Friday, April 25, 2014

Aggression by drone and the rule of law

Under Barack Obama, protection of war criminals has accompanied aggression by drone (we are currently murdering civilians, including children in three countries the U.S. is not at war with, Somalia, Pakistan and Yemen). Reverse the medal with John Rawls and ask if your niece or nephew was wiped out at a rural Colorado food stand with friends by a Saudi-Chinese missile (the great power of the waning 21st century I hypothesized about three years ago) how would you feel about it?


America claims the right to kill with impunity all over the world. But that this is less of a mass slaughter than the Bush aggression in Iraq (or that Barack avoids targeting Iran so far) does not mean that it fails to be aggression i.e. mass murder.


The Times has a good editorial two days ago on the judicial decision that the administration disclose its "legal" thinking. There is good reason why Obama tries to hide this emptiness. As my colleague and friend David Weiden informs me, the Congressional discussion of war powers does not require notification of Presidential murder by missiles - no troops on the ground are involved, hence no "war." That this is pettifoggery on behalf of murder (much "legal" discussion of drones in foreign policy is) is obvious.


The secrecy about drones mirrors that about the Joint Special Operations Command (the President's private army of some 66,000 troops) and, as the editorial says, of NSA spying on Americans.


The Times fails, however, to mention the taking out of Abddulrahman Al-Awlaki, the American 16 year old looking for his father along with his 16 year old American cousin and 10 other innocents at a food stand in Yemen.


The Times fails to mention that John Brennan's and Barack Obama's "careful targeting" amounts to geolocation by cell phone of suspects identified by others in countries where we do not speak the language (h/t Edward Snowden). The likely criminality of the American government here is obvious.


The Times fails to mention that Mr. Brennan (an arch war criminal and head of the CIA) counts any boy bringing his father a drink as a kill of a terrorist, not the slaughter of an innocent. Let those responsible stand trial for this and try that as a "defense."


Barack has released torture memos and stopped water boarding. But he has let all the torturers, who murdered over a hundred people in Pentagon custody by Pentagon statistics, walk away without hearings. See here and here. Now war criminals like Jack Goldsmith - as head of Bush's Office of Legal Counsel, Goldsmith courageously withdrew Yoo's torture memos; he also engaged in "extraordinary rendition" to get prisoners tortured and has slipped back to the authoritarian Right - get to crow on lawfare blog (lawfare is ostensibly warfare made with "law"), that really, Obama kills people where Bush imprisoned and tortured them. Sadly, this is true, and a comment on what it means for a decent person to become the President of the Empire.


America needs to be out of the business of war crimes, period. This ruling is a small step toward restoring the rule of law, still a long way up from here.


"Transparency on Targeted Killings

For years now, the Obama administration has been playing a self-serving and duplicitous game over its power to kill people away from any battlefield and without judicial oversight or accountability. It has trotted out successive officials and doled out tidbits of information attesting to the legality of President Obama’s claim to unilateral authority to carry out such killings, while withholding information essential to evaluating that aggressive claim of executive power.

In an important unanimous decision on Monday, a three-judge panel of the federal appeals court in Manhattan refused to go along with that tactic. The ruling, written by Judge Jon Newman of the United States Court of Appeals for the Second Circuit, reversed a disturbing 2013 decision by a federal district judge, Colleen McMahon, upholding the government’s claim to secrecy largely on national security grounds.

The new ruling ordered the release of portions of a classified Justice Department memorandum that provided the legal justification for the targeted killing of a United States citizen, Anwar al-Awlaki, who had joined Al Qaeda and died in a 2011 drone strike in Yemen. It came in response to lawsuits filed under the Freedom of Information Act by The New York Times and two of its reporters, Charlie Savage and Scott Shane, and by the American Civil Liberties Union.

Essentially, the appellate panel reviewed the government’s overwrought claims of national security and found them seriously wanting. It concluded that the government had waived its right to keep the analysis secret, citing numerous public statements by administration officials and the Justice Department’s release of a 16-page, single-spaced “white paper” containing a detailed analysis of why targeted killings were legal.

“Whatever protection the legal analysis might once have had,” Judge Newman wrote for the panel, “has been lost by virtue of public statements of public officials at the highest levels and official disclosure of the D.O.J. White Paper.” Still, there seems to be a very good chance that the secret analysis will reveal critical aspects of the government’s justification for its actions, well beyond what the public has been told. Otherwise, why would the administration have refused to disclose the memo for years?

Jameel Jaffer, a lawyer for the American Civil Liberties Union, stresses the decision’s value in rejecting “the government’s effort to use secrecy, and selective disclosure, as a means of manipulating public opinion about the targeted killing program.”

The administration’s attempt to have it both ways in this instance — cherry-picking information to share while keeping its underlying legal reasoning secret — recalls its response to the revelations of widespread phone-data surveillance by the National Security Agency.

In both instances, the administration has shown itself to be more interested with its public relations crusade than with being open and honest with the American people about significant acts carried out in their name.

Instead of appealing Monday’s ruling to the full Second Circuit or the Supreme Court, President Obama should see the wisdom of allowing it to stand — and allowing the conversation the country needs to have."

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