The American Bear

Sunshine/Lollipops

Comparing Presidential Elections: 2008 versus 2012 | Richard Falk

[…] As already indicated, I half expected disappointments in 2008. I worried about Obama’s typical liberal effort to demonstrate his tough approach to national security including support for a bloated defense budget in the face of a fiscal and employment crisis, about his lame effort to distinguish between Iraq as a bad war and Afghanistan as a war necessary for American security, and hence a good war. Also, I was disturbed by the way Obama dumped Rev. Jeremiah Wright when he became a liability to his electoral campaign, seemed embarrassed by his friendship with the distinguished Palestinian political historian, Rashid Khalidi, and made Rahm Emanuel chief of staff, as his first major appointment. Obama surrounded himself with economic advisors who were the same folks that had collaborated with the banks, hedge funds, and big brokerage houses in the 1990s to facilitate the huge regressive redistribution of wealth in the spirit of ‘casino capitalism.’ Unfortunately, these telltale signs of weakness of principle and ideology were an accurate foretaste of what was in store for the country during the next four years, although it apparently never dawned on the Nobel Peace Prize Committee to withhold its coveted award until Obama demonstrated that he was a deserving recipient, which sadly he never did.

What happened during the first term of the Obama presidency is definitely disappointing, although it is only fair to acknowledge that extenuating circumstances existed. Obama was dealt ‘a bad hand’ in the form of the worst economic crisis since the Great Depression of the 1930s. American society was sliding to the right as exhibited by the rise of the Tea Party, and the election of increasingly reactionary politicians as senators and congressmen, creating the most rightwing Congress in memory. It was difficult to govern in such a setting, and Obama compounded the difficulties by moving more than half way to meet the unreasonable demands of the opposition, and continued to do so even in the face of their clear unwillingness to reciprocate in a corresponding manner. Also, the pressures mounted by Israel and its formidable AIPAC lobby led the White House to back pedal awkwardly with respect to its efforts to create an atmosphere conducive to a balanced peace process for Israel and Palestine. On other issues, as well, Obama followed the pollsters and the party insiders more than principle, and failed to do what was best for the country and the world. After promising to take climate change seriously, Obama led an international effort to avoid imposing legal constraints on carbon emissions, and throughout his reelection campaign in 2012 has done his best to avoid the looming challenge of global warming aside from blandly promoting energy independence and green technology. As a result, the near unanimous scientific consensus on the urgent need for mandatory strict limits on carbon emissions has been disastrously pushed further and further into the background of public consciousness. [++]

Richard, like many left intellectuals, by the end succumbs to lesser-evilism, unfortunately. This is still an interesting read, but this is getting nauseating. Every piece follows the same pattern - laundry list that includes items that would disqualify any candidate from left/progressive support followed by a cave based on the politics of fear. And, interestingly, Falk, always a thorough and engaging intellectual, avoids targeted assassination and indefinite detention, something he’s written powerfully and eloquently about in the past [see A Meditation on Reciprocity and Self-Defense in Relation to Targeted Killing by Richard Falk].

As for me, I’m still with Arthur Silber on this one:

There is no evil beyond the claimed ‘right’ to murder by arbitrary edict, to murder anyone, anywhere, anytime. If you support this particular evil — and if you vote for Obama [or Romney], you support it — then you will support anything. … If you vote for Obama or Romney, do so proudly. I want you to say: “I vote for Obama/Romney proudly. I am proud to be a knowing accomplice to their murders, including the murders of innocent human beings.” Say that, and those of us who refuse to surrender our souls will know where you stand. This is not a complicated issue. It is stunningly straightforward.

Drone strikes: playing God in Pakistan | Editorial | The Guardian

From the very first days of his presidency, Mr Obama’s training as a lawyer was put to use not in abolishing the worst practices of the Bush era, but in giving himself the wriggle room to preserve and in some cases expand them. Thus the three major policies of the Bush war on terror – rendition, military commissions and indefinite detention – continue to this day. But Mr Obama has also presided over a massive expansion of secret surveillance of American citizens by the National Security Agency. There is a ferocious crackdown on whistleblowers. He has made more government documents classified than any previous president. And he has become a true believer in drones.

There are at least two concerns about the gathering pace of drone strikes, Mr Obama’s weapon of choice against militants sheltering in remote parts of the world – Waziristan, Yemen, or Somalia. The first is that at a crucial juncture of an election campaign – when a clear Republican opponent has emerged from the swamp of the party’s selection process – this administration is highlighting the fact that its president is a killer. In this new age of secrecy, three dozen current and former advisers are allowed to talk to the New York Times about the president’s role of personally overseeing the shadow war with al-Qaida. Mr Obama has not been shy about the role he personally played in Osama bin Laden’s death. His counter-terrorism adviser John Brennan makes speeches defending drone strikes as legal, ethical and wise. This administration is not on the defensive about its summary executions. It positively seeks to advertise them.

The second is that words are swiftly followed by actions. Drone strikes, which were in abeyance before the failure of Nato’s Chicago summit to break the deadlock with Pakistan over reopening military supply lines to Afghanistan, have returned with a vengeance – three attacks in as many days, and 29 people dead. Are they justified if, as the US claimed on Tuesday, al-Qaida’s second in command, Abu Yahya al-Libi, is among the victims? Or do inhabitants of North Waziristan have a point when they say the strikes are pulling their province apart. Many people have moved to escape the drones, and anyone who stays lives in terror of being killed. Indeed being a male of fighting age has become a posthumous criterion for being regarded as a terrorist. All this poses questions for a pragmatist like Mr Obama. When and where does this stop? Libi will be surely be replaced. Or have drones become a permanent feature of US power?

The Assassination Czar’s War Crimes Dodge: Revisiting John Brennan’s Targeted Killing Speech | emptywheel

Now that John Brennan is in charge of selecting which patterns of behavior we should target with drones, it ought to be easy to charge him with war crimes. The at least eight civilians we killed in Jaar a number of weeks after Brennan seized control of targeting? John Brennan killed them, presumably based not on intelligence about who they were and what ties to AQAP they had, but because they ran out of a house after an earlier strike.

John Brennan is choosing to target people in Yemen without making adequate efforts to avoid civilian casualties. Given that we know he’s making these choices, you’d expect someone to try to hold him accountable.

Of course, such an effort would present all kinds of difficulties. You can’t really make a legal case against Brennan based on anonymous sources in an AP story. Furthermore, moving the drone program into the National Security Council makes it inaccessible to FOIA and, probably, to full Congressional oversight.

Most of all, though, Brennan appears to be preemptively crafting his defense.

[…]

John Brennan has always lied publicly about the drone program, particularly the civilian deaths associated with it. But knowing what has transpired in the last month–the Saudi sting presenting a threat, followed by the decision to use signature strikes overseen by John Brennan–it seems like something far more cynical: a pre-emptive statement of his purported understanding about the drone program, just in case anyone ever tries to hold him accountable for strikes that don’t show the appropriate concern for civilian life.

“Oh, those 8 civilians I killed in Jaar?” John Brennan effectively said 15 days before he killed them, “I didn’t intend to or know I was killing civilians. I was conducting strikes against known targets found to present a direct threat to the United States.”

Read on

Drone Attacks and the Brennan Doctrine | Naureen Shah

"In remarks on Monday, US counter-terrorism adviser John Brennan admitted for the first time that US drones have killed civilians. 'It is exceedingly rare, but it has happened,' he said." - That’s rich, John.

“Terrorists”, whom the Obama administration may go after with lethal force, are not just people linked to the 11 September 2001 attacks, or active members of al-Qaida. According to [US counter-terrorism adviser John] Brennan, most of them are already dead:

“Al-Qaida has been left with just a handful of capable leaders and operatives.”

Yet there are, according to Brennan, thousands of individuals the US can lawfully target in drone strikes. Under the hugely expansive definition he described Monday, the US can kill individuals across the globe. Brennan named potential targets not just in Pakistan and Yemen, but in Somalia, Nigeria and west Africa. The Obama “war on terror” may include groups like al-Qaida in the Islamic Maghreb, which Brennan described as attempting to “destabilize regional governments”, and Boko Haram, a group that “appears to be aligning itself” with al-Qaida and is “increasingly looking to attack western interests in Nigeria”. Moreover, the US can kill not just leaders and operatives, but individuals who “possess unique operational skills that are being leveraged in a planned attack”.

The trouble with this definition of whom the US may target is not just its breadth, but its distance from any conventional interpretation of the laws of war. The rules on who can be targeted are complex and highly contested, especially in this context. But every formulation starts from the presumption that individuals who are not members of the armed forces are entitled to protection against intentional attack. As presumptive civilians, they can only be targeted for so long as they directly participate in hostilities, or, according to the international committee of the Red Cross, as members of an organized armed group with a “continuous combatant function”.

Perhaps the Obama administration sees these rules as unworkable. Maybe it has chosen to sidestep ongoing debates within the legal community and newly interpret the rules according to the larger object and purpose of humanitarian law.

But Brennan pretended otherwise. He equated his broad definition of whom the US can kill to the targeting of “enemy leaders” in the second world war. These wars are plainly not the same. The US shooting, for example, of Japanese General Yamamoto – the military architect of Pearl Harbor – is on a different legal and moral plane than the intentional killing of a civilian with “unique operational skills” employed in an “affiliate” attack against “regional governments”.

Rhetorical leaps like Brennan’s breed skepticism and doubt. The definition of who may be killed is not just about a rigorously reviewed kill list, but about whom the US can kill in “signature strikes” – individuals whose identities are unknown, who are targeted because they match intelligence-provided “signatures” – like “a tall man driving a blue car”. The leading role of the CIA, an agency designed to operate in secret and without public accountability, adds worry. Yet Brennan did not mention the agency once in his lengthy remarks.

Read the whole piece

[Bradley Manning] saw very clearly what so many professors and generals take pains to deny: that the primary function of the laws of war is not to restrain violence, but to justify it, often with the greatest lawyerly ingenuity. Chase Madar

Part of the problem is that the laws of war that aspire to restrain deadly force are often weakly enforced and routinely violated. Ethan McCord, the American soldier who saved the two wounded children from that van in the helicopter video, remembers one set of instructions he received from his battalion commander: “Anytime your convoy gets hit by an IED, I want 360 degree rotational fire. You kill every [expletive] in the street!” (“That order,” David Glazier, a jurist at the National Institute for Military Justice, told me, “is absolutely a war crime.”) In other words, the rules of engagement that are supposed to constrain occupying troops in places like Afghanistan and Iraq are, according to many scholars and investigators, often belittled and ignored. Chase Madar | Legal Atrocities

What the Laws of War Allow | Chase Madar

“I mean, we’re better in some respects… we’re much more subtle… use a lot more words and legal techniques to legitimize everything…but just because something is more subtle, doesn’t make it right.” - from Bradley Manning’s chat logs with Adrian Lamo (the shitbird that turned in Manning).

The relative weakness of the laws of war when it comes to preventing atrocities is not simply some recent debasement perpetrated by neoconservative Visigoths.  Privileging the combatant and his (it’s usually “his”) prerogatives has been the historical bone marrow of those laws.  In the Vietnam War, for instance, the declaration of significant parts of the South Vietnamese countryside as “free-fire zones,” and the “carpet bombing” of rural areas by B-52s carrying massive payloads were also done under cover of the laws of war.

IHL [International Humanitarian Law] has certainly changed in some respects.  A century ago, the discourse around the laws of war was far more candid than today.  Jurists once regularly referred to “non-uniformed unprivileged combatants” simply as “savages” and the consensus view in mainstream scholarly journals of international law was that a modern army could do whatever it wanted to such obstreperous, lawless people (especially, of course, in what was still then the colonial world).  On the whole, the history of IHL is a long record of codifying the privileges of the powerful against lesser threats like civilians and colonial subjects resisting invasion.

Even though the laws of war have usually been one more weapon of the strong against the weak, a great deal of their particular brand of legalism has seeped into antiwar discourse. One of the key talking points for many arguing against the invasion of Iraq was that it was illegal — and that was certainly true.  But was the failure to procure a permission slip from the United Nations really the main problem with this calamitous act of violence?  Would U.N. authorization really have redeemed any of it?  There is also a growing faith that war can be domesticated under a relatively new rubric, “humanitarian intervention,” which purports to apply military violence in precise and therapeutic dosages, all strictly governed by international humanitarian law.

Here is where the WikiLeaks disclosures were so revealing.  They remind us, once again, that the humanitarian dream of “clean warfare” — military violence that is smoothly regulated by laws that spare civilians — is usually a sick joke.  We need to wean ourselves from the false comfort that the law is always on the side of civilians.  We need to scrap our tendency to assume that international law is inherently virtuous, and that anything that shocks our conscience — that helicopter video or widespread torture in Iraq under the noses of U.S. soldiers — must be a violation of this system, rather than its logical and predictable consequence.

Let’s be clear: what killed the civilians walking the streets of Baghdad that day in 2007 was not “war crimes,” but war. [++]

'International humanitarian law,' or IHL, is the trying-too-hard euphemism for the laws of war. And as it happens, IHL turns out to be less concerned with restraining military violence than licensing it. As applied to America’s recent wars, this body of law turns out to be wonderfully accommodating when it comes to the prerogatives of an occupying army. Chase Madar | Legal Atrocities

I see legality as somewhat beside the point in today’s America. It seems to me that the national security complex has entered—without the rest of us—a post-legal America. We know this from the President’s unwillingness, for instance, to prosecute anyone from the Bush years for acts of torture, and from the fact that no act—with the single exception of whistleblowing (i.e. letting the American people know what their government is doing)—has landed anyone in that world in a court of law. As far as I can see, under Bush and Obama, the national security state is no longer accountable to American justice; so, “is it legal?” is a question that’s increasingly beside the point and out of date, which tells you the world about us in 2012. Tom Engelhardt: Drone Warfare and the United States of Fear

Read: State Department's Secret '06 Warning Against Torture | Spencer Ackerman

[Newly] obtained documents reveal that State Department counselor Philip Zelikow told the Bush team in 2006 that using the controversial interrogation techniques were “prohibited” under U.S. law — “even if there is a compelling state interest asserted to justify them.”

Zelikow argued that the Geneva conventions applied to al-Qaida — a position neither the Justice Department nor the White House shared at the time. That made waterboarding and the like a violation of the War Crimes statute and a “felony,” Zelikow tells Danger Room. Asked explicitly if he believed the use of those interrogation techniques were a war crime, Zelikow replied, “Yes.” […]

Zelikow wrote that a law passed that [in 2006] by Congress, restricting interrogation techniques, meant the “situation has now changed.” Both legally and as a matter of policy, he advised, administration officials were endangering both CIA interrogators and the reputation of the United States by engaging in extreme interrogations — even those that stop short of torture.

“We are unaware of any precedent in World War II, the Korean War, the Vietnam War, or any subsequent conflict for authorized, systematic interrogation practices similar to those in question here,” Zelikow wrote, “even where the prisoners were presumed to be unlawful combatants.”

Other “advanced governments that face potentially catastrophic terrorist dangers” have “abandoned several of the techniques in question here,” Zelikow’s memo writes. The State Department blacked out a section of text that apparently listed those governments.

“Coercive” interrogation methods “least likely to be sustained” by judges were “the waterboard, walling, dousing, stress positions, and cramped confinement,” Zelikow advised, “especially [when] viewed cumulatively.” (Most CIA torture regimens made use of multiple torture techniques.) “Those most likely to be sustained are the basic detention conditions and, in context, the corrective techniques, such as slaps.”

Zelikow’s warnings about the legal dangers of torture went unheeded — not just by the Bush administration, which ignored them, but, ironically, by the Obama administration, which effectively refuted them. In June, the Justice Department concluded an extensive inquiry into CIA torture by dropping potential charges against agency interrogators in 99 out of 101 cases of detainee abuse. That inquiry did not examine criminal complicity for senior Bush administration officials who designed the torture regimen and ordered agency interrogators to implement it.

“I don’t know why Mr. Durham came to the conclusions he did,” Zelikow says, referring to the Justice Department special prosecutor for the CIA torture inquiry, John Durham. “I’m not impugning them, I just literally don’t know why, because he never published any details about either the factual analysis or legal analysis that led to those conclusions.”

Afghanistan and the myth of public opinion

On Britain’s (much more) sour mood towards the Afghanistan war, and their own issues with “lawfare”:

Last week’s massacre of 16 Afghan civilians in Panjwai by an American serviceman, and the death of six British soldiers in Afghanistan the previous week, have focused attention on the support, or lack of it, among the public for Britain’s continued military presence in the country. A YouGov survey, for example, found that the proportion calling for withdrawal of British troops either “immediately” or “soon” rose to 78 per cent after the British deaths, and 79 per cent following the civilian killings. Parallels have been drawn between the Panjwai murders and the My Lai massacre of 16 March 1968 (“one of those seminal incidents that changed public perception of the Vietnam War”).

One could be forgiven for thinking that the latest, well-publicised, outrages might indeed prove something of a tipping point, and that the opposition of a war-weary public might influence policy makers. It is over a decade since British forces joined the US-led attack on Afghanistan; the death of the six soldiers brought the British tally of war dead to 400; it is six years since Democratic Audit launched a campaign, in the shadow of the illegal invasion of Iraq, against Britain’s unaccountable system for war policy; and a year ago this week, the Foreign Secretary, William Hague, said: “We will enshrine in law for the future the necessity of consulting Parliament on military action”[1].

Yet we did not need to wait for the ritual confirmation by David Cameron and Ed Miliband that “the mission” in Afghanistan would continue regardless, to know that the British Prime Minister remains almost uniquely insulated from shifts in public opinion towards war. On the contrary, democratic accountability for the decision to deploy British troops remains both formally engineered out of the British constitution, and kept that way by a combination of cultural and political factors.

Continue reading →

Lawfare and Targeted Killing Revisited--A Response | Lisa Hajjar

The speech that Attorney General Eric Holder delivered on 5 March 2012 in which he outlined the Obama administration’s position on the legality of the targeted killing program exemplifies what I have described as “state lawfare.” One aspect of state lawfare, I argue, is the effort by officials “to frame otherwise clearly illegal practices as legal by contending that the laws that would prohibit them are inapplicable.” Holder evinces a heightened degree of self-consciousness about what he is doing in this regard when he states: “Some have called such operations ‘assassinations.’ They are not, and the use of that loaded term is misplaced. Assassinations are unlawful killings…[T]he U.S. government’s use of lethal force in self defense against a leader of al Qaeda or an associated force who presents an imminent threat of violent attack would not be unlawful — and therefore would not violate the Executive Order banning assassination or criminal statutes.”

The relatively recent articulation of a distinction between “assassination” and “targeted killing,” [Leonard] Small argues, is legal and rhetorical rather than tactical, since both refer to “the lethal use of force in a surprise attack against an enemy or foe, whether by a sniper, a surgical-precision drone strike, or a magnetic bomb placed on a vehicle.” Like state lawfare-esque assertions by Bush administration officials and lawyers that interrogation tactics such as waterboarding are not torture (i.e., criminal offenses) if done for the worthy purpose of “keeping Americans safe,” Holder is now on the record arguing that extra-judicial executions are not assassinations (i.e., unlawful) if employed “to defend the United States through the appropriate and lawful use of lethal force.”

The concepts of “appropriate” and “lawful” are not nearly as seamless or complimentary as Holder would suggest. In fact, they raise two entirely different sets of issues, coming together only (and retrospectively) in the death-by-surprise of suspected enemies who are killed at times when they are not actively engaged in armed combat or any other form of active violence or aggression—that is, at times when they do not pose an imminent threat. Of course, it can be argued that “enemies” are dangerous even when they are off duty, lying in bed, drinking in a café, driving home, and so on. Carl Schmitt reminds us that in war, the “enemy” is he who poses an existential threat to the “friend.” Two years ago, I would not have pegged Holder—or Obama—as a Schmittian. But I digress.

Continue reading