent.

Most of the people who are killed don’t have as their objective to strike the U.S. homeland. Most of the people who are killed by drones want to impose some degree of sharia law where they live, they want to fight a defensive jihad against security service and the central government, or they want to unseat what they perceive as an apostate regime that rules their country.

Why does this distinction matter so much?

This is a huge outstanding dilemma. Is the primary purpose of the drone attacks counter-terrorism, or is it counter-insurgency? If it’s counter-insurgency, that is a very different mission, and you have to rethink the justifications and rethink what the ultimate goal is of using lethal force.

There was a February article in the New York Times reporting that the goal of U.S. policy in Yemen was to kill about two dozen Al Qaeda leaders. There’s been about 50 drone strikes in Yemen since that article. Meanwhile, according to U.S. government statements, the size of AQAP has grown from “several hundred” to “a few thousand members.” So the question is, who is actually being targeted, and how does this further U.S. counterterrorism objectives?

Is this use of drone strikes to kill people who are not imminent threats to the U.S. new?

No. The marked shift was in summer 2008 when the Bush administration decided to significantly lower the threshold of who could be attacked.

The purpose of this change was to reduce threats to U.S. servicemembers in southern Afghanistan and to intervene where some suicide attacks were organized in the tribal areas of Pakistan. This was the time when the “signature strikes” really became ingrained. Bush administration officials called this the “‘reasonable man’ standard,” and if you were displaying what are called “patterns of behavior,” you could be killed.

People mistakenly think that this policy started under Obama, but it didn’t. It did accelerate markedly under Obama. He has had more drones to do this, was much more vigorous about authorizing their use, and expanded the signature strikes into Yemen.

How does this use of drone attacks square with official administration statements describing the policy?

They will never say that the United States uses drones to fight local insurgencies. If they made that case, they would have to create a new bastion of justifications. The current stated justifications are very carefully thought out and very deliberate to loosely adhere to the post-9/11 Authorization to Use Military Force and principles of Article 51 of the UN Charter, governing the use of force.

There has been a long-term fight with people within the administration who want to reform the policy and think the U.S. needs to be more transparent — both for domestic reasons and because of the precedents being set for the use of drone strikes. If other countries follow our practice in how they will use drone strikes, that would be a very unstable, dangerous world to live in.

When the front page of The New York Times and a fellow at the Council of Foreign Relations can matter-of-factly discuss the President’s deliberate lies to the American people, told in order to claim legal sanction for actions that are not legal, we should be aware of what this means. These are not radical, subversive sources. These are establishment sources. The claim that President Obama’s killing of over 3,000 people in the drone war has been largely illegal appears uncontroversial.

Is anyone suggesting the administration be prosecuted? Or is the political culture so cynical that adherence to the rule of law is not even a worthwhile pretense any more?

Commentators across the spectrum are talking this week about how Hamas was the real victor of the latest conflict, even though Gaza disproportionately felt the costs of advanced military bombardment. Here’s Thanassis Cambanis in Foreign Affairs as an example:

Now Hamas will tout the concessions it won from Israel last week — as part of the ceasefire, Israel agreed to open the border crossings to Gaza, suspend its military operations there, and end targeted killings — as proof that it should not give up fighting. Meanwhile, the outcome should be enough to buy Hamas cover for its poor record of governance and allow it to again defer making tough choices about statehood, negotiations, regional alliances, and military strategy. The group might even be able to use the momentum to supplant Fatah in the West Bank as it has done in Gaza.

That last part is important. If Hamas gains enough popularity to sideline Fatah, we can say goodbye to the viability of the two-state settlement. Fatah’s infamous deference to the US and Israel and to the defunct peace process – which was always just a scheme to provide Israel with more time to colonize additional Palestinian land – has not won them many emphatic fans. In this sense, Fatah has been useful to Israel.

But in another sense, Fatah represents the greatest threat to Israel’s plan to have permanent sovereignty over all of historic Palestine (everything west of the Jordan River). They openly support the two-state solution and they have a certain amount of secular nationalist appeal. Their recent bids to get recognized at the United Nations are among Israel’s greatest concerns. Since the PLO are non-violent, Israel can’t respond with plain old brute force the way they do with Hamas. With Hamas, Israel can easily demonize any sort of Palestinian resistance and boil down the Israeli-Palestinian conflict to an Israel-versus-the-terrorists dichotomy.

While Hamas has recently tried to engage with the region and to moderate itself by voicing support for the two-state solution, other Hamas factions have hardened. Cambanis writes that the Hamas prime minister, Ismail Haniya, has recently “expressed no interest in talking about a two state solution and overall, the rest of the Gaza-based leadership has simply grown more uncompromising under the Israeli blockade and now two lopsided wars. It prefers full-throated resistance to any political settlement.”

Ironically enough, Israel bolstered Hamas from the beginning. “In 1973,” writes Jonathan Cook in Disappearing Palestine, “six years after the occupation began, Israel licensed the [Muslim]Brotherhood again and allowed it to set up a network of charities and welfare societies, funded by the Gulf states. Israel hoped that the Muslim Brotherhood would dissipate Palestinian nationalism and support for the PLO among the local population and encourage a social and moral conservatism that would make the Palestinians more moderate.”

So much for that. The Israeli leadership knew early on that their support for the Brotherhood in Gaza backfired severely when it morphed into Hamas in 1987. But with the possibility of the PLO achieving non-state status at the UN, non-violent nationalism towards the two-state solution looks like the greater of two evils to many in Tel Aviv.

And this is why Israel still emerged the victor in the aftermath Operation Pillar of Cloud. The Fatah leadership in the PLO has international appeal and may very well make headway at the United Nations. For Israel – which has relied on the status quo to deliberately alter the demography of the West Bank and Judiaze East Jersualem with the aim of a Greater Israel – that’s a tough nut to crack. Hamas, on the other hand, is a straw-man. They can more easily be dealt with in the way Israel is used to dealing with Palestinians – with crushing brute force. And so long as US support for Israel is maintained, that is what Israel will continue to do.

Look: people on television actually having a conversation about the drone war, its (il)legality, and Obama’s abuse of executive power.

Obama’s war on transparency is forever intensifying. His crackdown on whistleblowers and attacks on legitimate journalism as national security threats are now infamous. But last week the President issued a “Memorandum for the Heads of Executive Departments and Agencies” which detailed new requirements that agencies must meet in order to tackle “insider threats,” or the threat of potential leakers and whistleblowers.

The new standards, according to Steven Aftergood at Secrecy News, are based on an October 2011 executive order, “and they reflect the ongoing tightening of safeguards on classified information in response to the voluminous leaks of the last few years.”

To illustrate the extent to which the Obama administration has driven the conduct of the Executive Branch underground, consider that the government spent more than $11 billion dollars in 2011 just on keeping secrets from the American public (compared with $4.7 billion in 2001).

Document reviews conducted by ISOO in 2009 discovered violations of classification rules in 65% of the documents examined, with several agencies posting error rates of more than 90%. According to the ISOO, the government made a record 76,795,945 classification decisions in 2010, an increase of more than 40% from 2009.

“To me it illustrates the most important problem — namely that we are classifying far too much information,” Aftergood has said. “The credibility of the classification system is collapsing under the weight of bogus secrets.”

At this point, though, the Obama administration is just piling on:

But the latest issuance also illustrates the superfluousness (or worse) of current congressional action concerning leaks.  Executive branch agencies do not need Congress to tell them to develop “a comprehensive insider threat program management plan,” as would be required by the Senate version of the pending FY2013 Intelligence Authorization Act (section 509).  Such plans will go forward in any case.

And this intelligence bill contains measures intended to restrict contacts between reporters and government officials, in an attempt to crack down on press freedoms when they happen to conflict with what Obama wants Americans to read about.

Sen. Ron Wyden has spoken out against the bill. “I have been on the Senate Intelligence Committee for 12 years now, and I can recall numerous specific instances where I found out about serious government wrongdoing–such as the NSA’s warrantless wiretapping program, or the CIA’s coercive interrogation program–only as a result of disclosures by the press,” he said. And Obama is out to change that.

Aftergood:

Sen. Ron Wyden has placed a hold on the pending intelligence bill, citing objections to several of the proposed anti-leak provisions contained in Title V of the bill. He said the proposed steps were misguided or counterproductive.

“I am concerned that they will lead to less-informed public debate about national security issues, and also undermine the due process rights of intelligence agency employees, without actually enhancing national security,” he said on November 14.

Obama’s efforts have the feel of making these secrecy measures a permanent fixture of the US government.

“The liberties of a people never were, nor ever will be, secure, when the transactions of their rulers may be concealed from them.” – Patrick Henry

The greatest political conceit held by those in power is that rules only apply to others, not oneself. President Obama, according to the New York Times, embraces this conceit wholly in his administration of the drone program.

Before Obama won reelection, he was nervous Romney might win and continue administering the drone wars just as Obama has done (i.e., without checks, balances, oversight, or legal sanction). “Facing the possibility that President Obama might not win a second term,” reports Scott Shane, “his administration accelerated work in the weeks before the election to develop explicit rules for the targeted killing of terrorists by unmanned drones, so that a new president would inherit clear standards and procedures, according to two administration officials.”

This effort “lost some urgency” following Obama’s victory, according to Shane, because, hey, why impose rules and transparency on oneself? They have another four years to run rampant before they do something like that.

According to the Times report, the administration is “still debating whether remote-control killing should be a measure of last resort against imminent threats to the United States, or a more flexible tool, available to help allied governments attack their enemies or to prevent militants from controlling territory.”

In order for a President to use force without Congressional approval, the threat he is supposedly extinguishing must be imminent, that is, an overwhelming threat that allows “no moment for deliberation,” according to a legal memo from the Congressional Research Service. Yet here in the Times it is admitted, once again, that this is a requirement routinely ignored by the Obama administration. It therefore runs counter to both domestic and international law.

Officially, the Obama administration claims it launches drones in response to specific imminent threats and to disrupt ongoing terrorist plots against the US.

But for at least two years in Pakistan, partly because of the C.I.A.’s success in decimating Al Qaeda’s top ranks, most strikes have been directed at militants whose main battle is with the Pakistani authorities or who fight with the Taliban against American troops in Afghanistan.

In Yemen, some strikes apparently launched by the United States killed militants who were preparing to attack Yemeni military forces. Some of those killed were wearing suicide vests, according to Yemeni news reports.

“Unless they were about to get on a flight to New York to conduct an attack, they were not an imminent threat to the United States,” said Micah Zenko, a fellow at the Council on Foreign Relations who is a critic of the strikes. “We don’t say that we’re the counterinsurgency air force of Pakistan, Yemen and Somalia, but we are.”

The violation of the principle of imminence is demonstrated even more starkly with the example of signature strikes, wherein the administration simply murders young men who happen to look like militants:

Originally that term was used to suggest the specific “signature” of a known high-level terrorist, such as his vehicle parked at a meeting place. But the word evolved to mean the “signature” of militants in general — for instance, young men toting arms in an area controlled by extremist groups. Such strikes have prompted the greatest conflict inside the Obama administration, with some officials questioning whether killing unidentified fighters is legally justified or worth the local backlash.

There you have it: signature strikes, which represent the bulk of the drone war, are legally questionable and generate blowback. But President Obama retains the right to act outside the law and provoke militancy against the US. Don’t you worry though, this philosopher king won’t let the next scoundrel president get away with just anything.