Informed Comment

Christopher R. W. Dietrich writes in a guest column for Informed Comment

The cynical manipulation of legal and historical precedent regarding unmanned targeted killings vehicles damages the credibility of the Obama administration.  The recently-leaked argument by the Justice Department is as weak and counterproductive in the light of contemporary international history as it is in terms of constitutional law.  

Commentators have admirably analyzed the flouting of the U.S. Constitution.  The Obama administration vindicates the potential liquidation of American citizens through a spuriously broad redefinition of “imminent threat,” even when the U.S. government does not have clear evidence that a specific attack will take place.  The administration holds that the use of deadly force is “reasonable” even in the case of relative ignorance.  This “trust us” argument moves against a core constitutional right of citizens to neutral judicial review.  Yet the Justice Department rationalizes quashing speech and assassinating citizens without sound evidence of an imminent threat.

The rationale of the Justice Department paper is just as specious in the light of recent history.  At its most disturbing moment, the Justice Department invokes the legal reasoning of the Nixon administration for the extension of the Vietnam War into Cambodia.  In 1969 and 1970, Nixon and his National Security Adviser, Henry Kissinger, approved secret bombing missions and then outright invasion.  A legal adviser rationalized that decision in a February 1970 report.  “If a neutral state has been unable for any reason to prevent violations of its neutrality by the troops of one belligerent…the other belligerent has historically been justified in attacking those enemy forces in that state,” he wrote.   The Obama administration takes this bad argument and makes worse.  Because “transnational non-state organizations” are so diffuse, and “terrorist organizations may move their base of operations,” the United States is justified in eliminating threats with the consent of a host nation.  If the U.S. government determines that the host nation is “unable or unwilling to suppress the threat,” both the Obama and the Nixon administrations reserved the right to act unilaterally.  

Even if Wikileaks cables seem to prove that the governments of Pakistan and Yemen have approved American drone attacks at different moments, the Cambodia analogy should be met with flat rejection and ultimately treated with derision.  The invasion of Cambodia did little to ensure the security of American citizens, as Morton Halperin noted when he resigned in protest.  Public protests exploded across the United States, including at Kent State University, when Nixon admitted to the bombings in May 1970.  Congress passed the War Powers Resolution in 1973 on the notion that the President should consult with officials that do not owe their jobs to him before escalating or extending war.

The international response to overweening American power in history also moves in the opposite direction of the Obama argument.  Another sort of Cambodia analogy is more apt.  The consequences of that abuse extended beyond the geographical boundaries of former French Indochina into the international community.  The Red Cross and the United Nations noted the negative effect of the bombing of civilian populations in Southeast Asia itself in 1969 and 1970.  In an era of decolonization, many UN delegates had recently been colonial subjects themselves.  A number of them compared the cross-border escalation of the war to the human rights abuses of Southern African and Portuguese imperial forces that had pursued national liberation fighters into Zambia or Tanzania.  

The bombing of Cambodia, along with the revelations of the Pentagon Papers and Watergate, helped create a climate of doubt about the balance between means and ends in American foreign policy.  Through Senator Frank Church’s Select Committee, Congress began to investigate the FBI and the CIA in 1974 and 1975.  After exposing just the details that led to the conclusion that the CIA was “a rogue elephant rampaging out of control”—emphasizing plans in the early 1960s to “neutralize” Fidel Castro, Patrice Lumumba of the Congo, Abdul Kassem of Iraq, and Rafael Trujillo of the Dominican Republic—the committee turned to the international impression such activities left.  Targeted killings, even on a far slighter level than the thousands of drone strikes since 2008, produced a backlash that threatened Americans’ safety.  

Recent studies of drone violence support the appraisal of international history.  The joint report by the Stanford International Human Rights Clinic and the New York University Global Justice Clinic, “Living Under Drones,” confirms the Cambodia effect.  After nine months of interviews, the authors concluded that “the dominant narrative” that drones are a surgically precise tool that makes the United States safer is utterly false.  Missiles kill innocent civilians on a regular basis.  Extensive evidence also pinpoints an injurious effect of the drone policy itself: increased anti-American sentiment.  

Drone violence is not only immoral, it is counterproductive.  The harmful impact of drones extends beyond the death and psychological trauma of people in Pakistan, Yemen, and Somalia.  Stepping up the use of unmanned killing machines is not beneficent for the image of America abroad.   The moral justification for drone attacks—that they make the United States a safer place—is even less certain than the legal one.  Such a wrongheaded notion moves against national security, not for it.

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Christopher R. W. Dietrich is assistant professor of History at Fordham University.

Posted in Drone | 20 Comments

Bill Moyers on the downside of droning our enemies to death.

The blurb:

In a web-extended version of his broadcast essay, Bill Moyers gives examples of how indiscriminate killing by our military forces not only cuts down innocent bystanders, but drives “their enraged families and friends straight into the arms of the very terrorists we’re trying to eradicate.” Bill says the Vietnam War, the Iraq War, and President Obama’s prolific use of drones all share a “blind faith in technology, combined with a sense of infallible righteousness.”

Producer: Julia Conley. Editor: Paul Henry Desjarlais.

Posted in Drone, Uncategorized | 13 Comments

The confirmation hearing for John Brennan allowed the country to grapple with many issues that had been swept under the rug and seldom discussed in public. While few to none of them were thus resolved, it does seem to me positive that they were brought up in public.

Surprises?

1. The LAT reports that “Republicans largely focused on whether the CIA should be capturing more terrorists, rather than just killing them.” Let’s get this straight. The GOP is pressuring a Democratic administration to be less bloodthirsty?

2. It turns out the John Brennan wants to turn the drone program over to the Department of Defense. I have long advocated this step (not that it matters much what I think about these matters). As Brennan and his aides point out, having it under the Central Intelligence Agency makes it automatically covert and removed from public inquiry or discussion. While the special operations forces in the US military do not have has much bureaucratic oversight as the CIA, the Department of Defense in general is in the nature of the case more under civilian oversight than the CIA. And, its programs are open to public discussion.

3. The National Journal reports that Brennan also says he recognizes that the drone program as now carried out has the potential to undermine international law, and that the US risks setting precedents that e.g. China and Russia might themselves use for their own purposes in the near future. While the paternalistic assumption that the US is responsible but lesser races are not is problematic, to say the least, the point– that US policy is often cited in justification for controversial actions by other countries– is correct. The problem is that Brennan and Obama seem to be in the position of the young St. Augustine, who is alleged to have prayed that God make him virtuous, but “not yet.”

4. Brennan alleges that he objected to the use of waterboarding when he was deputy executive director of the CIA, but did not pursue the matter because it was being done in a different section of the agency. Hunh? Is it that he was in the Directorate of Intelligence and it was the Directorate of Operations guys who were waterboarding? Isn’t he implying that there are black ops being run by rogue parts of the agency that aren’t open to influence from even deputy executive directors?

5. The LAT says that Brennan has now concluded, after a 6,000 page review distilled into a 300-page summary, that stress positions, humiliations such as nudity, and waterboarding (which I will call torture even though he would not) produced no useful intelligence. I would go further and argue that actually the torture produced key disinformation for which Washington often fell, sending it off on wild goose chases like invading Iraq.

6. Likewise, LAT notes that “Sen. John D. Rockefeller IV (D-W.Va.) said the interrogation program was ‘corrupted by personnel with pecuniary conflicts of interest.’” Hunh? Somebody was making money off the torture? Who, how and why? You can’t just leave us hanging with that tidbit, Sen. Rockefeller!

7. The CIA is telling Sen. Diane Feinstein that the number of innocent civilians killed by US drone strikes annually has typically been in single digits, but also forbade her to say that publicly because everything about drones is classified. If this allegation is true, the CIA is not as good at counting as the young British journalists at the Bureau of Investigative Journalism (scroll down).

8. It turns out that Americans, when asked, think that droning American citizens is illegal, and that they don’t support the drone program if it means killing innocent civilians along with militants. As usual, Americans turn out to be mostly center-left on policy when anyone bothers actually to ask their opinion. Sen. Ron Wyden, among our foremost exponents of the rule of law in these matters, turns out to have an enormous constituency!

9. When senators pressed Brennan to have judicial oversight of drone strike decisions where they concerned Americans, he said it could be considered but doubted whether a court could evaluate intelligence on whether a militant posed a threat. Why can intelligence bureaucrats make that evaluation but judges cannot? Occasionally the arrogance of the intelligence aristocracy peaked out at the hearing.

10. Administration officials are admitting that the drone program, which is allegedly authorized by the 2001 congressional authorization for the use of military force, would be brought into legal question if al-Qaeda were declared defeated, thus putting an ending parenthesis around the AUMF. But I argue that the AUMF is itself unconstitutional, since it went beyond calling for hunting down and punishing the plotters of 9/11 to creating a class of persons (“al-Qaeda members”) who are objects of a Bill of Attainder. You can’t actually declare war on a small civilian organization that is spread over the world. There is no formal definition of an al-Qaeda member, there is no real way to decide who is ‘operational’ and who isn’t, and there is a tendency in the US government to use ‘al-Qaeda’ to describe all militant and/or inconvenient Muslim movements. In fact, the NYT revealed that the US routinely ex post facto puts all young men killed in a drone strike in the category of ‘militants,’ even if it has no idea who they are. Most living actual al-Qaeda members had nothing to do with 9/11 and many are critics of it. The hypocrisy of all this is obvious in Libya, where the US cooperated with Abdel Hakim Belhadj, who became the security director for post-revolutionary Tripoli, even though he could be droned at will by President Obama any day of the week according to current US policy. The entire thing is a definitional, constitutional and legal mess, and Obama should end it all before going out of office.

Posted in CIA, Drone, US politics | 34 Comments

The Drones Team at the Bureau of Investigative Journalism writes:

The Bureau is launching an ambitious new investigation, which will seek to identify as many as possible of those killed in US covert drone strikes in Pakistan, whether civilian or militant.

The Bureau is raising some of the money for this project through a crowd-funding appeal.

As part of our ongoing monitoring and reporting of CIA and Pentagon drone strikes, the Bureau has already recorded the names of hundreds of people killed in Pakistan, Yemen and Somalia.

At the end of January 2013, the Bureau was able to identify by name 213 people killed by drones in Pakistan who were reported to be middle- or senior-ranking militants.

A further 331 civilians have also now been named, 87 of them children.

But this is a small proportion of the minimum 2,629 people who appear to have so far died in CIA drone strikes in Pakistan. The Bureau’s work suggests 475 of them were likely to have been civilians.

‘At the moment we know the names of fewer than 20% of those killed in Pakistan’s tribal areas. At least 2,000 deaths still remain publicly anonymous,’ said Chris Woods, who leads the Bureau’s covert drone war team.

‘Our aim will be to identify by name many hundreds more of those killed. A significant number of those identities will be known by local communities, by US and Pakistani officials, and by militant groups. We hope to convince them to share that information.’

Related story – Analysis: Why we must name all drone attack victims

The project has already secured substantial funding from a UK foundation – but it still needs more funds.

Today the US-based Freedom of the Press Foundation, a crowd-funding organisation aimed at raising money for public interest journalism, announced it is backing the Bureau’s Naming the Dead project. The Bureau’s new investigation will be one of four recipients of Freedom of the Press Foundation’s latest campaign.

Crowd-funding is an established way of supporting journalism in the US and it is increasingly being used in the UK as a way of funding projects, which established organisations ignore or will not fund.

Using the reach of the web, many people (the crowd) are able to give small amounts of money to back a cause or project in which they believe.

‘In the face of official secrecy, having the full facts about who is killed is essential for an informed debate about the effectiveness and ethics of the drone campaign,’ said Christopher Hird, managing editor of the Bureau. ‘And it is exciting to be able to give all of our supporters worldwide the chance to be part of our first venture in this democratic form of funding.’

To make a donation to the project click here.

Focus on Pakistan
While the Bureau will seek to extend the project to Yemen and Somalia in the near future, the initial focus will be on the nation where most US covert drone strikes have taken place.

Researchers based in Pakistan and the UK will seek to build up biographical information for all of those killed, whether civilian or militant – their name, age, gender, tribe, and village, for example. Where possible, photographs, witness statements and official documentation will also be published.

The team will seek assistance from the Pakistan and US governments in identifying those killed. And researchers will also call on Taliban factions and other militant groups to release information on the many hundreds of fighters killed in more than 360 US drone strikes since 2004.

Mirrored from The Bureau of Investigative Journalism (click on this link for more information).

Posted in Afghanistan, CIA, Drone, Pakistan, Pakistan Taliban, Uncategorized, Yemen | Comments Off

NBC’s Michael Isikoff has revealed the text of a white paper composed for Congress by the Department of Justice that sheds light on the legal arguments made by Eric Holder in justifying the killing by drone strike of Americans abroad, who are suspected of belonging to al-Qaeda. That the memo did not even require that the US know of a specific and imminent plot against the US, of which the al-Qaeda member was guilty, for it to kill him from the skies, alarmed all the country’s civil libertarians.

Here are five objections to the vision of the memo, which it seems to me is directly contrary to the spirit and the letter of the US constitution. It is contrary in profound ways to the ideals of the founding generation.

1. In the Western tradition of law, there can be no punishment without the commission of a specific crime defined by statute. The memo does not require that a specific crime have been committed, or that a planned criminal act be a clear and present danger, for an American citizen to be targeted for execution by drone.

2. To any extent that the president’s powers under the memo are alleged to derive from the 2001 Congressional Authorization for the Use of Military Force, i.e. from the legislature, they are a form of bill of attainder (the History Learning Site explains what that is here):

“A bill, act or writ of attainder was a piece of legislation that declared a person or persons guilty of a crime. A bill of attainder allowed for the guilty party to be punished without a trial. A bill of attainder was part of English common law. Whereas Habeus Corpus guaranteed a fair trial by jury, a bill of attainder bypassed this. The word “attainder” meant tainted. A bill of attainder was mostly used for treason . . . and such a move suspended a person’s civil rights and guaranteed that the person would be found guilty of the crimes stated in the bill as long as the Royal Assent was gained. For serious crimes such as treason, the result was invariably execution.”

What, you might ask, is wrong with that? Only that it is unconstitutional. Tech Law Journal explains:

“The Constitution of the United States, Article I, Section 9, paragraph 3 provides that: “No Bill of Attainder or ex post facto Law will be passed.” . . .

“These clauses of the Constitution are not of the broad, general nature of the Due Process Clause, but refer to rather precise legal terms which had a meaning under English law at the time the Constitution was adopted. A bill of attainder was a legislative act that singled out one or more persons and imposed punishment on them, without benefit of trial. Such actions were regarded as odious by the framers of the Constitution because it was the traditional role of a court, judging an individual case, to impose punishment.” William H. Rehnquist, The Supreme Court, page 166.

The form of the AUMF, in singling out all members of al-Qaeda wherever they are and regardless of nationality or of actual criminal action, as objects of legitimate lethal force, is that of a bill of attainder. Congress cannot declare war on small organizations– war is declared on states. Such a bill of attainder is inherently unconstitutional.

3. The memo’s vision violates the principle of the separation of powers. It makes the president judge, jury and executioner. Everything is done within the executive branch, with no judicial oversight whatsoever. The powers the memo grants the president are the same enjoyed by the absolute monarchs of the early modern period, against whom Montesquieu penned his Spirit of the Laws, which inspired most subsequent democracies, including the American. Montesquieu said:

“Again, there is no liberty, if the judiciary power be not separated from the legislative and executive. Were it joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control; for the judge would be then the legislator. Were it joined to the executive power, the judge might behave with violence and oppression.

There would be an end of everything, were the same man or the same body, whether of the nobles or of the people, to exercise those three powers, that of enacting laws, that of executing the public resolutions, and of trying the causes of individuals.

Most kingdoms in Europe enjoy a moderate government because the prince who is invested with the two first powers leaves the third to his subjects. In Turkey, where these three powers are united in the Sultan’s person, the subjects groan under the most dreadful oppression.

Ironically, given contemporary American Islamophobia, the Obama administration has made itself resemble not the Sun-King, Louis XIV, who at least did have a court system not completely under his thumb, but rather, as Montesquieu saw it, the Ottoman sultans, who he claimed combined in themselves executive, legislative and judicial power. (Actually the Muslim qadis or court judges who ruled according to Islamic law or sharia were also not completely subjugated to the monarch, so even the Ottomans were better than the drone memo).

4. The memo resurrects the medieval notion of “outlawry”– that an individual can be put outside the protection of the law by the sovereign for vague crimes such as “rebellion,” and merely by royal decree. A person declared an outlaw by the king was deprived of all rights and legal protections, and anyone could do anything to him that they wished, with no repercussions. (The slang use of “outlaw” to mean simply “habitual criminal” is an echo of this ancient practice, which was abolished in the UK and the US).

I wrote on another occasion that the problem with branding someone an “outlaw” by virtue of being a traitor or a terrorist is that this whole idea was abolished by the US constitution. Its framers insisted that you couldn’t just hang someone out to dry by decree. Rather, a person who was alleged to have committed a crime such as treason or terrorism had to be captured, brought to court, tried, and sentenced in accordance with a specific statute, and then punished by the state. If someone is arrested, they have the right to demand to be produced in court before a judge, a right known as habeas corpus (“bringing the body,” i.e. bringing the physical person in front of a judge).

The relevant text is the Sixth Amendment in the Bill of Rights:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

5. The memo asks us to trust the executive to establish beyond the shadow of a doubt the guilt of an individual in a distant land, to whom access is so limited that the US cannot hope to capture him or have local authorities capture him. But Andy Worthington has established that very large numbers of the prisoners the US sent to Guantanamo were innocent of the charges against them. If the executive arm of the government can imprison people mistakenly, it can blow them away by drone mistakenly. A US government official once told me the story of an Iraqi Shiite who had fled persecution under Saddam through Iran all the way to Afghanistan. In 2001, locals eager to make a buck turned him in as “Taliban” to the US military, which apparently did not realize that Iraqi Shiites would never ever support a hyper-Sunni movement like that. So the Iraqi Shiite was sent to Guantanamo and it could even be that Taliban themselves were paid by the US for turning him in. The official may have been speaking of Jowad Jabar. These American officials are way too ignorant to be given the power to simply execute human beings from the sky on the basis of their so-called ‘intelligence.’

Then there is the whole premise of the memo, quite apart from its substance. The memo, as Glenn Greenwald points out, ratifies the Bush/Cheney theory that the whole world is a battlefield on which the US is continually at war. Treating the few hundred al-Qaeda, spread around the world in 60 small cells, as an enemy army, making them analogous to German troops in WW II, is insane on the face of it. Our current secretary of state, John Kerry, largely rejected the notion. Al-Qaeda consists of criminals, not soldiers, and they pose a police counter-terrorism problem, not a battlefield problem. The notion that the whole world is a battlefield violates basic legal conceptions of international law such as national sovereignty.

Posted in al-Qaeda, Drone | 96 Comments

Tom Engelhardt writes at Tomdispatch.com

Consider Inauguration Day, more than two weeks gone and already part of our distant past.  In its wake, President Obama was hailed (or reviled) for his “liberal” second inaugural address.  On that day everything from his invocation of women’s rights (“Seneca Falls”), the civil rights movement (“Selma”), and the gay rights movement (“Stonewall”) to his wife’s new bangs and Beyoncé’s lip-syncing was fodder for the media extravaganza.  The president was even praised (or reviled) for what he took pains not to bring up: the budget deficit.  Was anything, in fact, not grist for the media mill, the hordes of talking heads, and the chattering classes?

One subject, at least, got remarkably little attention during the inaugural blitz and, when mentioned, certainly struck few as odd or worth dwelling on.  Yet nothing better caught our changing American world.  Washington, after all, was in a lockdown mode unmatched by any inauguration from another era — not even Lincoln’s second inaugural in the midst of the Civil War, or Franklin Roosevelt’s during World War II, or John F. Kennedy’s at the height of the Cold War.

Here’s how NBC Nightly News described some of the security arrangements as the day approached:

“[T]he airspace above Washington… [will be] a virtual no-fly zone for 30 miles in all directions from the U.S. capital.  Six miles of the Potomac and Anacostia Rivers will be shut down, with 150 blocks of downtown Washington closed to traffic, partly out of concern for car or truck bombs… with counter-snipers on top of buildings around the capital and along the parade route… [and] detectors monitoring the air for toxins… At the ready near the capital, thousands of doses of antidotes in case of a chemical or biological attack… All this security will cost about $120 million dollars for hundreds of federal agents, thousands of local police, and national guardsmen from 25 states.”

Consider just the money.  It’s common knowledge that, until the recent deal over the renewal of the George W. Bush tax cuts for all but the richest of Americans, taxes had not been raised since the read-my-lips-no-new-taxes era of his father.  That’s typical of the way we haven’t yet assimilated the new world we find ourselves in.  After all, shouldn’t that $120 million in taxpayer money spent on “safety” and “security” for a single event in Washington be considered part of an ongoing Osama bin Laden tax?

Maybe it’s time to face the facts: this isn’t your grandfather’s America. Once, prospective Americans landed in a New World.  This time around, a new world’s landed on us.

Making Fantasy Into Reality

Bin Laden, of course, is long dead, but his was the 9/11 spark that, in the hands of George W. Bush and his top officials, helped turn this country into a lockdown state and first set significant portions of the Greater Middle East aflame.  In that sense, bin Laden has been thriving in Washington ever since and no commando raid in Pakistan or elsewhere has a chance of doing him in.

Since the al-Qaeda leader was aware of the relative powerlessness of his organization and its hundreds or, in its heyday, perhaps thousands of active followers, his urge was to defeat the U.S. by provoking its leaders into treasury-draining wars in the Greater Middle East.  In his world, it was thought that such a set of involvements — and the “homeland” security down payments that went with them — could bleed the richest, most powerful nation on the planet dry.  In this, he and his associates, imitators, and wannabes were reasonably canny.  The bin Laden tax, including that $120 million for Inauguration Day, has proved heavy indeed.

In the meantime, he — and 9/11 as it entered the American psyche — helped facilitate the locking down of this society in ways that should unnerve us all.  The resulting United States of Fear has since engaged in two disastrous more-than-trillion dollar wars and a “Global War on Terror” that shows no sign of ending in our lifetime. (See Yemen, Pakistan, and Mali.)  It has also funded the supersized growth of a labyrinthine intelligence bureaucracy; that post-9/11 creation, the Department of Homeland Security; and, of course, the Pentagon and the U.S. military, including the special operations forces, an ever-expanding secret military elite cocooned within it.

Given the enemy at hand — not a giant empire, but scattered jihadis and minority insurgencies in distant lands — all of these institutions, which make up the post-9/11 National Security Complex, expanded in ways that would have boggled the minds of previous generations (as would that most un-American of all words, “homeland”).  All of this, in turn, happened in a poisonously paranoid atmosphere in Washington, and much of the rest of the country.

Keep reading Paranoia Strikes Deep: A Cowering America still Haunted by Bin Laden's Ghost (Engelhardt)

Posted in al-Qaeda, Drone, US politics | 19 Comments

Amy Goodman’s “Democracy Now!” reports on the leaked drone memo authorizing killing of American citizens abroad at the president’s order:

The blurb for the show:

“The Obama administration’s internal legal justification for assassinating U.S. citizens without charge has been revealed for the first time. In a secret Justice Department memo, the administration claims it has legal authority to assassinate U.S. citizens overseas even if there is no intelligence indicating they are engaged in an active plot to attack the United States. We’re joined by Jameel Jaffer, deputy legal director of the American Civil Liberties Union. “If you look at the memo … there’s no geographic line,” says Jaffer. “The Obama administration is making, in some ways, a greater claim of authority [than President Bush]. They’re arguing that the authority to kill American citizens has no geographic limit.” [includes rush transcript]

Guest: Jameel Jaffer, deputy legal director of the ACLU.

The Transcript of the interview is here.

Posted in Drone, US politics | 13 Comments