|English: President George W. Bush and President-elect Barack Obama meet in the Oval Office of the White House Monday, November 10, 2008. (Photo credit: Wikipedia)|
Many people, even those who are disappointed by the behaviour of Barack Obama as president, nevertheless acknowledge that he has done some things in a more moderate way than did George W. Bush whose policies he is so often accused of continuing. For example, he is said to have defied the advice of his military chiefs who wanted him to intervene in the civil war in Syria, thus saving the U.S. from engaging in yet another indefensible, and probably unending war in the Middle East.
Nevertheless, without wanting to join the chorus of disappointed lefties who are damning the man holus-bolus, I am struck --- I should rather say appalled --- by the evidence that has mounted in recent days as to the total indefensibility of his administration’s pretence that their use of drones to deliver indiscriminate assassinations, even of American citizens is done according to a credible legal doctrine.
For once, even the mainstream press, or parts of it, have found that more than they can swallow, and two excellent articles have appeared in the New Yorker and in the New York Review of Books whose writes, point by inexorable point, have demolished the pretensions of this recently released document. Of course, the actual reasoning of the legal document has not been released, but merely something that is called a White Paper that purports to explain the legal basis for the targeted assassination program that has become the President’s favourite form of war.
(He is so fond of it he even joked about it in a recent speech when, having mentioned his daughters, he told any young men who might have designs on them to remember two words, Predator Drones. Whether this was found to be so funny by the parents of the many innocent children among the 2900 people believed to have been killed by the drones, he did not mention.)
Normally I find the mainstream press empty when it comes to revealing the true purposes of the US administration, but they have been fairly prominent in the revelations about the actual legal situation concerning unprovoked drone attacks in foreign countries with the intention of carrying out designated assassinations. (Just to write it down makes me nervous).
First, the information about the administration’s reasoning was revealed by NBC News, which prompted the government to issue a White Paper outlining their thinking. Since then a number of excellent articles have crossed my computer screen, with three killer articles on Feb 6 in
the New Yorker by Amy Davidson, (Whom Can the President Kill?) ;
the New York Review of Books, by David Cole (How We Made Killing Easy);
Juan Cole, a professor at the University of Michigan who is well-known as a liberal-minded blogger, in his blog Informed Comment (Top Five Objections to the White House’s Drone Killing Memo);
The Guardian on Feb 8 by Morris Fish, a former prosecutor in the Guantanamo Bay trials, (The law of War Does Not Shield the CIA and John Brennan's Drone Kill List), and ending with a similarly revealing article in
The Guardian by Glen Greenwald on Feb 11 (DOJ Kill List Memo Forces Many Dems out of the closet as Overtly Unprincipled Hacks ) in which he shows how many Democrats have brazenly admitted they are prepared to accept things that Obama has done that they protested against when done by his predecessor, George W. Bush.
Of these articles, the most devastating in its argument, I thought, was that by Juan Cole, who took the five top objections to Obama’s thinking on the issue and showed --- at least to my satisfaction --- that each of them directly contravenes the US Constitution, and could not be supported by any honest court of judges.
All of these articles are worth reading, and I recommend them to anyone who has come across this article --- not many of you, I know, but every little bit of knowledge about how the standards governing decision-makers have deteriorated since Bush ludicrously declared his War on Terror.
Morris Fish, incidentally, used the prosecution of Omar Khadr in Guantanamo Bay as providing ammunition for the argument that Obama is not thinking straight. He writes:
“The deliberate killing of another person is generally murder unless it is excused by some valid legal justification, like the law of war's combatant immunity. For example, the United States charged Omar Khadr with committing murder in violation of the law of war for throwing a grenade and killing a US service member during a battle in Afghanistan.
At his military commission trial at Guantánamo Bay, Cuba, the military judge explained to Khadr that the law says a "killing is unlawful when done without legal justification or excuse" and that "the phrase 'in violation of the law of war' means a person … acting as a combatant [who] did not meet the requirements for being a lawful combatant." Khadr pled guilty to the charge and is now in prison in Canada serving a sentence for war crimes.
He adds that the CIA under whose drone attacks the targeted assassinations are performed, is a civilian agency with civilian employees and civilian contractors. It is not part of the US armed forces and its drone program is not immune from liability by the law of war principles that might apply to the military drone program. Remember, this man was a prosecutor at the military commissions in Guantanamo Bay, and he concludes with an observation from the orthodox legal mind that nevertheless convicts Obama of incorrect application of law:
“Under what authority is the CIA legally excused for deliberately killing?
“The United States has never made – nor should it – the argument that the CIA is part of the US armed forces and governed by the law of war. The fact that the two entities are separate and operate under distinct rules is clear…..
“Jack Goldsmith, former assistant attorney general in the George W Bush administration and now a professor at Harvard Law School, argues the past decade shows that the United States needs a new statutory framework governing how it conducts secret warfare. Perhaps that would be a positive step, but a new domestic statutory scheme would not make a civilian working for a civilian agency a lawful combatant entitled to immunity under the law of war for acts committed outside the United States.
“Neither Congress nor the president has the power to create a legal justification for killing in violation of the law of war.”
What the US President has claimed is that it is perfectly legal for him to assassinate any person, in any place, whom he believes might be planning some form of action, or even thinking about it, against the United States. This with no form of oversight, no form of regulation, no form of control: just arbitrary decisions made without any reference to customary procedures governing murder and assassination.
If this doesn’t stink to High Heaven, as they say, then what would?