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| 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?
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