Saturday, May 29, 2010

The slow death of law, part 2

      This post continues the previous one here.  It focuses on three articles.  The first, a post by Scott Horton, on “the Khadr Boomerang” makes intelligent legal points about this case – argued over even within the administration – and the American use of drones to murder civilians.  Khadr is accused of violating international law in killing a soldier.  As Horton points out, if he threw the grenade that killed Sergeant Schiff, he can be charged with murder. But the charge has to proceed under domestic law where the crime occurred.  The boomerang which worries lawyers in the government, is that “civilian” contractors often fire off the drone missiles (even the CIA has been “privatized,” Erik Prince, head of Blackwater/Xe can do what he wants, see here so long as he “keeps the secrets"). The privatization of the military/intelligence complex has also undermined  any probity in the CIA – there are CIA people like Ray McGovern, former Presidential daily briefer for 27 years, and now leader of Veteran Intelligence Professionals for Sanity who incarnates this, see here – which has been eaten from within by this parasite.  Neither CIA nor Xe men in Langley are “soldiers” in the act of war.  

      The launchers of these missiles will never  be tried in the United States (for the government practices “untruth, injustice and the Nazi way” as Saturday Night Live once satirized Superman – uebermensch – using his x-ray eyes to see that Jimmy Holstein was not circumcised, and flying him to Auschwitz on the way to “defeat” the Russians at the Battle of Stalingrad…).  But by the alleged principles the US is using in the Khadr case, they could be tried internationally. Khadr was 15 years old when the US troops captured and tortured him. That the US did not treat him as a minor (a not fully mature adult and thus not fully responsible for his actions) is a major indictment of American policy, even if one sets aside torture and indefinite detention.   Naturally, Secretary of Defense Robert Gates has chosen to be secretive about all this.  Law is a public matter and when one tortures and throws away children, one probably needs to do it in the dark…

      Horton’s column is brilliant legally, but insufficient on political context.  The US and Nato invaded Afghanistan, using proxy troops who were both partisan and criminal (General Dostum, whom Obama has supposedly allowed to be investigated, murdered some 4,000 prisoners, just to get the US invasion off to a flying start).  This 15 year old was fighting an invading army.  Horton might have said: perhaps the British should have tortured say, some 15 year old relative of George Washington.  All movements against invaders have less political strength (and ordinarily murderousness*) than aggressors.

      In contrast, the “civilian” contractors are mass murderers at a distance, using drones to take out innocents (82% on their account).  They do seem like major league criminals and with almost no justification.  3,000  innocents were murdered September 11th.  But that Pakistanis randomly taking food to or doing tasks near suspected Taliban or 100 Yemenis at a wedding party or many others should be murdered by drones has nothing to do with the ostensible cause.  Worse yet, the drip drip drip of these murders probably has an even worse affect morally and politically among Arabs toward the United States of America than the taking down of the World Trade Center does toward Arabs among Americans.  Think of anti-Arab racism here, and then putting yourself, in the Rawlsian original position, empathize with the relatives of those killed in Yemen.  Ask yourself about what you might feel about robotic, video screen killers from across the seas, whose face is but a missile…See imagine here.

       The fourth article from the New York Times May 27 by Charlie Savage (following Horton's post the day before; Horton, an influential international lawyer. often breaks stories which surface in the Times, even on its editorial page, shortly thereafter) underlines that Phillip Alston, UN Special Rapporteur, will shortly report against civilian murder by drones.  In this, he concurs with Howard Koh, the State Department lawyer.  If intelligence or Xe operatives fire the missiles, they are guilty of murder.  Their case would be comparable, Koh thinks, to that of Khadr.

     But Koh and Alston are wrong that soldiers firing the missiles would not commit murder.  It may perhaps, as Koh thinks, not be a legal problem. But it is certainly a moral and political problem.  No “soldier” takes a risk firing a drone from thousands of miles away.  Worse yet, at minimum, 82% of those taken out are murdered innocents.  And that would seem, even by the "refined" standards of the State Department, to be illegal.

        Savage, who had reported for the Boston Globe (owned by the Times) has written a good book Takeover: the Return of the Imperial Presidency and the Subversion of American Democracy.  It focuses on Cheney's centrality in advancing executive power at the expense of the other branches of government – Savage thinks this is very problematic.  He even speaks, for example at p. 317, of the restriction on news coverage about the military commissions and on what citizens learn from the press about tyranny and the rule of law.  This latest article, though it does not go far enough in exactly the way his book sometimes criticizes, is okay.

     But the fifth article, also by Savage, from the main right hand column on the front page of the New York Times a week ago Saturday, “An Appeals Panel Denies Detainees US court access,” is far more problematic.  Savage talks about three men, arrested far from the battlefield in Afghanistan, flown there and imprisoned in Bagram.  Note that the Bush/Obama claim – “Afghanistan is a central battlefield in a war” with an indefinite enemy, located anywhere, and unending - neglects the following relevant facts:  a) that America aggressed against, conquered and occupied (with NATO allies) this territory and it is not currently meaningfully independent, b) that to refer to the guerilla war there against the US as inhibiting its capacity to do justice to these men transported to Afghanistan from elsewhere is a farce (about equivalent to the Bush excuse that Guantanamo, seized as a colonial conquest in 1898 on the territory of Cuba, is “foreign territory” (“you know. my pinkie doesn’t belong to me and if I poke your eye out with it, it is not I who did it)”;  c) that the US seizes randomly and holds prisoners in Guantanamo  or Bagram in order to make their imprisonment supposedly “beyond the reach of law” (though the control strings were jerked from Rumsfeld and the “principals” and today Gates  in Washington), and d) the release of some 650 out of 700 prisoners from Guantanamo reveals, unsurprisingly given that US soldiers, foreign invaders, who cannot speak the language and have to rely on local informants, arrest, torture and hold indefinitely many innocents. The American military is like a large, mad bull, trampling random people.   

        Even the last 50 prisoners at Guantanamo are not  to be tried, because they have been tortured and there is no reliable  evidence against them (Obama promises that their cases will be reviewed occasionally; “it is not Devil’s Island” Obama might say.  But it is the nearest thing to it that any formerly law-governed regime has attempted.  As Kim Lane Schepple aptly put it for the Bush period, America is undergoing a transition from a parliamentary regime to a police state.  Obama is now furthering this process.  

       These individuals  are being thrown away because Obama is frightened one of them might engage in a terror attack for which he would be blamed.  By doing this, he probably ensures that some of their friends, relatives or compatriots will have  motivation to engage in such an attack. Rampant terror or tyranny works as long as you can scare people. Cheney was scary (every time he opens his mouth or Liz, it is like some malicious Wizard of Oz, out from behind the curtain: any decent person just shakes her head and wonders at the madness).

        Further, the US just doesn’t have that much reach.  It can’t scare that many people, that long (particularly with its losing occupations and economic collapse).  Obama’s new national security strategy will emphasize negotiation, working with others, and not occupation.  That is a good direction.  But rendition, illegality and torture, not to mention drone missiles, do not remotely walk that path.    

       In fact, being itself the enemy of liberty and law as well as  racist and foolish about who “the enemy” is makes America less secure and more likely to be the object of a terrorist attack; this in turn strengthens the war complex and the violation of the law at home; this in turn leads to expanding wars and increased  financial dependence on China even though America is broke, and creates even more danger for ordinary Americans: this is the frightening cycle of increasing American aggression abroad and tyranny at home.  See my Must Global Politics Constrain Democracy? and The Sorcerer's Apprentice here.  This cycle is very hard to break.   Once again, Obama campaigned to undercut both.  But he is baited constantly from the Right.

      For instance, in Savage’s article, Senator Lindsay Graham, a comparatively “moderate” Authoritarian, expresses this “thought” clearly:

    “Senator Lindsey Graham, Republican of South Carolina and an influential lawmaker in the long-running debate over detentions called the ruling a ‘big win’ and praised the administration for appealing the lower court’s ruling.”

        Obama launched the appeal and receives praise from the decadent Graham – the man who, with Senators McCain and Warner, was responsible for the anti-torture resolution in the Senate, a moment of standing up for decency against Bush - and then turns a blind eye to all the actual torture.  He did not say a word about Bush’s signing statement that the President would do what he wanted with regard to torture in order  to get  McCain – a shadow of a man - elected President.

    ‘’ Allowing a noncitizen enemy combatant detained in a combat zone access to American courts would have been a change of historic proportions,’ he said. ‘It also would have dealt a severe blow to our war effort.’”

       The words “enemy combatant” are an internationally  despised, Bush administration slogan to perfume American criminality.  Graham’s anti-torture statement appeared to be against this and for the rule of law and decency.  But now, law is out of sight, out of mind: 

     “’There is a reason we have never allowed enemy prisoners detained overseas in an active war zone to sue in federal court for their release.  It simply makes no sense and would be the ultimate act of turning the war into a crime.”

       The words “make no sense” are, psychologically, a projection.  Graham is a lawyer and a military lawyer, but he is also a shadow man (he affects principle; he has none).  The idea that America can throw away law, that it can breach international and domestic law, that it spits on the Constitution and so forth in a never ending “war”  needs – except in the publicity cycle of the war  complex – some justification, but Graham offers loud and empty words…

       Contrary to Obama the campaigner, Obama’s Presidency exacerbates aggressions and enhances illegality (secret, torture sites as the Red Cross has now underlined, at Bagram, indefinite detentions, renditions to Pakistan, and the like). 

     Listen to the war complex speak through  Savage, who knows better than this  as one can hear in his unexplained choice of words so that the ordinary reader will not be alerted to the deep issues involved here.  “Reporting” for the Times forbids any commentary on deep issues concerning the Bill of Rights, the rule of law and what America is at its best, though of course it is also a license to broadcast, as serious, ludicrous falsehoods, for example, that the US can take prisoners picked up randomly in distant places to Afghanistan – the field of American aggression and occupation – and because they are now indefinitely detained/tortured on the “field of battle” claim that it need not bring them before a court.  English is often an obscure – one might say foreign - language in New York Times “reporting.”

      “A federal appeals court ruled Friday that three men who had been detained by the US military for trial had no recourse to the American courts.  The decision was a broad victory for the Obama administration in its efforts to hold terrorism suspects overseas without judicial oversight.”

       No mention, here or later, of the principles of law at all.  No mention that “the victory for the Obama administration” was actually “the victory for the Bush-Cheney administration” which Obama and many others, including the author of the article, Charlie Savage, rightly criticized for its illegal and immoral practices.

     “The detainees two Yemenis and a Tunisian who say they were captured outside Afghanistan, contend that they are not terrorists and are being mistakenly imprisoned at the American military prison at Bagram Air Base.”

        Even for a New York Times’ reporter, the facts would seem to be an issue here.  If the US transferred these prisoners from elsewhere, their detention and torture could not be “justified” by a supposed claim of the dangerous field of battle.  Are not ace reporters, on the front page, right-hand column of the Times, supposed to verify pretty accessible facts? If there were counterevidence to their “claims,” surely Savage would cite it; later on in the article, he says only that “the government has disputed the second Yemeni’s claim.”[i]

    “The case was brought on behalf of a Tunisian man who says he was captured in Pakistan in 2002, a Yemeni man who says he was captured in Thailand in 2002, and another Yemeni man who says he was captured in 2003 at another location outside Afghanistan that has not been disclosed (the government has disputed the second Yemeni’s claim).”

         That two of these men were seized elsewhere and brought to Bagram for the purpose of indefinitely detaining/torturing them is not in dispute.    The Obama case – at that time, solicitor-general Elena Kagan’s case – is a travesty, based on lies.  It should have been laughed out of court.    That is why the “court” that decided this does not deserve to be called a court of law.

        Bush-Cheney and now Obama seek to render the battle field “everywhere,” making no one, who falls under police state suspicion, able to avail themselves of even a hearing or day in court, to raise the issue that they may be innocent.  Where is the majesty of the law in America that Presidents do this?

      There is hysteria about big government on the Right (when it does decent, common good-serving things like provide green jobs or health care). But the Right cheers for  the biggest and nearly  most repulsive element of the government – the military/intelligence apparatus.  Worse yet, it advances BIG GOVERNMENT in throwing away many ordinary people – the chief objection historically of decent people who believe in the rule of law. Fighting decent government on the one hand, these authoritarians also advance tyranny. 

       Thus, Senators Lieberman, Scott Brown and McCain recently introduced an even more extreme  police state measure into the Senate (the President can declare a citizen an “enemy combatant” and disappear her).  This “court” and these senators’ resolution incarnate what Jack Balkin calls a National Surveillance State.

     “But a three judge panel of the United States Court of Appeals for the District of Columbia ruled that the three had no right to habeas corpus hearings in which judges would review evidence against them and could order their release.  The Court reasoned that Bagram was on the sovereign territory of another government and emphasized the ‘pragmatic obstacles’ of giving hearings to detainees ‘in an active theater of war.’”

      Savage knows, but does not tell the reader, that habeas corpus is the central principle of Anglo-American law. This is no small thing that Obama is throwing away.

        In addition, the American occupation created the puppet Karzai government.  The claim about “sovereign territory” is a pretence.  That the three men are “judges” in a “court” is true in name only.  They are like Nazi judges or inquisitors or Stalin-era creatures.  In England and the lower court, there are judges.  Ironically, two of these three judges were appointed by Clinton and Carter.  Off the bench, one might suppose, they are Democrats.  But on the bench, their views on the law swing with power; as this decision  reveals, they have no fealty to law.

       In contrast, John Bates, a W. appointee, upheld the law:

       “The men’s case was originally heard by Judge John D. Bates of the Federal District Court, an appointee of former President George W. Bush. The Bush and Obama administrations had both urged Judge Bates not to extend habeas corpus rights beyond Guantanamo, arguing that courts should not interfere with military operations inside active combat zones [sic].”

      “But in April 2009, Judge Bates ruled that there was  no difference between the three men who had filed suit and Guantanamo prisoners.”

     The law was obvious, given the facts, and Judge Bates upheld it.

      “His decision was limited to non-Afghans captured outside Afghanistan – a category that fits only about a dozen of the roughly 800 detainees at Bagram, officials have said.”

     Given that American officials run secret prisons and have black torture sites, for instance at Bagram, even within those prisons, why should the word of American officials be presented in “reporting” as trustworthy?  Is the fourth estate today more than a fanciful stitcher of “the emperor’s new clothes”? 

     Savage uses the term “officials” to suggest what he thinks about it, but most readers would hardly draw the obvious conclusion from this - he said the moon is made of green cheese, she said: it isn’t, there is no fact of the matter - sort of “reporting.” According to “our” government, waterfalls flow upward to the sky, but of course “reporters” don’t have eyes…

     The detainees’ lawyers spoke plain English, however, and Savage is able to cite them:

      “In urging the appeals court to let Judge Bates’ decision stand, lawyers for the detainees argued that reversing it would mean that the government would be able ‘to evade judicial review of executive detention decisions by transferring detainees into active combat zones, thereby granting the executive the power to switch the Constitution on or off at will.”

       Whether the tyrant can break the law is now, in America, so these “judges” say, at the authority of the tyrant.  He can “switch the Constitution…off at will.”

     The argument of Chief Judge Sentelle is memorable in its disdain for the rule of law:

      “But in the appeal panel’s decision reversing Judge Bates, Chief Judge David B. Sentelle said there had been no such gamesmanship” –note Savage’s odd use of a highly loaded term without even a pretence of citation (who is editing these articles on the front page?).  It was plainly what Bush had done before the Supreme Court Boumediene decision and habeas corpus is not “gamesmanship.”

     “…in the decision to bring the three detainees to Bagram because it happened years before the Supreme Court’s Guantanamo rulings.”

     Yet a shred of affection for law still poked up even in Sentelle:

    “Still, he left the door open to approving habeas corpus rights for prisoners taken to prisons other than Guantanamo in the future, writing, ‘We need make no determination on the importance of this possibility, given that it remains only a possibility; its resolution can await a case in which the claim is a reality rather than speculation”

          This is a war over law within the court system, trying to hold the Constitution against emerging executive tyranny. The Appeals Court, featuring two judges appointed by Democrats out of 3, is for tyranny.  The lower court, run by a judge stood for the rule of law (W. also appointed some people who care about the law).   It is a war in which the Constitution and separation of powers was upheld on the Supreme Court by the vote of one, then 87 year old man, Justice John Paul Stevens.  In this case, there will be no honorable review, as Savage suggests in his rather horrifying conclusion:

       “It could also be difficult to win a reversal by the Supreme Court, where five of the nine justices supported giving habeas rights to detainees in the Guantanamo case.  Among the narrow majority in that case was Justice John Paul Stevens, who is retiring.”

    “The nominee to replace him, Elena Kagan, who as solicitor general signed the government’s briefs in the case, would most likely recuse herself from hearing an appeal of the decision, and a four-four split would allow it to stand.”

      Law in America hangs by a thread.

 

May 25, 1:26 PM, 2010 · No Comment ·  

The Khadr Boomerang

By Scott Horton

In the military commissions prosecution of the Canadian child warrior Omar Khadr, the United States charges murder and attempted murder in violation of the laws of war, in connection with an incident in which a grenade was hurled at American soldiers, leaving one dead and injuring several others. The theory underlying this charge is that Khadr was not a member of any lawful armed force, and his throwing a grenade was an unprivileged act of homicide or attempted homicide. It’s uncontroversial that throwing a grenade with the intention of killing others is a criminal act that can be charged as homicide or attempted homicide unless it’s a privileged act. However, there is a strong opinion among law-of-war scholars to the effect that it is not a violation of the laws of war, but rather a violation of the criminal law of the nation where the incident occurred. Thus, the Khadr prosecution rests on a faulty or eccentric legal position. Now the Vancouver Sun has disclosed that senior lawyers inside the Obama Administration fully recognized that the prosecution of Khadr rested on a false legal premise and attempted to stop and change the prosecution, apparently without success.

Officials in the Obama administration demanded a game-changing rule change for the Guantanamo Bay military tribunal that would have likely scuttled the war crimes murder charge against Canadian-born terror suspect Omar Khadr, Canwest News Service has learned. The officials sought to strip a new commissions manual of a law-of-war murder definition that is central to Khadr’s prosecution in the mortal wounding of Special Forces Sgt. First Class Chris Speer during a 2002 firefight in Afghanistan, insiders say. Omission of the segment could have also obliged prosecutors to trim or abandon “up to one-third” of its cases, according to one inside estimate. Prosecutors said in the wake of the Bush Administration they were prepared to take about 60 Guantanamo detainees to trial—among them the accused co-conspirators of the Sept. 11, 2001 attacks.

The Sun notes that the dispute erupted between lawyers at the State and Defense Departments, with the nation’s senior international law officer, Legal Adviser Harold Koh, arguing that the provision should be dropped, while the senior Defense Department lawyer, Jeh Johnson, supported the provision.

I recently discussed Koh’s attempt to justify the use of drones for targeted killings. I noted that Koh had failed to address an obvious legal issue—that the drones were being operated by civilian contractors, not uniformed military personnel who are privileged to used lethal force under the law of war. The drone warfare raises the same issue that the Khadr prosecution does: if the operators of these systems are not privileged to use lethal force, are they committing a crime under the law of war when they do so? The language adopted in the manual for military commissions argues that they are, but the position taken by the State Department to justify the use of drones assumes the opposite. These positions are difficult to reconcile.

Does this mean that the prosecution of Omar Khadr for homicide as a violation of the law of war could boomerang on the United States? It’s clear than some of the Obama Administration’s best legal minds are concerned about precisely that. And it’s clear that the posture taken in the prosecution of Khadr presents a troubling precedent for civilian contractors, not just those who operate the drones. It is not likely, of course, that the United States will ever charge any of its contractors with “homicide under the law of war” for the use of lethal force in a conflict setting, but the prosecution of Khadr opens the door for others to do so.

The Sun report only serves to highlight the shortcomings of the process of setting the military commission rules. The Gates Pentagon prepared the manual for the military commissions completely behind closed doors. It disregarded established procedures under which proposed procedural rules are disclosed for public comment and the views of the military bar itself are explicitly solicited. We now see that it turned to secrecy because it had something to hide: the rules were recognized as flawed and weak even within the Obama Administration, where they were subjected to appropriately sharp criticism. Had they been publicly aired, the Pentagon would have been forced to work out the contradictions in them. But it opted to keep the country and the bar in the dark.

The Obama Administration owes the country a clear explanation of its legal policy positions with respect to law-of-war issues. What it has served up instead is a series of half-baked and unresolved controversies that undermine confidence in the military justice system. Common Article 3 of the Geneva Conventions, which the Supreme Court has held to be binding on the military commissions, says they must be a “regularly constituted court.” But at every turn, the Pentagon has taken shortcuts that compromise the credibility of these tribunals.

 

U.N. Official to Ask U.S. to End C.I.A. Drone Strikes

By CHARLIE SAVAGE

Published: May 27, 2010     

WASHINGTON — A senior United Nations official is expected to call on the United States next week to stop Central Intelligence Agency drone strikes against people suspected of belonging to Al Qaeda, complicating the Obama administration’s growing reliance on that tactic in Pakistan.

Philip Alston, the United Nations special rapporteur on extrajudicial, summary or arbitrary executions, said Thursday that he would deliver a report on June 3 to the United Nations Human Rights Council in Geneva declaring that the “life and death power” of drones should be entrusted to regular armed forces, not intelligence agencies. He contrasted how the military and the C.I.A. responded to allegations that strikes had killed civilians by mistake.

“With the Defense Department you’ve got maybe not perfect but quite abundant accountability as demonstrated by what happens when a bombing goes wrong in Afghanistan,” he said in an interview. “The whole process that follows is very open. Whereas if the C.I.A. is doing it, by definition they are not going to answer questions, not provide any information, and not do any follow-up that we know about.”

Mr. Alston’s views are not legally binding, and his report will not assert that the operation of combat drones by nonmilitary personnel is a war crime, he said. But the mounting international concern over drones comes as the Obama administration legal team has been quietly struggling over how to justify such counterterrorism efforts while obeying the laws of war.

In recent months, top lawyers for the State Department and the Defense Department have tried to square the idea that the C.I.A.’s drone program is lawful with the United States’ efforts to prosecute Guantánamo Bay detainees accused of killing American soldiers in combat, according to interviews and a review of military documents.

Under the laws of war, soldiers in traditional armies cannot be prosecuted and punished for killing enemy forces in battle. The United States has argued that because Qaeda fighters do not obey the requirements laid out in the Geneva Conventions — like wearing uniforms — they are not “privileged combatants” entitled to such battlefield immunity. But C.I.A. drone operators also wear no uniforms.

Paula Weiss, a C.I.A. spokeswoman, called into question the notion that the agency lacked accountability, noting that it was overseen by the White House and Congress. “While we don’t discuss or confirm specific activities, this agency’s operations take place in a framework of both law and government oversight,” Ms. Weiss said. “It would be wrong to suggest the C.I.A. is not accountable.”

Still, the Obama administration legal team confronted the issue as the Pentagon prepared to restart military commission trials at Guantánamo Bay. The commissions began with pretrial hearings in the case of Omar Khadr, a Canadian detainee accused of killing an Army sergeant during a firefight in Afghanistan in 2002, when Mr. Khadr was 15.

The Pentagon delayed issuing a 281-page manual laying out commission rules until the eve of the hearing. The reason, officials say, is that government lawyers had been scrambling to rewrite a section about murder because it has implications for the C.I.A. drone program.

An earlier version of the manual, issued in 2007 by the Bush administration, defined the charge of “murder in violation of the laws of war” as a killing by someone who did not meet “the requirements for lawful combatancy” — like being part of a regular army or otherwise wearing a uniform. Similar language was incorporated into a draft of the new manual.

But as the Khadr hearing approached, Harold Koh, the State Department legal adviser, pointed out that such a definition could be construed as a concession by the United States that C.I.A. drone operators were war criminals. Jeh Johnson, the Defense Department general counsel, and his staff ultimately agreed with that concern. They redrafted the manual so that murder by an unprivileged combatant would instead be treated like espionage — an offense under domestic law not considered a war crime.

“An accused may be convicted,” the final manual states, if he “engaged in conduct traditionally triable by military commission (e.g., spying; murder committed while the accused did not meet the requirements of privileged belligerency) even if such conduct does not violate the international law of war.”

Under that reformulation, the C.I.A. drone operators — who reportedly fly the aircraft from agency headquarters in Langley, Va. — might theoretically be subject to prosecution in a Pakistani courtroom. But regardless, the United States can argue to allies that it is not violating the laws of war.

Mr. Alston, the United Nations official, said he agreed with the Obama legal team that “it is not per se illegal” under the laws of war for C.I.A. operatives to fire drone missiles “because anyone can stand up and start to act as a belligerent.” Still, he emphasized, they would not be entitled to battlefield immunity like soldiers.

Mary Ellen O’Connell, a Notre Dame University law professor who has criticized the use of drones away from combat zones, also agreed with the Obama administration’s legal theory in this case. She said it could provide a “small modicum” of protection for C.I.A. operatives, noting that Germany had a statute allowing it to prosecute violations of the Geneva Conventions, but it does not enforce domestic Pakistani laws against murder.

In March, Mr. Koh delivered a speech in which he argued that the drone program was lawful because of the armed conflict with Al Qaeda and the principle of self-defense. He did not address several other murky legal issues, like whether Pakistani officials had secretly consented to the strikes. Mr. Alston, who is a New York University law professor, said his report would analyze such questions in detail, which may increase pressure on the United States to discuss them.

 


*Suicide bombers, however, do rampantly kill innocents.

[i]   He is not, after all, Judith Miller or Michael Gordon, purveying Cheney/Ahmed Chalabi smoke in the campaign for American aggression in Iraq.  See Amy and David Goodman, “The Lies of the Times” in Exception to the Rulers.

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