Month: May 2013

Harold Koh, formerly the Obama administration’s top State Department lawyer, has criticized the systematic secrecy surrounding the drone war. The New York Times:

In a speech Tuesday at Oxford University, Harold H. Koh, a Yale law professor who as the State Department’s top lawyer in 2010 gave the first public speech explaining the targeted killing program, said the administration “has not been sufficiently transparent to the media, to the Congress and to our allies.”

The result is “a growing perception that the program is not lawful and necessary, but illegal, unnecessary and out of control,” said Mr. Koh, who served during President Obama’s entire first term. “The administration must take responsibility for this failure, because its persistent and counterproductive lack of transparency has led to the release of necessary pieces of its public legal defense too little and too late.”

Notably, Koh defends the legality and the necessity of the drone war, but quibbles with the administration’s secrecy primarily because it has unhelpful consequences in public perceptions of the covert targeted killing program.

Koh has a history of legally justifying expansive powers of the executive, famously defending the President’s war in Libya, despite violating the Constitution, by not receiving congressional sanction, and the War Powers Resolution.

The fact that someone like Koh, who in Obama’s first term surprised people with his willingness to interpret the law in a way that basically put zero restraints on the Imperial Presidency, is worried about the drone war’s secrecy is remarkable. Here’ s guy who defends going to war without congressional authority, defends presidential kill lists and a world-wide assassination program, defends indefinite detention policies – and even he thinks the secret war Obama has been waging since 2009 goes a little too far.

Writing in The New Yorker, Dexter Filkins runs through the Obama administration’s reluctance to further intervene in Syria. There are many cons White House officials articulate, but here’s two that stood out to me.

Unintended Consequences

Filkins quotes a senior White House official as being mindful of the blowback experienced when the US armed and trained jihadists in Afghanistan in the 1980s, and all of the consequences of that, including the longest war in America’s history:

Still, Obama has said that he is worried that arming the rebels will have unintended consequences: a genocide against the Alawites; weapons falling into the hands of Islamist extremists, as happened when the U.S. armed Afghan jihadis in the nineteen-eighties; or a rapid political collapse that demolishes the state’s institutions. “If we’re not careful about who gets weapons, we’ll be cleaning that up for years,’’ the senior White House official told me. “We saw that movie in Afghanistan.”

Ineffective Options

As I’ve argued here many times – indeed, as top military officials at the Defense Department have argued – taking military action is likely to worsen the humanitarian situation.

Another concern is that, as in Libya, grounding enemy planes and helicopters will not end the majority of civilian deaths; artillery and Scud missiles appear to be killing far more people than planes are. “In Syria, the regime-controlled areas are interspersed with the rebel-controlled areas, so a no-fly zone is not going to stop the killing,’’ [Benjamin] Rhodes [Obama’s deputy national-security adviser] said. “Once the violence became sectarian, you can’t cover every neighborhood from the air.” In this view, a no-fly zone would be only the beginning of U.S. involvement. “What happens when the rebels keep losing?’’ a senior defense official told me. “What happens when civilians keep getting killed? They will ask us to do more. And we’ll already be in. We will be invested in an outcome. Pretty soon, we’ll be striking ground targets.”

…“We do not want to see the Syrian government disappear,’’ [Robert] Ford [U.S. Ambassador to Syria] said. It “will create more refugee flows; it will help the extremists…That is our biggest concern in terms of maintaining unity and keeping Syria from being an operating base for terrorist extremists.”

Obama wants to see Assad go, but he is terrified that, if it happens too fast, a vacuum could open up—like the one in Baghdad in 2003—and be filled by Islamist extremists.

Still, Obama’s limited interventionism in Syria continues to worsen the situation in a direction contrary to the above stated concerns. Filkins:

A large proportion of the rebels’ matériel is provided by Qatar, Turkey, and Saudi Arabia: rockets, guns, and millions of rounds of ammunition, often bought in Croatia and shipped to rebel bases on the Turkish and Jordanian borders. At a congressional hearing in April, Secretary of State John Kerry said that the United States was not arming the rebels but was “coördinating very, very closely with those who are.” Officials in Washington told me that they believe the weapons have begun to tilt the balance in favor of the rebels.

Much has been made of the Obama administration’s decision to set up shop in Jordan under the pretense of containing the Syrian conflict and of training so-called moderate elements in the Syrian rebel opposition. That is the pretense that has so far been publicized in the news media and is thus the pretense that critics have denounced as a matter of policy.

The popular refrain among those who oppose US intervention in Syria has been that the Obama administration is siding with Sunni jihadists to unseat the Assad regime. I’ve argued that is not what is happening, or at least that it is grossly oversimplified.

Another piece of the puzzle has been made public with a report from journalist Phil Sands who interviewed one of the Syrian rebel commanders that met with US officials in Jordan. According to him, “the Americans were more interested in talking about Jabhat Al Nusra, the Al Qaeda-affiliated group waging war on the Syrian regime, than they were in helping the rebels advance on Damascus.”

The Americans began discussing the possibility of drone strikes on Al Nusra camps inside Syria and tried to enlist the rebels to fight their fellow insurgents.

“The US intelligence officer said, ‘We can train 30 of your fighters a month, and we want you to fight Al Nusra’,” the rebel commander recalled.

Opposition forces should be uniting against Mr Al Assad’s more powerful and better-equipped army, not waging war among themselves, the rebel commander replied. The response from a senior US intelligence officer was blunt.

“I’m not going to lie to you. We’d prefer you fight Al Nusra now, and then fight Assad’s army. You should kill these Nusra people. We’ll do it if you don’t,” the rebel leader quoted the officer as saying.

What the commander says transpired in Jordan illustrates a dilemma that has preoccupied, even paralysed, Syria’s opposition and their international supporters – how to deal with the expanding role of Islamic extremists in the anti-Assad insurgency.

Other meetings with Western and Arab intelligence services have shown a similar obsession with Al Nusra, the commander said.

“All anyone wants is hard information about Al Nusra, it seems to be all they are really interested in. It’s the most valuable commodity you can have when dealing with these intelligence agencies,” he said.

According to this rebel commander, his goal of overthrowing the Assad regime was sidelined in favor of American plans to have the rebels fight among themselves. This falls in line with several other publicly available accounts of the US approach.

In describing Jordan’s role serving as a conduit for arms going to a select group of Syrian rebels, the Guardian reported last month that the US and its allies “have sharply increased their backing of some rebels to try to stop the advances of al-Qaeda-linked groups among them.”

“A push to defeat al-Qaeda, rather than an outright bid to oust Syria’s leader, Bashar al-Assad, is Jordan’s driving force,” the Guardian added.

In addition to the clandestine effort in Jordan to fight the Nusra Front, the Obama administration has also sent the CIA back into Iraq to support Iraqi state militias (the Shiite regime in Baghdad is an ally of Assad, nominally at least) to fight al-Qaeda affiliates pouring into Syria to join the rebellion. The Obama administration even considered a request from the Iraqi government to use drones to bomb Islamist rebel forces along the Iraq-Syria border.

It’s true that Obama has sent non-lethal and (indirectly) lethal aid to the rebels, despite the fact that the great bulk of the fighters who actually matter are jihadists. But the truth is, Obama has ruled out sending decisive aid, lethal or non-lethal, to Syria’s rebels. He reportedly overruled the suggestions of former Secretary of State Hillary Clinton, former Defense Secretary Leon Panetta, and Chairman of the Joint Chiefs Martin Dempsey – all of whom advocated arming the rebels. Instead, Obama made policy moves like designating the al-Qaeda in Iraq offshoot in Syria a terrorist organization and pressuring Saudi Arabia not to send heavier arms like anti-aircraft weapons.

As the State Department spokeswoman Victoria Nuland said back in January, even as the US supports the Syrian opposition in some abstract way, it is of utmost importance to “maintain the functions of the state.” Syria may have been floated as a target for regime change by the Bush administration’s most fanciful neoconservatives, but Obama sees the chaos of Sunni jihadists taking control of Syria as a much worse outcome than Assad sticking around a while longer.

That said, this policy shift comes far too late. The Syrian war is now early in its third year and weapons from Washington’s Wahabi zealots in Saudi Arabia and in places like Qatar have undoubtedly made their way into the hands of jihadists. The protracted conflict, as Peter Harling and Sarah Birke write at The Middle East Research and Information Project, “never would have reached such cataclysmic proportions were it not for more than a little help from abroad.”

“The opposition would have thought twice about taking up arms had it not been convinced by shallow shows of Western outrage that it would not be left to face the consequences alone,” they argue.

US foreign policy is constantly remedying the catastrophes it has previously wrought. Bush’s war for regime change in Iraq gave rise to al-Qaeda in Iraq (AQI). Obama’s meddling (and that of his allies in the Gulf) in Syria’s civil conflict prompted AQI to move to Syria and fight Assad as Jabhat al-Nusra. Now the meddling continues to try and eliminate al-Nusra, which has quickly become the foremost element in Syria’s rebellion. It is an endless trail of failures, leading to more interventions, which lead to more failures.

The September 18, 2001 Authorization for Use of Military Force (AUMF), ostensibly a vehicle for the U.S. to go after the perpetrators of the 9/11 terrorist attacks in New York and Washington, DC., turns out to have been a whole hell of a lot more than that nearly 12 years on. That simple joint resolution has been stretched very thin during the War on Terror. The original text gives the President permission 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, or harbored such organizations or persons.” Fair enough (ish).

But since September, 2001, we’ve had 12 years of war in Afghanistan. The Bush administration also used the AUMF to justify Gitmo and still-unknown levels of NSA spying on Americans. Bush began the drone program cautiously (relatively speaking), and the Obama administration’s drone strikes have continued and dramatically increased the scope and scale of those attacks — branching out into strike in Yemen, Somalia, Mali, and elsewhere. In short, the AUMF has served as a sturdy pillar of support for the potentially endless and apparently geographically limitless War on Terror.

So, knowing that, it’s almost tempting to take talk of an “update” to the resolution as good news. Could it be any worse?

Sure could. Most of the folks wanting to fix AUMF are notoriously hawkish. Sens. John McCain and Lindsey Graham being the most obvious — and alarming — examples of powerful folks who believe the president’s war powers are being forever constrained. Graham seems to miss no opportunity to clamor for more powers for the president. After the Boston Marathon bombing,he repeatedly demanded that surviving suspect Dzhokhar Tsarnaev be treated as an enemy combatant. Sen. Bob Corker is also touting the “update” AUMF line heavily. And has McCain met a warmaking power he doesn’t like, at least in the past 13 years?

Today it was reported that McCain, Democrat Sen. Dick Durbin, Senate Armed Services Committee Chair Carl Levin, along with Graham and Corker, gathered for the initial planning stages of a potential new AUMF. On May 16 there will be a hearing of the Senate Armed Services Committee on this matter.

Noted Politico, optimistically:

A new resolution could call for military action only against al Qaeda or affiliate groups, or organizations designated by Congress as terror backers, according to sources close to the talks. Obama would still be authorized to hold terror detainees, but there would be more congressional oversight of the U.S. struggle against such terror threats, a particularly sensitive issue in light of the recent Boston Marathon bombing.

The problem with messing with the AUMF has been pointed out by various sources in the last few months, including Antiwar’s Kelley B. Vlahos who wrote “Beware of Lawyers Bearing AUMF Fix” in April. Vlahos noted that various Senators, unnamed Obama sources, and the Brookings Institution are all repeating the line that the AUMF is “obsolete” and needs to be updated in order to explicitly authorize new foreign adventures against groups with –at best — tertiary ties to Al-Qaeda.  (Similar agenda, or just terrorists in general, the point is why have broad powers of war stifled by the need for a tie to 9/11?)

In March, Slate reminded us that Congress may be asking for new definitions of Obama’s war-fighting power in order to control it, but they have a laughable track record in that particular area. (See: a large chunk of the 20th century, the start of this one.)

The killing takeaway from the Politico article was also spotted by Empty Wheel, who noted the disturbing overlap between those who crafted the indefinite detainment portion of the 2012 NDAA,and those who think the AUMF isn’t strong enough.

Politico:

Some Democrats, for their part, worry that vocal Obama critics like [Sen. Rand] Paul and Ted Cruz (R-Texas) — or dozens of House Republicans — would use such a debate to attack the president’s policy on all military and national security issues, not just terror-related topics.

“Can you imagine what Paul or Cruz would do with this?” said one top Democratic aide. “It could be a disaster. And it would be worse in the House.” [emphasis added]

There you have it. Nobody hankering to rewrite the rules of war should be trusted in this task, especially not these guys. The only thing to do with the AUMF is repeal it.

If, as alleged, the Syrian regime has used chemical weapons, it would indeed be a serious development, constituting a breach of the Geneva Protocol of 1925, one of the world’s most important disarmament treaties, which banned the use of chemical weapons.

In 1993, the international community came together to ratify the Chemical Weapons Convention, a binding international treaty that would also prohibit the development, production, acquisition, stockpiling, retention, and transfer or use of chemical weapons. Syria is one of only eight of the world’s 193 countries not party to the convention.

However, U.S. policy regarding chemical weapons has been so inconsistent and politicized that the United States is in no position to take leadership in response to any use of such weaponry by Syria.

The controversy over Syria’s chemical weapons stockpiles is not new. Both the Bush administration and Congress, in the 2003 Syria Accountability Act, raised the issue of Syria’s chemical weapons stockpiles, specifically Syria’s refusal to ratify the Chemical Weapons Convention. The failure of Syria to end its chemical weapons program was deemed sufficient grounds by a large bipartisan majority of Congress to impose strict sanctions on that country. Syria rejected such calls for unilateral disarmament on the grounds that it was not the only country in the region that had failed to sign the CWC—nor was it the first country in the region to develop chemical weapons, nor did it have the largest chemical weapons arsenal in the region.

Indeed, neither Israel nor Egypt, the world’s two largest recipients of U.S. military aid, is a party to the convention either. Never has Congress or any administration of either party called on Israel or Egypt to disarm their chemical weapons arsenals, much less threatened sanctions for having failed to do so. U.S. policy, therefore, appears to be that while it is legitimate for its allies Israel and Egypt to refuse to ratify this important arms control convention, Syria needed to be singled out for punishment for its refusal.

The first country in the Middle East to obtain and use chemical weapons was Egypt, which used phosgene and mustard gas in the mid-1960s during its intervention in Yemen’s civil war. There is no indication Egypt has ever destroyed any of its chemical agents or weapons. The U.S.-backed Mubarak regime continued its chemical weapons research and development program until its ouster in a popular uprising two years ago, and the program is believed to have continued subsequently.

Israel is widely believed to have produced and stockpiled an extensive range of chemical weapons and is engaged in ongoing research and development of additional chemical weaponry. (Israel is also believed to maintain a sophisticated biological weapons program, which is widely thought to include anthrax and more advanced weaponized agents and other toxins, as well as a sizable nuclear weapons arsenal with sophisticated delivery systems.) For more than 45 years, the Syrians have witnessed successive U.S. administration provide massive amounts of armaments to a neighboring country with a vastly superior military capability which has invaded, occupied, and colonized Syria’s Golan province in the southwest. In 2007, the United States successfully pressured Israel to reject peace overtures from the Syrian government in which the Syrians offered to recognize Israel and agree to strict security guarantees in return for a complete Israeli withdrawal from occupied Syrian territory.

Continue reading “The US and Chemical Weapons: No Leg to Stand On”