by Peter Van Buren
You can’t get more serious about protecting the people from their government than the Fifth Amendment to the Constitution, specifically in its most critical clause: “No person shall be… deprived of life, liberty, or property, without due process of law.” In 2011, the White House ordered the [...]]]>
by Peter Van Buren
You can’t get more serious about protecting the people from their government than the Fifth Amendment to the Constitution, specifically in its most critical clause: “No person shall be… deprived of life, liberty, or property, without due process of law.” In 2011, the White House ordered the drone-killing of American citizen Anwar al-Awlaki without trial. It claimed this was a legal act it is prepared to repeat as necessary. Given the Fifth Amendment, how exactly was this justified? Thanks to a much contested, recently released but significantly redacted — about one-third of the text is missing — Justice Department white paper providing the basis for that extrajudicial killing, we finally know: the president in Post-Constitutional America is now officially judge, jury, and executioner.
Due Process in Constitutional America
Looking back on the violations of justice that characterized British rule in pre-Constitutional America, it is easy to see the Founders’ intent in creating the Fifth Amendment. A government’s ability to inflict harm on its people, whether by taking their lives, imprisoning them, or confiscating their property, was to be checked by due process.
Due process is the only requirement of government that is stated twice in the Constitution, signaling its importance. The Fifth Amendment imposed the due process requirement on the federal government, while the Fourteenth Amendment did the same for the states. Both offer a crucial promise to the people that fair procedures will remain available to challenge government actions. The broader concept of due process goes all the way back to the thirteenth-century Magna Carta.
Due process, as refined over the years by the Supreme Court, came to take two forms in Constitutional America. The first was procedural due process: people threatened by government actions that might potentially take away life, liberty, or possessions would have the right to defend themselves from a power that sought, whether for good reasons or bad, to deprive them of something important. American citizens were guaranteed their proverbial “day in court.”
The second type, substantive due process, was codified in 1938 to protect those rights so fundamental that they are implicit in liberty itself, even when not spelled out explicitly in the Constitution. Had the concept been in place at the time, a ready example would have been slavery. Though not specifically prohibited by the Constitution, it was on its face an affront to democracy. No court process could possibly have made slavery fair. The same held, for instance, for the “right” to an education, to have children, and so forth. Substantive due process is often invoked by supporters of same-sex unions, who assert that there is a fundamental right to marry. The meaning is crystal clear: there is an inherent, moral sense of “due process” applicable to government actions against any citizen and it cannot be done away with legally. Any law that attempts to interfere with such rights is inherently unconstitutional.
Al-Awlaki’s Death
On September 30, 2011, on the order of the president, a U.S. drone fired a missile in Yemen and killed Anwar al-Awlaki. A Northern Virginia Islamic cleric, in the aftermath of 9/11 he had been invited to lunch at the Pentagon as part of a program to create ties to Muslim moderates. After he moved to Yemen a few years later, the U.S. accused him of working with al-Qaeda as a propagandist who may have played an online role in persuading others to join the cause. (He was allegedly linked to the “Underwear Bomber” and the Fort Hood shooter.) However, no one has ever accused him of pulling a trigger or setting off a bomb, deeds that might, in court, rise to the level of a capital crime. Al-Awlaki held a set of beliefs and talked about them. For that he was executed without trial.
In March 2012, Attorney General Eric Holder made quite a remarkable statement about the al-Awlaki killing. He claimed “that a careful and thorough executive branch review of the facts in a case amounts to ‘due process’ and that the Constitution’s Fifth Amendment protection against depriving a citizen of his or her life without due process of law does not mandate a ‘judicial process.’” In other words, according to the top legal authority in the nation, a White House review was due process enough when it came to an American citizen with al-Qaeda sympathies. In this, though it was unknown at the time, Holder was essentially quoting a secret white paper on that killing produced by the Office of Legal Counsel, located in the department he headed.
In June 2014, after a long court battle to shield the underlying legal basis for the killing, the Obama administration finally released a redacted version of that classified 2010 white paper. In the end, it did so only because without its release key senators were reluctant to confirm the memo’s author, David Barron, who had been nominated by President Obama to serve on the First Circuit Court of Appeals. (Once it was made public, Barron was indeed confirmed.)
The importance of the white paper to understanding Post-Constitutional America cannot be understated. Despite all the unconstitutional actions taken by the government since 9/11 — including striking violations of the Fourth Amendment — this paper is to date the only glimpse we have of the kind of thinking that has gone into Washington’s violations of the Bill of Rights.
Here’s the terrifying part: ostensibly the result of some of the best legal thinking available to the White House on a issue that couldn’t be more basic to the American system, it wouldn’t get a first-year law student a C-. The arguments are almost bizarrely puerile in a document that is a visibly shaky attempt to provide cover for a pre-determined premise. No wonder the administration fought its release for so long. Its officials were, undoubtedly, ashamed of it. Let’s drill down.
Death by Pen
For the killing of an American citizen to be legal, the document claims, you need one essential thing: “an informed, high-level official of the U.S. government [who] has determined that the targeted individual poses an imminent threat of violent attack against the United States.” In addition, capture must be found to be unfeasible and the act of killing must follow the existing laws of war, which means drones are okay but poison gas is a no-no.
The rest of the justification in the white paper flows from that premise in a perverse chain of ankle-bone-connected-to-the-leg-bone logic: the president has the obligation to protect America; al-Qaeda is a threat; Congress authorized war against it; and being in al-Qaeda is more relevant than citizenship (or as the document crudely puts it, “citizenship does not immunize the target”). International borders and the sovereignty of other nations are not issues if the U.S. determines the host nation is “unwilling or unable to suppress the threat posed by the individual targeted.” Basically, it’s all an extension of the idea of self-defense, with more than a dash of convenience shaken in.
When the white paper addresses the Fifth Amendment’s right to due process, and to a lesser extent, the Fourth Amendment’s right against unwarranted seizure (that is, the taking of a life), it dismisses them via the “balancing test.” Not exactly bedrock constitutional material, it works this way: in situations where the government’s interest overshadows an individual’s interest, and the individual’s interest isn’t that big a deal to begin with, and a mistake by the government can later be undone, the full due process clause of the Fifth Amendment need not come into play.
The three-point balancing test cited by the white paper as conclusive enough to justify the extrajudicial killing of an American comes from a 1976 Supreme Court case, Mathews v. Eldridge. There, the court held that an individual denied Social Security benefits had a right to some form of due process, but not necessarily full-blown hearings. In Anwar al-Awlaki’s case, this translates into some truly dubious logic: the government’s interest in protecting Americans overshadows one citizen’s interest in staying alive. Somehow, the desire to stay alive doesn’t count for much because al-Awlaki belonged to al-Qaeda and was in the backlands of Yemen, which meant that he was not conveniently available by capture for a trial date. Admittedly, there’s no undoing death in a drone killing, but so what.
The white paper also draws heavily on the use of the balancing test in the case of Hamdi v. Rumsfeld, in which the U.S. rendered from Afghanistan Yaser Hamdi, a Saudi-American citizen, and sought to detain him indefinitely without trial. After a long legal battle that went to the Supreme Court, the balance test was applied to limit — but not fully do away with — due process. Despite limiting Hamdi’s rights in service to the war on terror, the court was clear: Yaser Hamdi should have a meaningful opportunity to challenge his status. Fearing that giving him his moment in court would expose the brutal reality of his capture, interrogation, and detention, the U.S. government instead released him to Saudi Arabia.
Hamdi’s case dealt with procedural questions, such as whether he should be allowed a trial and if so, under what conditions. As with Mathews v. Eldridge, Hamdi never focused on issues of life and death. Cases can be (re)tried, prisoners released, property returned. Dead is dead — in the case of al-Awlaki that applies to the drone’s target, the balance test, and the Fifth Amendment itself.
What Do Words Mean in Post-Constitutional America?
Having dispensed with significant constitutional issues thanks to some exceedingly dubious logic, the white paper returns to its basic premise: that a kill is legal when that “informed, high-level official” determines that an “imminent threat” to the country is involved. In other words, if the president is convinced, based on whatever proof is provided, he can order an American citizen killed. The white paper doesn’t commit itself on how far down the chain of “high-level officials” kill authority can be delegated. Could the Secretary of the Interior, for instance, issue such an order? He or she is, after all, eighth in the line of succession should the president die in office.
The white paper does, however, spend a fair amount of time explaining how the dictionary definitions of “imminent” and “immediate” do not apply. For kill purposes, it says, the U.S. must have “clear evidence that a specific attack on U.S. persons will take place in the immediate future.” However, the paper goes on to explain that “immediate” can include a situation like al-Awlaki’s in which a person may or may not have been engaged in planning actual attacks that might not be launched for years, or perhaps ever. The paper claims that, since al-Qaeda would prefer to attack the U.S. on a continual basis, any planning or forethought today, however fantastical or future-oriented, constitutes an “imminent” attack that requires sending in the drones.
And if, as perhaps the author of the paper suspected, that isn’t really enough when faced with the bluntness of the Constitution on the issue, the white paper haphazardly draws on the public authority justification. According to this legal concept, public authorities can, in rare circumstances, violate the law — a cop can justifiably kill a bad guy under certain conditions. By extension, the white paper argues, the government of the United States can drone-kill a citizen who is allegedly a member of al-Qaeda. The white paper conveniently doesn’t mention that police shootings are subject to judicial review, and those who commit such unlawful acts can face punishment. The laws behind such a review are unclassified and public, not the rationed fodder of a redacted white paper.
For the final nail in the coffin of some American citizen, the white paper concludes that, Fifth Amendment violation or not, its arguments cannot be challenged in court. In cases of “foreign policy,” courts have traditionally almost always refused to intervene, holding that they are in the realm of the executive branch in consultation, as required, with Congress. Killing an American abroad, the white paper insists, is a foreign policy act and so none of any courts’ business.
Principles
Substantive due process legally applies only to legislation, and it is highly unlikely that the Obama administration will seek legislative sanction for its kill process. So it is in one sense not surprising that the white paper makes no mention of it. However, looking at what we can read of that redacted document through the broader lens of substantive due process does tell us a lot about Post-Constitutional America. In Constitutional America, the idea was that a citizen’s right to life and the due process that went with it was essentially an ultimate principle that trumped all others, no matter how bad or evil that person might be. What is important in the white paper is not so much what is there, but what is missing: a fundamental sense of justness.
As medieval kings invoked church sanction to justify evil deeds, so in our modern world lawyers are mobilized to transform government actions that spit in the face of substantive due process — torture, indefinite detention without charge, murder — into something “legal.” Torture morphs into acceptable enhanced interrogation techniques, indefinite detention acquires a quasi-legal stance with the faux-justice of military tribunals, and the convenient murder of a citizen is turned into an act of “self-defense.” However unpalatable Anwar al-Awlaki’s words passed on via the Internet may have been, they would be unlikely to constitute a capital crime in a U.S. court. His killing violated the Fifth Amendment both procedurally and substantively.
Despite its gravity, once the white paper was pried loose from the White House few seemed to care what it said. Even the New York Times, which had fought in court alongside the ACLU to have it released, could only bring itself to editorialize mildly that the document offered “little confidence that the lethal action was taken with real care” and suggest that the rubber-stamp secret Foreign Intelligence Surveillance Court be involved in future kill orders. The ACLU’s comments focused mostly on the need for more documentation on the kills. Meanwhile, a majority of Americans, 52%, approve of drone strikes, likely including the one on Anwar al-Awlaki.
The Kind of Country We Live In
We have fallen from a high place. Dark things have been done. Imagine, pre-9/11, the uproar if we had learned that the first President Bush had directed the NSA to sweep up all America’s communications without warrant, or if Bill Clinton had created a secret framework to kill American citizens without trial. Yet such actions over the course of two administrations are now accepted as almost routine, and entangled in platitudes falsely framing the debate as one between “security” and “freedom.” I suspect that, if they could bring themselves to a moment of genuine honesty, the government officials involved in creating Post-Constitutional America would say that they really never imagined it would be so easy.
In one sense, America the Homeland has become the most significant battleground in the war on terror. No, not in the numbers of those killed or maimed, but in the broad totality of what has been lost to us for no gain. It is worth remembering that, in pre-Constitutional America, a powerful executive — the king — ruled with indifference to the people. With the Constitution, we became a nation, in spirit if not always in practice, based on a common set of values, our Bill of Rights. When you take that away, we here in Post-Constitutional America are just a trailer park of strangers.
– Peter Van Buren blew the whistle on State Department waste and mismanagement during the Iraqi reconstruction in his first book, We Meant Well: How I Helped Lose the Battle for the Hearts and Minds of the Iraqi People. A Tom Dispatch regular, he writes about current events at his blog, We Meant Well. His new book, Ghosts of Tom Joad: A Story of the #99Percent, is available now.
This article was first published by Tom Dispatch and was reprinted here with permission. Follow TomDispatch on Twitter and join us on Facebook and Tumblr. Check out the newest Dispatch Book, Rebecca Solnit’s Men Explain Things to Me. Copyright 2014 Peter Van Buren
]]>Failure to account and justify lethal drone activity by the United States represents a major violation of international law and international human rights law, a former U.N. rapporteur said Wednesday.
Since the beginning of drone attacks in 2001, the U.S. has conducted around 450 lethal drone strikes that have [...]]]>
Failure to account and justify lethal drone activity by the United States represents a major violation of international law and international human rights law, a former U.N. rapporteur said Wednesday.
Since the beginning of drone attacks in 2001, the U.S. has conducted around 450 lethal drone strikes that have raised humanitarian and international legal issues.
“About 370 have taken place in Pakistan, with the next largest, 60 to 70, in Yemen,” said Steve Coll, dean of Columbia’s Journalism School, and a former Pulitzer prize winning reporter for the Washington Post and New Yorker.
Speaking during a panel discussion, he said: “The peak was in 2010 where there were 120 drone strikes in Pakistan. That equates to about one every three days.”
With reports by Pakistan military stating that 2,160 militants and 67 civilians were killed through drone attacks that were carried out through covert operations, the panel agreed that the U.S. government needs to address this human rights issue.
Former UN Special Rapporteur on extrajudicial, summary or arbitrary executions Philip Alston said the U.S. failed to justify the basis for the use of armed drones, failed to acknowledge if a law has been broken or if civilian casualties have occurred.
“This failure regardless of anything else represents a major violation of international law and sets the U.S. up as an actor that sees itself as not accountable,” he said.
“The entire structure of both international humanitarian law and human rights law are premised on the notion that states accused of violating laws will respond with sufficient information to enable an evaluation and assessment to be undertaken.”
“There have been two fronted covert aerial wars in two different settings. The Obama administration finally acknowledged (in 2013) for the first time that the drone campaign exists,” Coll said.
Although the use of drones lies under U.S. law and policy framework of a “memorandum of notification”– a legal document authorised by the U.S. president to the Central Intelligence Agency (CIA) to carry out covert action — it does not mean it aligns with international law, he said.
Alston added that after he challenged the CIA about the strikes, he received no response as to their involvement and rationale.
He said the response he did receive was that “we, the CIA have no obligation to tell you anything and we have not told you anything. What we have done is to leak various statements when it suits us, including the John Brennan (director of the CIA) statement that not a single civilian was killed.”
The controversial topic of drone strikes by the U.S. has raised concern from numerous organizations, including the United Nations.
In a statement last August, Secretary-General Ban Ki-moon said that the use of armed drones should be subject to the rules of international law and international humanitarian law.
He added, “Every effort should be made to avoid mistakes and civilian casualties.”
The United Nations has deployed unarmed drones, which it describe as unmanned aerial vehicles (UAVs) , in at least one of its peacekeeping missions in Africa.
Jassmyn Goh is a trainee at the IPS United Nations bureau in New York.
]]>
by Tyler Cullis
The Bureau of Investigative Journalism reports that January was the first month without a U.S. drone strikein the Pakistani tribal areas since 2011. The Washington Post argues that this is the result of a request from Pakistan’s government after ongoing peace talks with the Taliban, though some suggest [...]]]>
by Tyler Cullis
The Bureau of Investigative Journalism reports that January was the first month without a U.S. drone strikein the Pakistani tribal areas since 2011. The Washington Post argues that this is the result of a request from Pakistan’s government after ongoing peace talks with the Taliban, though some suggest that President Obama’s new rules on targeting, released simultaneously with his National Defense University speech in May 2013, have limited the range of actors that would have earlier been targetable by the CIA and Defense Department.
It is likewise unclear whether this development will continue in the months ahead. Good reasons, however, suggest so as the war in Afghanistan draws down and the U.S. (potentially) loses access to bases in the country and to human intelligence. Below I detail some key issues we will need to pay attention to in the days ahead to see whether the White House will tilt away from the war-everywhere posture that the United States has assumed since Sept. 11.
Will the Afghan War come to a close?
It is becoming increasingly clear that President Hamid Karzai will not sign the U.S.-Afghan Bilateral Security Agreement before presidential elections in April. This poses a major dilemma for the White House, which must decide whether to make contingency plans for a small residual force should Afghan approval be forthcoming at a later date or plan a full withdrawal. But the implications run much deeper as to both the U.S.’s legal rationale for its war on al-Qaeda and the U.S.’s ability to carry out drone operations in Pakistan’s tribal areas.
If the White House is forced to commit to a total withdrawal by the end of 2014, the U.S. will lose its last remaining zone of active hostilities in its war with al-Qaeda. In this way, the legal rationale for drone strikes in Pakistan, Yemen, and Somalia will be completely untethered from any traditional war theater. This bodes ill for the continued ability of the Obama administration to wage drone warfare without incurring massive reputational damage to the United States.
Moreover, as the New York Times reported, a total withdrawal would mean the loss of basing operations in Afghanistan and thus the loss of staging grounds for CIA drone flights into Pakistan’s tribal areas. Without good options elsewhere, U.S. drone operations in the tribal areas will be seriously circumscribed, if not altogether curtailed.
How will the White House interpret its own policy guidelines?
During his May speech, President Obama outlined new targeting rules to be effective outside areas of active hostilities. These rules provide that “the United States will use lethal force only against a target that poses a continuing, imminent threat to U.S. persons.” In the absence of such a threat, the U.S. will forgo the use of lethal force (i.e., drone strikes).
However, a leading human rights lawyer, Sarah Knuckey, caught a discrepancy between the President’s policy guidelines and the justification provided by an administration official for last week’s drone strike on an al-Shabaab commander in Somalia. Instead of posing a “continuing, imminent threat to U.S. persons,” as is mandated, the U.S. official said that Ahmed Abdi Godane, the target, posed an “imminent threat to U.S. interests in the region.” Intended or not, the switch in the operative language is cause for concern, as “U.S. interests” could be stretched indefinitely to render a much wider swath of individuals targetable for drone strikes.
What is important, however, is whether the administration adopts an expansive or narrow interpretation of its own policy guidelines. With such elastic concepts as “imminence” and “U.S. interests” determining who is targetable, the White House can opt to keep the U.S. on permanent war footing long past the Iraq and Afghan Wars if it so chooses. Transparency in how the U.S. targets individuals and conducts drone strikes will be crucial to determining which of the two paths the President has chosen.
Will the U.S.’s traditional allies continue to cooperate on intelligence?
In a major policy speech at the Harvard Law School in 2011, CIA Director John O. Brennan argued that “when the [U.S.] upholds the rule of law, governments around the globe are more likely to provide us with intelligence we need to disrupt ongoing plots.” However, U.S. allies, especially in Europe, have long castigated the U.S. for its “global war on terror” and parted ways with successive White Houses over the applicable legal framework. Nonetheless, NATO allies have continued to share intelligence regarding foreign terrorist organizations, up to and including locational data for U.S. drone strikes.
Last week, however, a leading UK barrister published legal advice for a British parliamentary group concerning the legality of GCHQ surveillance, as well as intelligence cooperation with the United States. This legal advice included the striking conclusion that should a UK person share intelligence with the U.S. with the knowledge that such intelligence could be used for a drone strike, that person might be criminally liable as an “accessory to murder” under UK law. Already, a case was pressed on such grounds (though it failed for different reasons).
This was well-publicized in the British press and received much attention in U.S. legal circles. What effect it will have on intelligence cooperation is unclear, but the implications of “business as usual” have been rendered transparent. The White House can put forth dubious legal justifications for its drone operations, but that will not prevent close allies from risking criminal liability should they continue to cooperate with the U.S.
]]>by Daniel Luban
Earlier this year, William Saletan published a typically contrarian piece titled “In Defense of Drones”. The subtitle — “they’re the worst form of war, except for all the others” — gives a good indication of the general line of argument; Saletan suggested that the collateral damage of the [...]]]>
by Daniel Luban
Earlier this year, William Saletan published a typically contrarian piece titled “In Defense of Drones”. The subtitle — “they’re the worst form of war, except for all the others” — gives a good indication of the general line of argument; Saletan suggested that the collateral damage of the drone war has been far smaller than in past US military campaigns, and that drones remain a necessary evil far preferable to conventional bombing.
This view of drones as comparatively precise and surgical may be too optimistic; one recent study of the war in Afghanistan by a US military adviser suggested that drone strikes were actually “an order of magnitude more likely to result in civilian casualties per engagement” than attacks from manned aircraft. And there is also some evidence to suggest that drones exact a psychological toll on civilian populations over and above conventional bombing that is not reflected in raw casualty statistics.
But for all that, I think there’s something to Saletan’s argument. That’s not to say (as he seems to) that we should be okay with the way the US is waging the war on terror. It’s merely to say that we shouldn’t attribute all the evils of the war on terror to one specific weapon (drones) in a way that implies that conventional bombers or cruise missiles or commando raids would somehow be gentler or more humane. (In fact, all of these remain key parts of the US repertoire.) Similarly, we should be wary of insisting on the unprecedented brutality of the drone war in ways that minimize the far greater tolls exacted by conventional military actions in the past.
Any critique of the war on terror, in other words, should focus less on means and more on ends. The key question is whether the US should be engaged in assassinating large numbers of suspected militants around the world; the weapons by which it does so are of secondary importance. Public discomfort with drones makes it tempting to put them at the center of the debate — but if the upshot is simply that the US should stop killing targets with Predators and double down on killing them with special forces, this would be a hollow victory or even a Pyrrhic one.
I get into these issues in more depth in a recent review essay for Dissent, where I tried to put the war on terror in a somewhat broader historical perspective by examining three very good recent books: Nick Turse’s Kill Anything That Moves, Jeremy Scahill’s Dirty Wars, and Mark Mazzetti’s The Way of the Knife. A brief excerpt:
[T]here is some risk of fetishizing The Drone at the expense of a wider view of the American War on Terror. The visceral creepiness of the new technology has been crucial in raising awareness of the human consequences of this war, but it can distract us from the fact that Predators and Reapers are simply one type of weapon by which it is being waged. Americans may shiver at the thought of Hellfire missiles falling out of a clear blue sky, but most continue to thrill to the exploits of Seal Team Six, and the latter is just as fundamental a feature of the new American way of war as the former. So, too, are the Kalashnikov-wielding militiamen on the payroll of U.S.-backed warlords in Somalia and the programmers conducting cyber-sabotage against the Iranian nuclear enrichment program. Technological innovation has been key to American military policy since 9/11, but it has by no means been the only driver of change. As the books under review make clear, we might better view these years as a story of the U.S. national security apparatus gradually breaking free of the restraints—both of law and of public scrutiny—imposed on it in the wake of Vietnam and Watergate. It is also a story of the military and intelligence wings of this apparatus becoming increasingly intertwined and indistinguishable from one another. A wider view of the War on Terror may be necessary, but it is by no means more comforting.
Those interested should read the whole thing.
]]>via Tom Dispatch
[This epilogue to Scahill’s bestselling book, Dirty Wars: The World Is a Battlefield, is posted with the kind permission of its publisher, Nation Books.]
On January 21, 2013, Barack Obama was inaugurated for his second term [...]]]>
via Tom Dispatch
[This epilogue to Scahill’s bestselling book, Dirty Wars: The World Is a Battlefield, is posted with the kind permission of its publisher, Nation Books.]
On January 21, 2013, Barack Obama was inaugurated for his second term as president of the United States. Just as he had promised when he began his first campaign for president six years earlier, he pledged again to turn the page on history and take U.S. foreign policy in a different direction. “A decade of war is now ending,” Obama declared. “We, the people, still believe that enduring security and lasting peace do not require perpetual war.”
Much of the media focus that day was on the new hairstyle of First Lady Michelle Obama, who appeared on the dais sporting freshly trimmed bangs, and on the celebrities in attendance, including hip-hop mogul Jay-Z and his wife, Beyoncé, who performed the national anthem. But the day Obama was sworn in, a U.S. drone strike hit Yemen. It was the third such attack in that country in as many days. Despite the rhetoric from the president on the Capitol steps, there was abundant evidence that he would continue to preside over a country that is in a state of perpetual war.
In the year leading up to the inauguration, more people had been killed in U.S. drone strikes across the globe than were imprisoned at Guantánamo. As Obama was sworn in for his second term, his counterterrorism team was finishing up the task of systematizing the kill list, including developing rules for when U.S. citizens could be targeted. Admiral William McRaven had been promoted to the commander of the United States Special Operations Command (SOCOM), and his Special Ops forces were operating in more than 100 countries across the globe.
After General David Petraeus’s career was brought to a halt as a result of an extramarital affair, President Obama tapped John Brennan to replace him as director of the CIA, thus ensuring that the Agency would be headed by a seminal figure in the expansion and running of the kill program. After four years as Obama’s senior counterterrorism adviser, Brennan had become known in some circles as the “assassination czar” for his role in U.S. drone strikes and other targeted killing operations.
When Obama had tried to put Brennan at the helm of the Agency at the beginning of his first term, the nomination was scuttled by controversy over Brennan’s role in the Bush-era detainee program. By the time President Obama began his second term in office, Brennan had created a “playbook” for crossing names off the kill list. “Targeted killing is now so routine that the Obama administration has spent much of the past year codifying and streamlining the processes that sustain it,” noted the Washington Post.
Brennan played a key role in the evolution of targeted killing by “seeking to codify the administration’s approach to generating capture/kill lists, part of a broader effort to guide future administrations through the counterterrorism processes that Obama has embraced,” the paper added. “The system functions like a funnel, starting with input from half a dozen agencies and narrowing through layers of review until proposed revisions are laid on Brennan’s desk, and subsequently presented to the president.”
Obama’s counterterrorism team had developed what was referred to as the “Disposition Matrix,” a database full of information on suspected terrorists and militants that would provide options for killing or capturing targets. Senior administration officials predicted that the targeted killing program would persist for “at least another decade.” During his first term in office, the Washington Post concluded, “Obama has institutionalized the highly classified practice of targeted killing, transforming ad-hoc elements into a counterterrorism infrastructure capable of sustaining a seemingly permanent war.”
Redefining “Imminent Threat”
In early 2013, a Department of Justice “white paper” surfaced that laid out the “Lawfulness of a Lethal Operation Directed Against a U.S. Citizen.” The government lawyers who wrote the 16-page document asserted that the government need not possess specific intelligence indicating that an American citizen is actively engaged in a particular or active terror plot in order to be cleared for targeted killing. Instead, the paper argued that a determination from a “well-informed high level administration official” that a target represents an “imminent threat” to the United States is a sufficient basis to order the killing of an American citizen. But the Justice Department’s lawyers sought to alter the definition of “imminent,” advocating what they called a “broader concept of imminence.”
They wrote, “The condition that an operational leader present an ‘imminent’ threat of violent attack against the United States does not require the United States to have clear evidence that a specific attack on U.S. persons will take place in the immediate future.” The government lawyers argued that waiting for a targeted killing of a suspect “until preparations for an attack are concluded, would not allow the United States sufficient time to defend itself.” They asserted that such an operation constitutes “a lawful killing in self-defense” and is “not an assassination.”
Jameel Jaffer of the ACLU called the white paper a “chilling document,” saying that “it argues that the government has the right to carry out the extrajudicial killing of an American citizen.” Jaffer added, “This power is going to be available to the next administration and the one after that, and it’s going to be available in every future conflict, not just the conflict against al-Qaeda. And according to the [Obama] administration, the power is available all over the world, not just on geographically cabined battlefields. So it really is a sweeping proposition.”
In October 2002, as the Bush administration prepared to invade Iraq, Barack Obama gave the first major speech of his national political career. The then-state senator came out forcefully against going to war in Iraq, but he began his speech with a clarification. “Although this has been billed as an anti-war rally, I stand before you as someone who is not opposed to war in all circumstances… I don’t oppose all wars.” Obama declared, “What I am opposed to is a dumb war. What I am opposed to is a rash war.” During his first campaign for president, Obama had blasted the Bush administration for fighting the wrong war — Iraq — and repeatedly criticized his opponent, Senator John McCain, for not articulating how he would take the fight to Osama bin Laden and al-Qaeda.
As his first term in office wound down, the overwhelming majority of U.S. military forces had been withdrawn from Iraq and plans for a similar drawdown in Afghanistan in 2014 were being openly discussed. The administration had succeeded in convincing the American public that Obama was waging a smarter war than his predecessor. As he ran for reelection, Obama was asked about charges from his Republican opponents that his foreign policy was based on appeasement. “Ask Osama bin Laden and the 22 out of 30 top al-Qaeda leaders who have been taken off the field whether I engage in appeasement,” Obama replied. “Or whoever is left out there, ask them about that.”
As the war on terror entered a second decade, the fantasy of a clean war took hold. It was a myth fostered by the Obama administration, and it found a ready audience. All polls indicated that Americans were tired of large military deployments in Iraq and Afghanistan and the mounting U.S. troop casualties that came with them. A 2012 poll found that 83% of Americans supported Obama’s drone program, with 77% of self-identified liberal Democrats supporting such strikes. The Washington Post–ABC News poll determined that support for drone strikes declined “only somewhat” in cases where a U.S. citizen was the target.
President Obama and his advisers seldom mentioned the drone program publicly. In fact, the first known confirmation of the use of armed drones by the president came several years into Obama’s first term. It was not in the form of a legal brief or a press conference, but rather on a Google+ “Hangout” as the president took questions from the public. Obama was asked about his use of drones. “I want to make sure that people understand actually drones have not caused a huge number of civilian casualties,” Obama said. “For the most part, they have been very precise, precision strikes against al-Qaeda and their affiliates. And we are very careful in terms of how it’s been applied.”
He rejected what he called the “perception” that “we’re just sending in a whole bunch of strikes willy-nilly” and asserted that “this is a targeted, focused effort at people who are on a list of active terrorists, who are trying to go in and harm Americans, hit American facilities, American bases, and so on.” Obama added: “It is important for everybody to understand that this thing is kept on a very tight leash. It’s not a bunch of folks in a room somewhere just making decisions. And it is also part and parcel of our overall authority when it comes to battling al-Qaeda. It is not something that’s being used beyond that.”
Michael Boyle, a former adviser in the Obama campaign’s counterterrorism experts group and a professor at LaSalle University, said that one of the reasons the administration was “so successful in spinning the number of civilian casualties” was the use of signature strikes and other systems for categorizing military-aged males as legitimate targets, even if their specific identities were unknown. “The result of the ‘guilt by association’ approach has been a gradual loosening of the standards by which the U.S. selects targets for drone strikes,” Boyle charged. “The consequences can be seen in the targeting of mosques or funeral processions that kill non-combatants and tear at the social fabric of the regions where they occur.” No one, he added, “really knows the number of deaths caused by drones in these distant, sometimes ungoverned, lands.”
Using drones, cruise missiles, and Special Ops raids, the United States has embarked on a mission to kill its way to victory. The war on terror, launched under a Republican administration, was ultimately legitimized and expanded by a popular Democratic president. Although Barack Obama’s ascent to the most powerful office on Earth was the result of myriad factors, it was largely due to the desire of millions of Americans to shift course from the excesses of the Bush era.
Had John McCain won the election, it is difficult to imagine such widespread support, particularly among liberal Democrats, for some of the very counterterrorism policies that Obama implemented. As individuals, we must all ask whether we would support the same policies — the expansion of drone strikes, the empowerment of Joint Special Operations Command (JSOC), the use of the State Secrets Privilege, the use of indefinite detention, the denial of habeas corpus rights, the targeting of U.S. citizens without charge or trial — if the commander in chief was not our candidate of choice.
But beyond the partisan lens, the policies implemented by the Obama administration will have far-reaching consequences. Future U.S. presidents — Republican or Democratic — will inherit a streamlined process for assassinating enemies of America, perceived or real. They will inherit an executive branch with sweeping powers, rationalized under the banner of national security.
Assassinating Enemies
In 2012, a former constitutional law professor was asked about the U.S. drone and targeted killing program. “It’s very important for the president and the entire culture of our national security team to continually ask tough questions about ‘Are we doing the right thing? Are we abiding by the rule of law? Are we abiding by due process?’” he responded, warning that it was important for the United States to “avoid any kind of slippery slope into a place where we’re not being true to who we are.”
That former law professor was Barack Obama.
The creation of the kill list and the expansion of drone strikes “represents a betrayal of President Obama’s promise to make counterterrorism policies consistent with the U.S. constitution,” charged Boyle. Obama, he added, “has routinized and normalized extrajudicial killing from the Oval Office, taking advantage of America’s temporary advantage in drone technology to wage a series of shadow wars in Afghanistan, Pakistan, Yemen, and Somalia. Without the scrutiny of the legislature and the courts, and outside the public eye, Obama is authorizing murder on a weekly basis, with a discussion of the guilt or innocence of candidates for the ‘kill list’ being resolved in secret.” Boyle warned:
“Once Obama leaves office, there is nothing stopping the next president from launching his own drone strikes, perhaps against a different and more controversial array of targets. The infrastructure and processes of vetting the ‘kill list’ will remain in place for the next president, who may be less mindful of moral and legal implications of this action than Obama supposedly is.”
In late 2012, the ACLU and the New York Times sought information on the legal rationale for the kill program, specifically the strikes that had killed three U.S. citizens — among them 16-year-old Abdulrahman Awlaki. In January 2013, a federal judge ruled on the request. In her decision, Judge Colleen McMahon appeared frustrated with the White House’s lack of transparency, writing that the Freedom of Information Act (FOIA) requests raised “serious issues about the limits on the power of the Executive Branch under the Constitution and laws of the United States, and about whether we are indeed a nation of laws, not of men.”
She charged that the Obama administration “has engaged in public discussion of the legality of targeted killing, even of citizens, but in cryptic and imprecise ways, generally without citing to any statute or court decision that justifies its conclusions.” She added, “More fulsome disclosure of the legal reasoning on which the administration relies to justify the targeted killing of individuals, including United States citizens, far from any recognizable ‘hot’ field of battle, would allow for intelligent discussion and assessment of a tactic that (like torture before it) remains hotly debated. It might also help the public understand the scope of the ill-defined yet vast and seemingly ever-growing exercise.”
Ultimately, Judge McMahon blocked the release of the documents. Citing her legal concerns about the state of transparency with regard to the kill program, she wrote:
“This Court is constrained by law, and under the law, I can only conclude that the Government has not violated FOIA by refusing to turn over the documents sought in the FOIA requests, and so cannot be compelled by this court of law to explain in detail the reasons why its actions do not violate the Constitution and laws of the United States. The Alice-in-Wonderland nature of this pronouncement is not lost on me; but after careful and extensive consideration, I find myself stuck in a paradoxical situation in which I cannot solve a problem because of contradictory constraints and rules — a veritable Catch-22. I can find no way around the thicket of laws and precedents that effectively allow the Executive Branch of our Government to proclaim as perfectly lawful certain actions that seem on their face incompatible with our Constitution and laws, while keeping the reasons for their conclusion a secret.”
How to Make Enemies and Not Influence People
It is not just the precedents set during the Obama era that will reverberate into the future, but also the lethal operations themselves. No one can scientifically predict the future consequences of drone strikes, cruise missile attacks, and night raids. But from my experience in several undeclared war zones across the globe, it seems clear that the United States is helping to breed a new generation of enemies in Somalia, Yemen, Pakistan, Afghanistan, and throughout the Muslim world.
Those whose loved ones were killed in drone strikes or cruise missile attacks or night raids will have a legitimate score to settle. In an October 2003 memo, written less than a year into the U.S. occupation of Iraq, Donald Rumsfeld framed the issue of whether the United States was “winning or losing the global war on terror” through one question: “Are we capturing, killing, or deterring and dissuading more terrorists every day than the madrassas and the radical clerics are recruiting, training, and deploying against us?”
More than a decade after 9/11, that question should be updated. At the end of the day, U.S. policymakers and the general public must all confront a more uncomfortable question: Are our own actions, carried out in the name of national security, making us less safe or more safe? Are they eliminating more enemies than they are inspiring? Boyle put it mildly when he observed that the kill program’s “adverse strategic effects… have not been properly weighed against the tactical gains associated with killing terrorists.”
In November 2012, President Obama remarked that “there’s no country on Earth that would tolerate missiles raining down on its citizens from outside its borders.” He made the statement in defense of Israel’s attack on Gaza, which was launched in the name of protecting itself from Hamas missile attacks. “We are fully supportive of Israel’s right to defend itself from missiles landing on people’s homes and workplaces and potentially killing civilians,” Obama continued. “And we will continue to support Israel’s right to defend itself.” How would people living in areas of Yemen, Somalia, or Pakistan that have been regularly targeted by U.S. drones or missile strikes view that statement?
Toward the end of President Obama’s first term in office, the Pentagon’s general counsel, Jeh Johnson, gave a major lecture at the Oxford Union in England. “If I had to summarize my job in one sentence: it is to ensure that everything our military and our Defense Department do is consistent with U.S. and international law,” Johnson said. “This includes the prior legal review of every military operation that the Secretary of Defense and the President must approve.”
As Johnson spoke, the British government was facing serious questions about its involvement in U.S. drone strikes. A legal case brought in the United Kingdom by the British son of a tribal leader killed in Pakistan alleged that British officials had served as “secondary parties to murder” by providing intelligence to the United States that allegedly led to the 2011 strike. A U.N. commission was preparing to launch an investigation into the expanding kill program, and new legal challenges were making their way through the U.S. court system. In his speech, Johnson presented the U.S. defense of its controversial counterterror policies:
“Some legal scholars and commentators in our country brand the detention by the military of members of al-Qaeda as ‘indefinite detention without charges.’ Some refer to targeted lethal force against known, identified individual members of al-Qaeda as ‘extrajudicial killing.’
“Viewed within the context of law enforcement or criminal justice, where no person is sentenced to death or prison without an indictment, an arraignment, and a trial before an impartial judge or jury, these characterizations might be understandable.
“Viewed within the context of conventional armed conflict — as they should be — capture, detention, and lethal force are traditional practices as old as armies.”
The Era of the Dirty War on Terror
In the end, the Obama administration’s defense of its expanding global wars boiled down to the assertion that it was in fact at war; that the authorities granted by the Congress to the Bush administration after 9/11 to pursue those responsible for the attacks justified the Obama administration’s ongoing strikes against “suspected militants” across the globe — some of whom were toddlers when the Twin Towers crumbled to the ground — more than a decade later.
The end result of the policies initiated under President Bush and continued and expanded under his Democratic successor was to bring the world to the dawn of a new age, the era of the Dirty War on Terror. As Boyle, the former Obama campaign counterterrorism adviser, asserted in early 2013, the U.S. drone program was “encouraging a new arms race for drones that will empower current and future rivals and lay the foundations for an international system that is increasingly violent.”
Today, decisions on who should live or die in the name of protecting America’s national security are made in secret, laws are interpreted by the president and his advisers behind closed doors, and no target is off-limits, including U.S. citizens. But the decisions made in Washington have implications far beyond their impact on the democratic system of checks and balances in the United States.
In January 2013, Ben Emmerson, the U.N. special rapporteur on counterterrorism and human rights, announced his investigation into drone strikes and targeted killing by the United States. In a statement launching the probe, he characterized the U.S. defense of its use of drones and targeted killings in other countries as “Western democracies… engaged in a global [war] against a stateless enemy, without geographical boundaries to the theatre of conflict, and without limit of time.” This position, he concluded, “is heavily disputed by most States, and by the majority of international lawyers outside the United States of America.”
At his inauguration in January 2013, Obama employed the rhetoric of internationalism. “We will defend our people and uphold our values through strength of arms and rule of law. We will show the courage to try and resolve our differences with other nations peacefully — not because we are naive about the dangers we face, but because engagement can more durably lift suspicion and fear,” the president declared. “America will remain the anchor of strong alliances in every corner of the globe; and we will renew those institutions that extend our capacity to manage crisis abroad, for no one has a greater stake in a peaceful world than its most powerful nation.”
Yet, as Obama embarked on his second term in office, the United States was once again at odds with the rest of the world on one of the central components of its foreign policy. The drone strike in Yemen the day Obama was sworn in served as a potent symbol of a reality that had been clearly established during his first four years in office: U.S. unilateralism and exceptionalism were not only bipartisan principles in Washington, but a permanent American institution. As large-scale military deployments wound down, the United States had simultaneously escalated its use of drones, cruise missiles, and Special Ops raids in an unprecedented number of countries. The war on terror had become a self-fulfilling prophecy.
The question all Americans must ask themselves lingers painfully: How does a war like this ever end?
Jeremy Scahill is national security correspondent for the Nation magazine and author of the New York Times bestsellers Blackwater: The Rise of the World’s Most Powerful Mercenary Army and most recently Dirty Wars: The World Is a Battlefield (both published by Nation Books). He is also the subject, producer, and writer of the film Dirty Wars, an official selection of the 2013 Sundance Film Festival, where it won the US documentary cinematography prize, nowavailable on DVD. This essay is the epilogue to his book Dirty Wars.
Follow TomDispatch on Twitter and join us on Facebook or Tumblr. Check out the newest Dispatch book, Nick Turse’s The Changing Face of Empire: Special Ops, Drones, Proxy Fighters, Secret Bases, and Cyberwarfare.
(c) 2013 Jeremy Scahill. Excerpted from Dirty Wars: The World Is A Battlefield (Nation Books). Used by permission of the author and publisher.
]]>via IPS News
Responding to growing criticism by human rights groups and foreign governments, U.S. President Barack Obama Thursday announced potentially significant shifts in what his predecessor called the “global war on terror”.
In a major policy address at the National Defense University here, Obama said drone strikes against [...]]]>
via IPS News
Responding to growing criticism by human rights groups and foreign governments, U.S. President Barack Obama Thursday announced potentially significant shifts in what his predecessor called the “global war on terror”.
In a major policy address at the National Defense University here, Obama said drone strikes against terrorist suspects abroad will be carried out under substantially more limited conditions than during his first term in office.
He also renewed his drive to close the U.S. detention facility at Guantanamo Bay, Cuba, which currently only holds 166 prisoners.
In particular, he announced the lifting of a three-year-old moratorium on repatriating Yemeni detainees to their homeland and the appointment in the near future of senior officials at both the State Department and the Pentagon to expedite the transfer the 30 other prisoners who have been cleared for release to third countries.
In addition, he said he will press Congress to amend and ultimately repeal its 2001 Authorization to Use Military Force (AUMF) against Al-Qaeda and others deemed responsible for the 9/11 attacks “(in order) to determine how we can continue to fight terrorists without keeping America on a perpetual war-time footing.”
The AUMF created the legal basis for most of the actions – and alleged excesses — by U.S. military and intelligence agencies against alleged terrorists and their supporters since 9/11.
“The AUMF is now nearly 12 years old. The Afghan War is coming to an end. Core Al-Qaeda is a shell of its former self,” he declared. “Groups like AQAP (Al-Qaeda in the Arabian Peninsula) must be dealt with, but in the years to come, not every collection of thugs that labels themselves Al-Qaeda will pose a credible threat to the United States.”
“Unless we discipline our thinking and our actions, we may be drawn into more wars we don’t need to fight, or continue to grant presidents unbound powers more suited for traditional armed conflicts between nation states,” he warned.
His remarks gained a cautious – if somewhat sceptical and impatient – welcome from some of the groups that have harshly criticised Obama’s for his failure to make a more decisive break with some of former President George W. Bush’s policies and to close Guantanamo, and his heavy first-term reliance on drone strikes against Al-Qaeda and other terrorist suspects.
“President Obama is right to say that we cannot be on a war footing forever – but the time to take our country off the global warpath and fully restore the rule of law is now, not at some indeterminate future point,” said Anthony Romero, executive director of the American Civil Liberties Union (ACLU).
Romero especially praised Obama’s initial moves to transfer detainees at Guantanamo but noted that he had failed to offer a plan to deal with those prisoners who are considered too dangerous to release but who cannot be tried in U.S. courts for lack of admissible evidence. He also called the new curbs on drone strikes “promising” but criticised Obama’s continued defence of targeted killings.
Obama’s speech came amidst growing controversy over his use of drone strikes in countries – particularly Pakistan, Yemen, and Somalia – with which the U.S. is not at war. Since 9/11, the U.S. has conducted more than 400 strikes in the three countries with a total death toll estimated to range between 3,300 and nearly 5,000, depending on the source. The vast majority of these strikes were carried out during Obama’s first term.
While top administration officials have claimed that almost all of the victims were suspected high-level terrorists, human rights groups, as well as local sources, have insisted that many civilian non-combatants – as well as low-level members of militant groups — have also been killed.
In a letter sent to Obama last month, some of the country’s leading human rights groups, including the ACLU, Amnesty International, and Human Rights First, questioned the legality of the criteria used by the Central Intelligence Agency (CIA) and the Pentagon’s Joint Special Operations Command (JSOC) to select targets.
Earlier this month, the legal adviser to former Secretary of State Hillary Clinton, Harold Koh, also criticised the administration for the lack of transparency and discipline surrounding the drone programme.
In his speech Thursday, Obama acknowledged the “wide gap” between his government and independent assessments of casualties, but he strongly defended the programme as effective, particularly in crippling Al-Qaeda’s Pakistan-based leadership, legal under the AUMF, and more humane than the alternative in that “(c)onventional airpower or missiles are far less precise than drones, and likely to cause more civilian casualties and local outrage.”
“To do nothing in the face of terrorist networks would invite far more civilian casualties – not just in our cities at home and facilities abroad, but also in the very places – like Sana’a and Kabul and Mogadishu – where terrorists seek a foothold,” he said.
According to a “Fact Sheet” released by the White House, lethal force can be used outside of areas of active hostilities when there is a “near certainty that a terrorist target who poses a continuing, imminent threat to U.S. persons” is present and that non-combatants will not be injured or killed. In addition, U.S. officials must determine that capture is not feasible and that local authorities cannot or will not effectively address the threat.
The fact sheet appeared to signal an end to so-called “signature strikes” that have been used against groups of men whose precise is identity is unknown but who, based on surveillance, are believed to be members of Al-Qaeda or affiliated groups.
If the target is a U.S. citizen, such as Anwar Awlaki, a U.S.-born cleric who the administration alleged had become an operational leader of AQAP and was killed in a 2011 drone strike in Yemen, Obama said there would be an additional layer of review and that he would engage Congress on the possibility of establishing a secret court or an independent oversight board in the executive branch.
On Wednesday, the Justice Department disclosed that three other U.S. citizens – none of whom were specifically targeted – have been killed in drone strikes outside Afghanistan.
On Guantanamo, where 102 of the 166 remaining detainees are participating in a three-month-old hunger strike, Obama said he would permit the 56 Yemenis there whose have been cleared for release to return home “on a case-by-case basis”. He also re-affirmed his determination to transfer all remaining detainees to super-max or military prisons on U.S. territory – a move that Congress has so far strongly resisted. He also said he would insist that every detainee have access to the courts to review their case.
In addition to addressing the festering drone issue and Guantanamo, however, the main thrust of Thursday’s speech appeared designed to mark what Obama called a “crossroads” in the struggle against Al-Qaeda and its affiliates and how the threat from them has changed.
“Lethal yet less capable Al-Qaeda affiliates. Threats to diplomatic facilities and businesses abroad. Homegrown extremists. This is the future of terrorism,” he said. “We must take these threats seriously, and do all we can to confront them. But as we shape our response, we have to recognise that the scale of this threat closely resembles the types of attacks we faced before 9/11.”
“Beyond Afghanistan,” he said later, “we must define our effort not as a boundless ‘global war on terror’ – but rather as a series of persistent, targeted efforts to dismantle specific networks of violent extremists that threaten America.”
Obama also disclosed he had signed a Presidential Policy Guidance Wednesday to codify the more restrictive guidelines governing the use of force.
White House officials who brief reporters before the speech suggested that, among other provisions, the Guidance called for gradually shifting responsibility for drone strikes and targeted killings from the CIA to the Pentagon – a reform long sought by human-rights groups.
]]>by James A. Russell
With the disappearance of war between developed states in the post-World War II era, policing intra-state violence on land and trying to punish so-called rogue states constitutes the main security problems facing the international community.
As the world’s sole military power capable of global power projection, many [...]]]>
by James A. Russell
With the disappearance of war between developed states in the post-World War II era, policing intra-state violence on land and trying to punish so-called rogue states constitutes the main security problems facing the international community.
As the world’s sole military power capable of global power projection, many of these problems invariably end up in America’s Inbox. The United States receives calls from various quarters for military intervention around the world in Syria, Iran, Mali and other global hotspots. These calls aren’t going away any time soon, despite this country’s exhaustion after a decade of war. But the world’s problems won’t wait while we lick our wounds and try to take a breather.
Intervention advocates invariably propose that we establish no-fly zones and/or launch our missile-armed drones over their areas of focus. They argue that policing people on the ground from 15,000 feet presents a low-cost, pain-free (at least for us) alternative to putting boots on the ground.
The western intervention in Libya is held up as an example of the benefits of this approach. However, as recent events there indicate, it’s clear that the struggle for political power in Libya has only just begun. The future direction of the country is at best uncertain.
The idea that the United States and its allies can police the world’s ruffians from above is dangerously misguided. It stems from repackaged failed ideas that have been repeatedly and unsuccessfully tried over the last century.
America’s love affair with shooting at the enemy from the sky above and the associated belief that the resulting destruction can somehow control politics on the ground goes back to the early 20th century, when strategists considered the potential benefits offered by airplanes as an instrument of war.
Western armies had fought to a bloody and protracted stalemate in World War I that slaughtered a generation on the fields of France, just as the airplane arrived to survey the carnage below. Shortly thereafter, Italian General Guilio Douhet offered his theories of airpower that cast the airplane as a revolutionary weapon that could destroy enemies on the ground invulnerable from attack. He believed the advent of airpower offered the prospect that armies might not have to close with one another in their bloody and awful embrace to achieve victory.
Douhet’s theories found favor with many, including General Hap Arnold, who then helped mastermind the allied strategic bombing campaign in World War II. Arnold spearheaded efforts to create the United States Air Force as a separate military service drawing upon Douhet’s concepts and adopting the broader mission of long-range strike warfare that, at the time, primarily involved dropping nuclear bombs on the Soviet Union.
But the proponents of bombing from above had several problems. The first was the accuracy of the bombs. As revealed in the Strategic Bombing Survey after World War II, it turned out that our bombers missed most of the military targets they were aiming at, belying one of the promises of airpower advocates. With a few exceptions, most of the military targets actually hit by allied bombers did little to impede Germany’s overall war effort.
Second, airpower advocates greatly miscalculated the political impact of the bombing raids on the enemy. Instead of undermining the enemy’s will to fight, bombing raids on civilian populations had the opposite effect. Hitler’s bombing of London strengthened England’s resolve. The allied campaign against German cities had a similar effect. Twenty years later, the United States unsuccessfully attempted to undermine North Vietnam’s commitment to conquer South Vietnam despite blasting away at the North with more bombs than had been dropped in all of World War II.
These broader lessons, however, were lost on American airpower strategists who were intent on cementing the institutional power of the Air Force and its budgets, and on building the “global strike” warfare complex that today is a centerpiece of the American military.
In the 1990s, advocates of the revolution in military affairs like Andy Marshall, the Pentagon’s long-time director of Net Assessments, argued that the digitization of the battlefield along with a new generation of stand-off weapons (including drones) had solved the accuracy problem, making it possible for us to destroy enemy targets with impunity from above while also minimizing the collateral damage and killing of innocent civilians. Like the airpower theorists of an earlier generation, they argued that the selective destruction of enemy targets from above meant that we didn’t have to close with our enemies on the ground in protracted and costly wars.
The United States unleashed the full force of its strike warfare complex in Afghanistan and Iraq to deadly effect. But the strike complex and its precision targeting from above did not end these wars quickly, and we discovered the hard way that there was no substitute for combat outposts manned by soldiers and marines in the countless and obscure nooks and crannies of these countries.
Moreover, despite the promise of these more accurate weapons, we still killed plenty of innocent civilians. Thousands of Iraqi and Afghan civilians were inadvertently killed in the crossfire between the United States and its enemies on the battlefield. As shown by McClatchey, drone strikes authorized by President Obama in Afghanistan and Pakistan have resulted in the deaths of scores of innocent people that had nothing to do with al-Qaeda.
Trying to deal with instability on the ground by flying around above it and/or firing down upon it is like pounding a square peg into a round hole. Civil wars are political disputes between parties that either can’t or won’t settle their differences peacefully. This is as true in Mali as it is Syria or anywhere else.
Those arguing for interventions in these disputes must in parallel decide which side to back. Who would we rather have in control in Syria? A Hezbollah/Iran-backed regime of Bashar al-Assad, or another militant version of the Muslim Brotherhood that might lay waste to Syria’s diverse ethnic and religious communities.
Intervention in these local disputes means picking a side and living with the consequences. It also means intervening on the ground with the Marines and/or the Army if we hope to shape the outcome of the struggle.
Our recent record in picking worthy winners in these wars is not great. The United States backed Nouri al-Maliki in Iraq — a choice that has had mixed results for American interests. We’ve backed Hamid Karzai in Afghanistan — a leader that has stolen millions of taxpayers dollars over the last decade and not attracted the political allegiance of Afghans despite our best efforts. What makes us think we’ll have any better luck picking a winner in Syria or anywhere else?
Policing recalcitrant states like Iran by shooting at it from above is a similarly hopeless endeavor. Repeated calls for what amounts to a protracted bombing campaign against Iran to delay its nuclear program are misguided and would only strengthen Iran’s resolve to build its own nuclear weapon. Alternatively, imposing our will on Iran by invasion and occupation is simply not worth the costs and out of the question politically.
These are the unfortunate realities of our 21st century security problems that cannot be answered by the theories of Douhet or the revolution in military affairs. Effective policing means ground intervention with enough force to impose our will on either the warring parties or on the recalcitrant state(s) and being prepared to accept the human, monetary, and strategic costs (as well as potential benefits!) of that action.
]]>by Wayne White
With a long history of misguided, damaging American intervention and meddling in the Middle East, the reported CIA effort to target the al-Nusra Front in Syria by helping Iraqi anti-terrorism units to attack its roots in Iraq seems to be the former and possibly destined to be the [...]]]>
by Wayne White
With a long history of misguided, damaging American intervention and meddling in the Middle East, the reported CIA effort to target the al-Nusra Front in Syria by helping Iraqi anti-terrorism units to attack its roots in Iraq seems to be the former and possibly destined to be the latter.
The Sunni Arab politics of Iraq, already complicated by the 2003 American invasion, have been further harmed by Prime Minister Nuri al-Maliki’s unremitting hostility toward Iraq’s Sunni Arab community. He and his Shi’a cronies bitterly opposed the American deal with Sunni Arab insurgents back in late 2006 through 2008, and attempted to undermine the arrangement while US-Sunni Arab Awakening efforts to take down much of al-Qaeda in Iraq (AQI) were in progress.
In the years since, Maliki has been rather consistent in his exclusion of the bulk of Iraq’s Sunni Arabs from the Baghdad political mainstream. He has driven away many of those who have sought or secured office using the machinery of so-called “de-Ba’thification” and has even purged, assassinated or arrested large numbers of former Awakening cadres as well as various other key Sunni Arabs, often on trumped up charges of terrorism (or no formal charges at all — frequently employing his own extrajudicial security forces or Iraq’s mainly Shi’a Anti-Terrorism Service, which answers directly to him).
In this context, it is hardly surprising that a robust measure of Sunni Arab extremism flourishes in Iraq (apparently more now than back in 2008 when most Sunni Arabs were, by contrast, relatively more war-weary and eager for some sort of enduring engagement with the government in Baghdad). Resentment over Maliki’s disinterest in anything that would re-integrate Iraq’s Sunni Arab minority into much of the country’s core activities has done a lot to sustain a drumfire of AQI bombings inside Iraq and, since late 2011, sent gaggles of Islamic fighters from Iraq’s Sunni Arab northwest into the raging battle for Syria.
Al-Nusra probably is to a large extent an arm of AQI, as the US alleges, but also could be the recipient of many Iraqi fighters simply enraged over the plight of Sunni Arabs in their own country more generally. Additionally, there are quite a few historic tribal and family connections that extend far beyond the Syrian-Iraqi border, making events in Syria that much more palpably personal for quite a few Sunni Arabs inside Iraq.
So al-Nusra most likely is more than an organization; a phenomenon welling up from the profound resentment among many Sunni Arabs toward hostile political orders in both countries. If so, that’s not something that can be surgically extracted. Unfortunately, there always is the possibility that somewhere down the road a frustrated Washington (after Baghdad inevitably fails to address al-Nusra, just as it has been unable to deal a crippling blow to AQI) might think drones offer such a capability. If, however, they ever were employed over Sunni Arab areas of Iraq, the anger currently aimed primarily at the Maliki government and the Assad regime would become far more focused on the US.
Al-Nusra clearly is an unwelcome and dangerous player on the opposition side amidst the fighting in Syria. Yet, the sheer length, brutality, mass destruction, horrific casualties and more than a million refugees generated by the violence so far, predictably have rendered more extreme certain elements of the opposition. The seeming rise in regime-like rebel atrocities most likely is linked to some extent to the duration of the carnage.
The US already has become unpopular in broad Syrian opposition and popular circles for not providing desperately needed military assistance. At first, this frustration centered upon frantic requests for a US/NATO no fly zone over Syria. Since hope for that evaporated, attention shifted to arms and ammunition needed by rebels to take on regime-armored vehicles and air power. Some oppositionists in Syria may understand why the US remains wary of providing surface to air missiles that could very well fall into the hands of international terrorist groups, but anti-tank rockets are less of a concern in that respect. Yet, Washington decided not to send any arms whatsoever to opposition fighters — even vetted ones — late last summer and once again recently.
The US designation of al-Nusra as a terrorist group does not appear to have reduced that group’s high military profile as the tip of the opposition’s combat spear against the forces of the Assad regime. And involving the US in a campaign against al-Nusra’s support base in Iraq now could easily be perceived more broadly as being anti-Sunni Arab. After all, many of Iraq’s Sunni Arabs might ask pointedly why the US has chosen not to take a stronger stand against Maliki’s ongoing persecution of and human rights violations against Iraq’s Sunni Arab community — concerns that extend far beyond AQI and its supporters.
Iraq essentially remains in a state of sectarian conflict with Maliki playing the leading role as provocateur. The opposition effort to take down the Assad regime in Syria also has become, in large measure, a sectarian conflict.
By doing little to cross Maliki about his mistreatment of Sunni Arabs, going after al-Nusra in Iraq and providing meager support to the Syrian opposition, Washington potentially is setting itself up to be viewed — at least by Sunni Arab participants in these struggles — as anti-Sunni Arab across much of the greater Arab al-Jazira region as well as the northern Levant. The US faces enough grievances in the region as it is. Why add more to the list?
]]>by Henry Precht
Two US service members were killed and at least eight others injured Monday in an insider attack at a Special Forces site in Afghanistan. The Taliban asserted responsibility. This incident would seem to nullify President Hamid Karzai’s earlier charge that US and Taliban forces were colluding [...]]]>
by Henry Precht
Two US service members were killed and at least eight others injured Monday in an insider attack at a Special Forces site in Afghanistan. The Taliban asserted responsibility. This incident would seem to nullify President Hamid Karzai’s earlier charge that US and Taliban forces were colluding to bring down his government.
The incident — and Karzai’s outburst — certainly did nothing to alter President Barak Obama’s determination to close out our war against al Qaeda and their former hosts and rulers of Afghanistan, the Taliban. By December 2014, the White House has said, our combat operations will have withdrawn and the Afghan government will be more or less on its own. How is this end game to be managed? Perhaps speaking for himself, the top general for the region, Gen. James N. Mattis, told Congress last week that 20,000 troops should remain after 2014.
I asked two experts separately for their views. One served in Afghanistan in the 1960s as a political counselor and the other returned last year from a lengthy assignment that included a period as deputy ambassador.
Here’s what the old timer had to say:
By December 2014 we will have done about all that can be accomplished with regard to (1) al Qaeda (the reason we went into Afghanistan in 2001) and (2) the Taliban insurgency — without the full support of Pakistan. That country’s tribal belt along the Afghan border provides rest and training for both of our adversaries. Our forces, particularly the Marines in Kandahar Province, have badly injured the Taliban and drone attacks have decimated al Qaeda’s leadership which has largely refocused its activities in the Yemen and East and North Africa. The remaining task for our forces is strictly training of the Afghan army and other security forces. Before that can be a reality, however, the Afghan government will have to give American troops (perhaps up to 10,000) legal immunity under a Status of Forces Agreement (SOFA) that the Loya Jirga (a national assembly) must pass. Inevitably, our presence has started to rankle many Afghans, some of whom view us as another occupation force like so many in their history. The Loya Jirga’s debate and vote will be a fateful decision on how we are now perceived by the Afghan people, how confident they are that they alone can successfully contend with the Taliban and handle all the conflicts and rivalries in what is still a very traditional and tribal society.
Turning to the new boy:
The number of our troops who remain should be governed by their missions (and by the SOFA we manage to negotiate with the Afghan government). I see two missions for the post-2014 US military presence: training the Afghan National Army and counterterrorism (going after al Qaeda remnants.)
As the most recent casualty figures reflect, the Afghan Army has taken over the great bulk of the fighting. But they will still need our training, mentoring and assistance in several “high end,” “enabler” areas as the US military likes to call them: medical response, search and rescue, intelligence and its exploitation, logistics, high end equipment maintenance, their fledgling air force and — most important — civilian casualty avoidance. (We have learned a lot in this area.) The Brits, Italians, Germans, Lithuanians and others all have niche expertise to apply to this project, but we have to lead and coordinate with the Afghan government.
Numbers? I’m not a military expert, but would guess that somewhere between 10 and 20,000 will be necessary. They should be based in a few regional centers around the country for economies of effort and Afghan public perceptions.
Civilian complementarity: It’s absolutely essential that we NOT cut back to the bone our USG civilian programs in development, good governance and justice and exchanges as our military presence substantially declines. Even with all the nation’s corruption and poor governance, much social and economic progress, as well as human rights advances especially for Afghan women, has been made these past 12 years. As we have learned in other trouble spots: “there’s no security without development and no development without security.” A leaner but still robust US civilian presence and programs will do much to reassure very anxious Afghans, some of whom are still fence-sitters. Afghans have long memories, and while Afghanistan has changed much since the Soviet withdrawal, some draw parallels. Perceptions matter.
What about Pakistan? — insurgent safe haven, role in the emerging peace process involving the Taliban, the Talibanization of some parts of its territory, nuclear weapons, relationship with India — all matter tremendously, especially for Afghan prospects, but that’s a subject for another day.
There you have it, facts and informed opinions to chew on as the debate over our role in Afghanistan rumbles and rattles on in Washington. Left out of these Foreign Service judgments are any discussion about what American public opinion will tolerate and, perhaps most important, what price for continued engagement our budget will support.
Photo: President Barack Obama and President Hamid Karzai of Afghanistan participate in a bilateral meeting in the Oval Office, Jan. 11, 2013. Dr. Rangin Dadfar Spanta, Afghan National Security Advisor, left, and National Security Advisor Tom Donilon, attend. (Official White House Photo by Pete Souza)
]]>by James A. Russell
The confirmation hearings of John Brennan for director of the Central Intelligence Agency serve as the latest searing reminder of the intellectual rigamortis gripping the national security establishment and how brain dead we have become as a country in addressing strategy and strategic issues.
The sole focus [...]]]>
by James A. Russell
The confirmation hearings of John Brennan for director of the Central Intelligence Agency serve as the latest searing reminder of the intellectual rigamortis gripping the national security establishment and how brain dead we have become as a country in addressing strategy and strategic issues.
The sole focus of these hearings has been the country’s ongoing love affair with targeted assassinations carried out by drones against our Islamic extremist adversaries.
Instead of engaging in a real debate over the efficacy of these assassinations as an element of counter-terrorism strategy, we are left with the voices of Republicans who see nothing wrong with the state drawing up its monthly assassination lists and those of Democrats who worry about civil rights issues and want judges to review who the government proposes to assassinate each month.
If ever there was an example of tactics in search of a strategy, this is it. Sadly, this is only the latest example of the national security establishment confusing the two.
This country has witnessed the substitution of tactics for strategy during the last decade as a series of military and civilian leaders have trumpeted the benefits of “counterinsurgency strategy” as the correct approach to our wars in Iraq and Afghanistan. Yet counterinsurgency is nothing more than a tactical approach on the battlefield, which, by the way, has mostly failed miserably when attempted by western militaries over the last century. It is not a strategy.
Killing terrorists by whatever means is also tactics masquerading as strategy — just like counterinsurgency. Our focus on assassinating suspected terrorist foes both by hellfire missiles from above and by Special Forces kicking in doors on the ground in fact reflects a specific approach to counter-terrorism called leadership decapitation. You won’t hear this mentioned in the hearings — but this is the strategic issue under discussion, without, of course, being discussed.
Leadership decapitation as a strategy is short-sighted, bound to ultimately fail, and may in fact increase threats to our country. What is the evidence to support this assertion and where has leadership decapitation been tried? The answer exists in almost every irregular war undertaken by occupying armies over the last century. The French perfected the technique during their occupation of Algeria in one celebrated example, though that war didn’t turn out well for them. Another current day example is Israel, which has routinely assassinated its adversaries in its futile attempt to prevent terrorist attacks over the last 60 years. Just as the French could not kill their way to victory in Algeria, Israel cannot kill its way to peace and security.
Although you might not realize it, the United States is by far the greatest modern day practitioner of leadership decapitation. How has this strategy worked out for us and why isn’t Brennan being asked about it in his confirmation hearings?
I recall sitting in on a briefing in Afghanistan back in 2010 and seeing the obligatory power point slide with all the red “X’s” through the Taliban’s leadership structure in the province I was visiting. Stupidly, of course, I mentioned to the briefer: “Well, we must be winning, then.” He laughed and responded: “You could have shown up here for every year for the last few years and seen the exact same slide. They just keep coming back.”
Therein lies the problem. The US has implemented the tactic of leadership decapitation on an industrial scale in Afghanistan over the last three years under the military leadership of General Stanley McChrystal and then his successor, David Petraeus. Both unleashed the Joint Special Operations Command (JSOC) in Afghanistan just as they did in Iraq. In Iraq during 2007 and 2008, JSOC killed many Iraqis, which helped cover the US retreat but that’s about it. JSOC teams and the CIA drone mavens have also killed a lot of the Taliban, but has the Taliban given up?
Setting aside the moral and ethical issues related to state assassinations of people without due process, the broader strategic issue remains — we can’t kill our way out of disputes with Islamic militants that are currently on the receiving end of our hellfire missiles. They will keep coming back until a political settlement is reached or until they are all dead. Since we can’t kill them all, the war will go on.
Still worse, by intervening in what are essentially local political disputes in countries like Yemen, Mali and Afghanistan, we run the risk of provoking exactly the kind of attacks against us that we are supposed to be trying to forestall.
Leadership decapitation is a prescription for never ending war, which may be useful for political purposes in some US quarters (like it is in Israel), but remains a terrible strategy. Just ask the Israelis how it has worked out for them. Despite the comforting illusion of the cost-free, push-button war offered by our standoff drone strikes and our darkly clad soldiers jumping out of helicopters to gun down suspected terrorists, we are playing a dangerous game that may only increase threats to this country.
As much as we might want to believe otherwise, there is no military solution to the political problem of extremist violence. It is a square peg being inserted into a round hole. Al Qaeda-inspired militancy around the Islamic world is at heart a violent protest against modernity that commands no broadly based popular political support. Do we see Saudi citizens (or any citizens, anywhere, for that matter) mounting the barricades in a revolution supporting Al Qaeda’s call for a return to the caliphate? We should let Al Qaeda die its natural death. If anything, America’s military interventions in the developing world have prolonged the relevance of the handful of militants flocking to this banner.
At the very least, sound strategic thinking would deliver us the kind of debate that is so desperately needed on the strategic choices facing this country as we try to decide how best to protect ourselves. The recent confirmation hearings offered us the chance to explore these issues, but the silence from both the executive and legislative branches is deafening.
This country is tumbling into a de facto era of apparently endless drone wars with no critical assessment or alternative views being offered. It’s hard not to draw the parallel to Joseph Conrad’s Heart of Darkness, with the United States ceaselessly lobbing missiles into an unpoliceable, dark, and impenetrable interior just as the ship did in Conrad’s story — firing away futilely at unseen targets in a world gone mad.
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