The American Bear


Partial Readings: The Rule of Law | Dissent Magazine

[…] To the delight of his staunchest Republican opponents, Obama’s willingness to target forces “associated” with al Qaeda and the Taliban signals his full approval of the notion that “the battlefield is wherever the enemy chooses to make it.” If we add to this notion the definition of enemy combatants that his administration apparently endorsed last year—“all military age males in a strike zone”—the logic justifying drone attacks comes full circle: we kill them because they are our enemies, and they are our enemies because we kill them.

In the three-page “Presidential Policy Guidance” Obama signed in tandem with this week’s speech, a sole footnote purports to retract this definition of a combatant: “it is not the case,” the footnote ends, “that all military-aged males in the vicinity of a target are deemed to be combatants.” But the previous sentence, through a double negative, does include, in the definition of a combatant, “an individual who is targetable in the exercise of national self-defense.” Rather than reversing the chilling “military-aged males” definition of a combatant, Obama’s new “Policy Guidance” merely reinforces the same circular logic through a still vaguer formulation. Who, once targeted, cannot retrospectively be defined as “targetable”?

To round out this hollow—if not outright deceitful—gesture towards accountability in drone warfare, Wednesday’s “Presidential Policy Guidance” concludes by noting that “These new standards and procedures do not limit the President’s authority to take action in extraordinary circumstances when doing so is both lawful and necessary to protect the United States or its allies,” and that a select few members of Congress will be notified—not consulted—when the executive branch is planning to assassinate an enemy abroad. Is this really the bold new framework for accountability that the Obama administration “has worked vigorously” to produce?

The shamelessness of the endeavor is impressive—a far cry, in many ways, from the CIA’s secretive Cold War–era assassination plots. Obama has succeeded in anchoring a legal infrastructure for state-sponsored assassinations on foreign soil while trumpeting it, in broad daylight, as a framework for accountability. Peppered with allusions to the Constitution and to “the law” more generally, the call for transparency instead appears to provide an Orwellian foil for a remarkable expansion of executive powers.

Existing laws, domestic or international, are proving a hopelessly inadequate framework with which to hold the Obama administration accountable for arbitrary assassinations abroad. [++]

An Illegal Anniversary | Robert Jensen

On the 10th anniversary of the United States’ illegal invasion of Iraq, we can expect the war’s supporters to argue that military action seemed necessary at that moment, while critics will remind us of the suffering that resulted from that tragic miscalculation.

But amid the rationalizations and critiques, we should linger on this uncomfortable term: “illegal invasion.”

No matter how much we all ignore it, here is the reality: The US invasion of Iraq was unlawful. The leaders who planned and executed the war are criminals. US citizens bear some responsibility for not holding those leaders accountable.

The charter of the United Nations is clear about when the use of force in international relations is legal. War must be authorized by the UN Security Council, and in this case, the council rejected a resolution authorizing war. The only other condition under which a member state can go to war is in self-defense when attacked, a principle that is extended to the right to respond to an imminent attack, what is sometimes called “the customary right of anticipatory self-defense.”

The basic principles are uncontroversial and clearly articulated in articles 39 and 51 of the UN Charter, though there is debate among legal experts about interpreting terms such as “imminent” and “anticipatory.” But whatever one’s position in those debates, there is no way to stretch the facts of this invasion to justify a self-defense claim.

At this point, many people respond by dismissing international law as irrelevant. Because US policymakers’ first job is to protect Americans, they argue, our leaders shouldn’t be constrained by international law - the US Constitution trumps international law or treaties.

But a small problem arises: Article VI of the Constitution states that “all Treaties made, or which shall be made, under the Authority of the United States” are part of “the supreme Law of the Land.” Since the United States signed the UN Charter (and, in fact, wrote most of it), to reject international law in this matter is to express contempt for the plain meaning of the US Constitution. No patriot would dare.

So, back to those uncomfortable conclusions: A decade ago, US leaders launched what under the principles of the Nuremberg Tribunal is called a “crime against peace.” Whether in the course of that crime, US forces also committed war crimes can be debated. For example, should the deliberate bombing of the civilian infrastructure of a country be considered a war crime? What about the use of cluster munitions in ways that predictably kill civilians? I believe both are criminal, but let’s put those more complicated issues aside. The illegality of the invasion itself is not a tough question.

In my travels outside the United States, I have found that the vast majority of people agree that the US invasion was unlawful. Within the United States, mentioning this worldwide consensus typically is considered idealistic and irrelevant. But while we can ignore evidence and logic, and even ignore the world, we can’t escape the implications of those choices.

The moral force of law, domestic or international, lies in the consistent application of clear standards. When laws are applied only to the poor, and the rich act with impunity, for example, we understand that as a perversion of the law.

Over and over in the United States, we proclaim our commitment to the rule of law - we are a nation of laws not men. If that were the case, we would turn over to the International Court of Justice high-ranking figures from the Bush administration, which initiated the war; from the Obama administration, which continued the war; from Congress, which enabled the war; and from the military, which prosecuted the war. We would determine the amount of reparations we owe Iraq and begin to make payments. And we would apologize to the Iraqi people and to the world.

Why is that unthinkable in our political culture? Perhaps it is because we worship power rather than respect law. Perhaps it is because we have no intention of acting on the moral principles we routinely impose on others.

Perhaps it is because we are not the people we tell ourselves we are.

International law isn't 'real' | Nanjala Nyabola

It’s one of the most common refrains you hear, especially in an American law school, as to why the US has no reason to abide by or participate in international conventions or nascent legal institutions like the international criminal court. The unspoken philosophical implications are: that there is such a thing as “real” law, and that domestic law has somehow achieved that gold standard.

After almost two years of grasping the essence of this “realness”, swimming upstream against the glib acceptance that Law is, I find myself concluding that there is no such thing as “real” law. Domestic law is no more real than international law and if we allow one the empty comfort of ascribed “realness”, we should be able to extend this comfort to the other.

“Real” law is the necessary fiction that consequences must flow from the actions of one against each other, and that the Law as defined by those in power or with money, determines both the infarction and its consequences; yet another tool that those in power have to employ against the powerless.

They are able to do this, because even at the most prestigious centres for legal learning and thought, few grapple the meta-question that underpins the entire exercise: namely, what is law? [continue]

Why Palestine Should Take Israel to Court in The Hague | NYT

LAST week, the Palestinian foreign minister, Riad Malki, declared that if Israel persisted in its plans to build settlements in the currently vacant area known as E-1, which lies between Palestinian East Jerusalem and the Israeli settlement of Maale Adumim, “we will be going to the I.C.C.,” referring to the International Criminal Court. “We have no choice,” he added.

The Palestinians’ first attempt to join the I.C.C. was thwarted last April when the court’s chief prosecutor at the time, Luis Moreno-Ocampo, declined the request on the grounds that Palestine was not a state. That ambiguity has since diminished with the United Nations’ conferral of nonmember state status on Palestine in November. Israel’s frantic opposition to the elevation of Palestine’s status at the United Nations was motivated precisely by the fear that it would soon lead to I.C.C. jurisdiction over Palestinian claims of war crimes.

Israeli leaders are unnerved for good reason. The I.C.C. could prosecute major international crimes committed on Palestinian soil anytime after the court’s founding on July 1, 2002.

Since the outbreak of the second Palestinian intifada in 2000, the Israel Defense Forces, guided by its military lawyers, have attempted to remake the laws of war by consciously violating them and then creating new legal concepts to provide juridical cover for their misdeeds. For example, in 2002, an Israeli F-16 dropped a one-ton bomb on an apartment building in a densely populated Gaza neighborhood, killing a Hamas military leader, Salah Shehadeh, and 14 others, including his wife and seven children under the age of 15. In 2009, Israeli artillery killed more than 20 members of the Samouni family, who had sought shelter in a structure in the Zeitoun district of Gaza City at the bidding of Israeli soldiers. Last year, Israeli missiles killed two Palestinian cameramen working for Al Aksa television. Each of these acts, and many more, could lead to I.C.C. investigations.

The former head of the Israeli military’s international law division, Daniel Reisner, asserted in 2009: “International law progresses through violations. We invented the targeted assassination thesis and we had to push it. At first there were protrusions that made it hard to insert easily into the legal molds. Eight years later it is in the center of the bounds of legitimacy.”

Colonel Reisner is right that customary international law is formed by the actual practice of states that other states accept as lawful. But targeted assassinations are not widely accepted as legal. Nor are Israel’s other attempted legal innovations. [continue]

[Chief Prosecutor of the military commissions system Mark S. Martins] has engaged in an increasingly public dispute with the administration centered on an uncomfortable question he is refusing to drop: is it valid for the United States to use tribunals to charge idiosyncratic American offenses like ‘conspiracy,’ even though they are not recognized as war crimes under international law? Who Decides the Laws of War?

Court overturns another Guantanamo conviction

"The only basis on which the United States relied was their fanciful notion of U.S. common law of war, something which doesn’t actually exist." — Bryan Broyles, deputy chief defense counsel for the Guantanamo tribunals

A U.S. appeals court on Friday overturned the Guantanamo war crimes conviction of an al Qaeda videographer, a ruling likely to lead to dismissal of conspiracy charges in the pending trial of five men accused of plotting the September 11 attacks.

The U.S. Court of Appeals for the District of Columbia threw out the conviction of Yemeni prisoner Ali Hamza al Bahlul, ruling that the charges of which he was convicted - conspiracy, providing material support for terrorism and soliciting murder - were not internationally recognized as war crimes when the acts were committed.

Bahlul is serving a life sentence in the detention center at the Guantanamo Bay U.S. Naval Base in Cuba.

… The same appeals court threw out the conspiracy conviction of one of bin Laden’s drivers, former Guantanamo prisoner Salim Hamdan, in October, on similar grounds.

… Defense lawyers have long argued that conspiracy and providing material support for terrorism were not internationally recognized as war crimes before the 2001 attacks.

Congress made them war crimes under a law that was passed in 2006 and revised in 2009, but the courts have ruled the law cannot be applied retroactively.

The other charge against Bahlul, soliciting murder, was based on a violent video he made encouraging attacks on U.S. targets. The legal precedent for that charge arose from a U.S. Civil War case that involved only U.S. citizens.

That charge also had no precedent in the international laws of war, said Bryan Broyles, deputy chief defense counsel for the Guantanamo tribunals.

… James Connell, a defense lawyer for September 11 defendant Ali Abdul-Aziz Ali, said the ruling highlighted the lack of neutrality in the Guantanamo court system, where the same Pentagon appointee, known as the convening authority, decides what charges will go to trial, what the maximum penalty will be and who will make up the jury pool.

“Every time we can get in front of a court with no vested interest, we win,” Broyles said.

American Militarism Threatening To Set Off World War III | Francis A. Boyle

According to basic principles of international criminal law set forth in paragraph 501 of U.S. Army Field Manual 27-10, all high level civilian officials and military officers in the U.S. government who either knew or should have known that soldiers or civilians under their control (such as the C.I.A. or mercenary contractors), committed or were about to commit international crimes and failed to take the measures necessary to stop them, or to punish them, or both, are likewise personally responsible for the commission of international crimes. This category of officialdom who actually knew or should have known of the commission of these international crimes under their jurisdiction and failed to do anything about them include at the very top of America’s criminal chain-of-command the President, the Vice-President, the U.S. Secretary of Defense, Secretary of State, Director of National Intelligence, the C.I.A. Director, National Security Advisor and the Pentagon’s Joint Chiefs of Staff along with the appropriate Regional Commanders-in-Chiefs, especially for U.S. Central Command (CENTCOM).

These U.S. government officials and their immediate subordinates are responsible for the commission of crimes against peace, crimes against humanity, and war crimes as specified by the Nuremberg Charter, Judgment, and Principles as well as by U.S. Army Field Manual 27-10 of 1956. Today in international legal terms, the United States government itself should now be viewed as constituting an ongoing criminal conspiracy under international criminal law in violation of the Nuremberg Charter, the Nuremberg Judgment, and the Nuremberg Principles, because of its formulation and undertaking of serial wars of aggression, crimes against peace, crimes against humanity, and war crimes that are legally akin to those perpetrated by the former Nazi regime in Germany. As a consequence, American citizens possess the basic right under international law and the United States domestic law, including the U.S. Constitution, to engage in acts of civil resistance designed to prevent, impede, thwart, or terminate ongoing criminal activities perpetrated by U.S. government officials in their conduct of foreign affairs policies and military operations purported to relate to defense and counter-terrorism.

For that very reason, large numbers of American citizens have decided to act on their own cognizance by means of civil resistance in order to demand that the U.S. government adhere to basic principles of international law, of U.S. domestic law, and of the U.S. Constitution in its conduct of foreign affairs and military operations. Mistakenly, however, such actions have been defined to constitute classic instances of “civil disobedience” as historically practiced in the United States. And the conventional status quo admonition by the U.S. power elite and its sycophantic news media for those who knowingly engage in “civil disobedience” has always been that they must meekly accept their punishment for having performed a prima facie breach of the positive laws as a demonstration of their good faith and moral commitment. Nothing could be further from the truth! Today’s civil resisters are the sheriffs! The U.S. government officials are the outlaws!

U.S.-U.K. Genocide Against Iraq 1990-2012 Killed 3.3 Millions | Sherwood Ross

Approximately 3.3 million Iraqis, including 750,000 children, were “exterminated” by economic sanctions and/or illegal wars conducted by the U.S. and Great Britain between 1990 and 2012, an eminent international legal authority says.

The slaughter fits the classic definition of Genocide Convention Article II of, “Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part,” says Francis Boyle, professor of international law at the University of Illinois, Champaign, and who in 1991 filed a class-action complaint with the UN against President George H.W. Bush.

The U.S. and U.K. “obstinately insisted” that their sanctions remain in place until after the “illegal” Gulf War II aggression perpetrated by President George W. Bush and UK’s Tony Blair in March, 2003, “not with a view to easing the over decade-long suffering of the Iraqi people and children” but “to better facilitate the U.S./U.K. unsupervised looting and plundering of the Iraqi economy and oil fields in violation of the international laws of war as well as to the grave detriment of the Iraqi people,” Boyle said.

In an address last Nov. 22 to The International Conference on War-affected Children in Kuala Lumpur, Malaysia, Boyle tallied the death toll on Iraq by U.S.-U.K. actions as follows:

# The slaughter of 200,000 Iraqis by President Bush in his illegal 1991 Gulf War I.

# The deaths of 1.4 million Iraqis as a result of the illegal 2003 war of aggression ordered by President Bush Jr. and Prime Minister Blair.

# The deaths of 1.7 million Iraqis “as a direct result” of the genocidal sanctions.

Boyle’s class-action complaint demanded an end to all economic sanctions against Iraq; criminal proceedings for genocide against President George H.W. Bush; monetary compensation to the children of Iraq and their families for deaths, physical and mental injury; and for  shipping massive humanitarian relief supplies to that country.

The “grossly hypocritical” UN refused to terminate the sanctions, Boyle pointed out, even though its own Food and Agricultural Organization’s Report estimated that by 1995 the sanctions had killed 560,000 Iraqi children during the previous five years.

Boyle noted that then U.S. Secretary of State Madeline Albright was interviewed on CBS-TV on May 12, 1996, in response to a question by Leslie Stahl if the price of half a million dead children was worth it, and replied, “we (the U.S. government) think the price is worth it.”

Albright’s shocking response provides “proof positive of the genocidal intent by the U.S. government against Iraq” under the Genocide Convention, Boyle said, adding that the government of Iraq today could still bring legal action against the U.S. and the U.K. in the International Court of Justice. He said the U.S.-U.K. genocide also violated the municipal legal systems of all civilized nations in the world; the 1989 Convention on the Rights of the Child; and the Fourth Geneva Convention of 1949 and its Additional Protocol 1 of 1977. [++]

Nato forces 'attack Afghan health clinic' |

Winning hearts and minds, one war crime at a time:

Nato forces stormed into a clinic in central Afghanistan, damaging doors, windows and medical equipment, before using it as a jail and military command centre, in violation of the Geneva Convention, according to the aid group that runs the facility.

Nato and Afghan troops were dropped off by helicopters late one October evening and headed straight to the clinic, according to the Swedish Committee for Afghanistan, which has published details of the assault on their small centre in Wardak province, a few dozen miles south-west of Kabul.

The soldiers knocked down a wall to enter the building, damaged doors, windows, examination beds and other equipment, and detained clinical staff and civilians inside. And for the next two and a half days they brought dozens, maybe hundreds of prisoners through the clinic, using it as a jail, logistics hub and for mortar fire, contravening the Geneva Convention, which protects medical centres.

“The protection of medical persons and facilities, and respect for their neutrality was one of the founding principles of international humanitarian law,” said Erica Gaston, a human rights lawyer and senior programme officer at the US Institute of Peace.

“This latest incident is a serious violation … If true, it’s incredible to me that they not only raided this clinic but that [Nato] command allowed them to continue occupying it for days afterwards.”

The takeover of the clinic was the worst assault on the Swedish Committee’s medical services since a bitter civil war over a decade ago, said the group’s country director, Andreas Stefansson.

“I can’t recall when we have had a clear cut occupation of a clinic for several days. We’d have to go back to the 1990s where you’d have warring groups that would kick out the medical staff and take over the whole building,” he told the Guardian in Kabul.

Afghanistan is in desperate need of help to improve healthcare for its 30 million people. It is one of just three countries where polio is still endemic, one in five children die before their fifth birthday, and in southern provinces acute malnutrition among infants is near the levels expected in a famine zone.

But Stefansson said aid groups working on health issues felt their work was being seriously undermined because of regular abuse of their buildings and staff by government forces and troops from the Nato-led International Security Assistance Force (ISAF). The Swedish Committee has decades of experience in Afghanistan.

Have U.S. Drones Become a ‘Counterinsurgency Air Force’ for Our Allies? | ProPublica

Justin Elliott: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?

Micah Zenko: 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.

Continue reading

"Under the Bush administration, about 30 percent of those killed could be considered militant leaders. Under Obama, that figure is only 13 percent", but, you know, the other 87% were “probably up to no good”, right? Whatever helps you sleep, sociopaths.

Obama 'drone-warfare rulebook' condemned by human rights groups |

… Human-rights groups and peace groups opposed to the CIA-operated targeted-killing programme, which remains officially classified, said the administration had already rejected international law in pursuing its drone operations.

“To say they are rewriting the rulebook implies that there is already a rulebook” said Jameel Jaffer, the director of the American Civil Liberties Union’s Center for Democracy. “But what they are already doing is rejecting a rulebook – of international law – that has been in place since [the second world war].”

He said the news was “frustrating”, because it relied on “self-serving sources”. The New York Times piece was written by one of the journalists who first exposed the existence of a White House “kill list”, in May.

ACLU is currently involved in a legal battle with the US government over the legal memo underlying the controversial targeted killing programme, the basis for drone strikes that have killed American citizens and the process by which individuals are placed on the kill list.

Jaffer said it was impossible to make a judgement about whether the “rulebook” being discussed, according to the Times, was legal or illegal.

“It is frustrating how we are reliant on self-serving leaks” said Jaffer. “We are left with interpreting shadows cast on the wall. The terms that are being used by these officials are undefined, malleable and without definition. It is impossible to know whether they are talking about something lawful or unlawful. [++]

If we cannot or will not investigate any and all alleged law breakers because of their place in the government or because of their political persuasion, why do we have laws outlawing torture at all? What will stop current and future bad actors from engaging in torture if the former President and Vice President of the United State allowed it and encouraged it and stand impervious to prosecution? How do we prevent a political civil war if any administration tries to enforce the law against torture against its predecessors?

Lawrence E. Rafferty, Who Will Enforce the Laws Against Torture?

Rafferty poses this question at the end of the piece:

The rule of law stands tarnished, if not damaged, by the Obama Administration’s refusal to enforce the laws against torture.  Will President Obama’s stance on enforcing the illegal torture program “evolve” now that he has survived the reelection?  What do you think?

What I think is that “look forward” is still the order of the day. Besides, for Barack Obama to pursue legal action against Bush or others in the former administration for torture or other war crimes is to open himself and his own administration up to future prosecution for similar crimes or worse (think “kill list”, “disposition matrix”, indefinite detention at Gitmo, assassination of American citizens, “double-tap” drone strikes on rescuers, etc.)

"Look forward" was a gift to the Bush admin - a gesture which I assume the Obama administration would like to see reciprocated.