Obama, Pakistan, and the Rule of Law May 14, 2009Posted by rogerhollander in Barack Obama, Pakistan, War.
Tags: al-Qaeda, civilian casualties, extrajudicial killings, geneva conventions, hellfire missile, nuremberg, nuremberg trial, nuremburg charter, pakistan, pakistan air strikes, pakistan civilian casualties, pakistan missiles, pakistani civilians, peter dyer, president obama, roger hollander, rule of law, transparency, u.n. charter, War Crimes, war on terror
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“Our Founding Fathers, faced with perils that we can scarcely imagine, drafted a charter to assure the rule of law and the rights of man — a charter expanded by the blood of generations. Those ideals still light the world, and we will not give them up for expedience sake.”
In his first full day in office President Obama said: “Transparency and the rule of law will be the touchstones of this administration.” The remarkable campaign and inspiring oratory of the first African-American to be elected to the planet’s most powerful public office sparked worldwide optimism and hope for new and creative approaches to serious national and international challenges. Two days later, on Jan. 23, the CIA launched two missile attacks on Pakistan. Fifteen people in Waziristan, in Pakistan’s Northwest Frontier Province, were killed by Hellfire missiles launched from unmanned drones.
The attacks were the latest in a series that began several years earlier and intensified in 2008.
As such, despite the Obama campaign mantra, “Change We Can Believe In,” they represented the President’s commitment to a critical component of the Bush administration’s foreign and military policy: expansion of what George W. Bush dubbed the “global war on terror” – from one key theater of the GWOT in Afghanistan across the border into Pakistan.
The attacks are ostensibly aimed at leaders of al-Qaeda who are blamed for the 9/11 terrorist attacks on New York and Washington, and at Taliban militants who slip across the Afghan border to attack U.S., NATO and Afghan government forces.
Candidate Obama outlined his position in a hawkish address at the Woodrow Wilson Center in Washington on Aug. 1, 2007. He said:
“Al-Qaeda terrorists train, travel, and maintain global communications in this safe haven. The Taliban pursues a hit-and-run strategy, striking in Afghanistan, then skulking across the border to safety. This is the wild frontier of our globalized world. …
“But let me make this clear. There are terrorists holed up in those mountains who murdered 3,000 Americans. They are plotting to strike again. … If we have actionable intelligence about high-value terrorist targets and [Pakistan's leader] won’t act, we will.”
Since the start of the Obama administration about 170 people have been killed inside Pakistan in at least 17 of these attacks. The Pakistan newspaper, “The News,” says the great majority have been civilians.
For many, the killings have thrown a shadow over early hopes for new thinking about Bush’s GWOT, which the Obama administration rebranded as the “Overseas Contingency Operation.”
The missile attacks indicate, as well, that President Obama’s perspective on the rule of law may have less in common with the uplifting eloquence of January than with the disdain consistently displayed during the previous eight years by his predecessor in the Oval Office.
Killing people in Pakistan with Hellfire missiles is against the law.
The attacks violate the Geneva Conventions, the International Covenant on Political and Civil Rights, the United Nations Charter, UN General Assembly Resolution #3314 and the Nuremberg Charter.
Even when the missiles hit their intended targets in Pakistan, the orders to fire are given from thousands of miles away by CIA officials watching on computer screens in North America. CIA teams sit, in effect, as collective judge, jury and executioner.
Protocol II, Article 6(2) of the Geneva Conventions says: “No sentence shall be passed and no penalty shall be executed on a person found guilty of an offence except pursuant to a conviction pronounced by a court offering the essential guarantees of independence and impartiality.”
The 170 or so people who have been killed by Hellfire missiles in Pakistan since Inauguration Day represent 170 extrajudicial killings – outlawed not only by the Geneva Conventions but by the International Covenant on Civil and Political Rights: Article 6(1): “Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life.”
Article 6(2): Sentence of death “can only be carried out pursuant to a final judgment rendered by a competent court.
Unless the Pakistani government has invited the United States to fire missiles into Pakistan, the attacks violate the United Nations Charter Article 2(4): “All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.”
Perhaps the most far-reaching aspect of the illegality of the drone attacks is that each is an act of aggression. The United Nations Definition of Aggression, General Assembly Resolution #3314, provides a list of acts defined as aggression, including Article 3(b): “Bombardment by the armed forces of a State against the territory of another State or the use of any weapons by a State against the territory of another State.” Article 5 makes it clear — aggression is never legal: “No consideration of whatever nature, whether political, economic, military or otherwise may serve as a justification for aggression.”
This was the position of the Tribunal at the first Nuremberg Trial. At Nuremberg 22 of the most prominent Nazis were tried for war crimes, crimes against peace (aggression), crimes against humanity and conspiracy following World War II.
In the judgment the Tribunal left no doubt as to the enormity of the crime of aggression, labeling it “the supreme international crime differing only from other war crimes in that it contains within itself the accumulated evil of the whole.”
Eight German leaders were convicted of aggression at Nuremberg. Five of these received death sentences.
Certainly the scale of American aggression in Pakistan is small compared to that of German aggression in World War II.
But how many civilian deaths, destroyed homes and summary executions does it take for the firing of remote-controlled missiles into Pakistan to qualify as a crime?
It’s not as if there is a lack of compelling and creative alternative visions being proposed by smart people with experience in and knowledge of the region.
For example, as recently reported in The Nation, Akbar Ahmed, former High Commissioner from Pakistan to the UK emphatically told the Congressional Progressive Caucus on May 5 that the best strategy in Pakistan is to work through tribal organizations and networks. He emphasized aid, education and the certain failure of an approach that is primarily military: “The one thing every Pakistani wants for his kids is education…. Within one to three years you will turn that entire region around. The greatest enemies of the Americans will become their allies.” In the book outlining Barack Obama’s vision, Change We Can Believe In — Barack Obama’s Plan to Renew America’s Promise, are these words (p. 104) “To seize this moment in our nation’s history, the old solutions will not do. An outdated mind-set which believes we can overcome these challenges by fighting the last war will not make America safe and secure.”
Unfortunately, in its first few months the Obama administration has been fighting the last President’s war. As far as Pakistan is concerned, neither the President’s foreign policy nor his perspective on the rule of law seem to be materially different from those of President Bush. However, President Obama apparently is now “re-evaluating” the missile strikes, in light of their widespread unpopularity in Pakistan and the threat to the survival of Pakistan’s government.
Perhaps now is a good time to look for an approach that is both legal and more effective in the long term than extra-judicial killings of Taliban militants, al-Qaeda extremists and Pakistani civilians.
Perhaps this is an opportunity for change we can believe in.
Tags: congress, constitution, crimes against humanity, Criminal Justice, cynthia boaz, Dick Cheney, extraordinary rendition, ford, George Bush, george stephanopoulos, gonzales, high crimes, International law, Iraq invasion, justice, justice committee, nixon, nuremberg, nuremberg principle, nuremberg trial, ollie north, president obama, reagan, reconciliation, retribution, roger hollander, rule of law, rumsfeld, special prosecutor, torture, truth commission, us attorney, War Crimes, weinberger, wiretapping, wolfowitz
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by Roger Hollander
www.rogerhollander.wordpress.com, February 19, 2009
(SEE UPDATE BELOW)
An essay entitled “Obama’s Justice: Reconciliation Not Retribution” appeared recently in the progressive online journal, Truthout.com (http://www.truthout.org/021809J). Its author is Cynthia Boaz, assistant professor of political science at Sonoma State University, who is described as a specialist “in political development, quality of democracy and nonviolent struggle.”
Professor Boaz’s approach was most annoying in that she felt the need to set up a straw man (the notion that those who want justice want it for purposes of retribution) and resort to the ad hominem by characterizing those who are pushing for investigations and prosecution of the Bush era crimes as “disgruntled, self-identified progressives” and comparing them to “villagers wielding torches and pitchforks.”
But such annoyances pale in light of the implication of her thesis in support of Obama as a “unifier,” and his mission of “reconciliation, not retribution” in an attempt to justify Obama’s oxymoronic and disingenuous statement that he believes in the rule of law but would rather look forward rather than backward.
(To her credit Professor Boaz acknowledges that the Bush administration may have committed misdeeds “which in some cases, rise to the level of crimes against humanity” and does not argue that they should not be brought to justice. Her point is that justice should not be politicized, that the president should not seek “retribution” for his predecessor)
In the real world justice in fact usually occurs in a political context – especially when crimes occur at the higher levels of government. Obama recognizes this and his remarks to George Stephanopoulos were in response to overwhelming public sentiment for him to appoint a special prosecutor as reflected in his transition sounding exercise. Presidents do appoint Special Prosecutors and the United States Attorney General. Presidents grant pardons, often controversial and often of a political nature (Ford/Nixon; Reagan/Weinberger, North, Irangate). The political and the judicial are indeed intertwined.
Talking about “reconciliation” and “looking forward rather than backward” is in itself a blatant political intrusion in the world of justice. If Obama were not signaling to the heads of the Justice Committees in both houses of Congress (and the American people) that he would prefer for them to back off, then he simply would have affirmed his commitment to the rule of law and left it at that.
The evidence that is already in the public domain with respect to the knowingly false pretense for the invasion of Iraq, the high level authorization of torture, the extraordinary renditions, the wiretapping, the U.S. Attorney firings, etc. is so overwhelming that – in spite of the sacred principle of “innocent until proven guilty” – the American and world public cannot be faulted for demanding that the Nuremberg principles be applied to the neo-fascist Bush clique. That former Vice President Cheney, who is universally considered to have been the Bush administration Godfather, has been making the rounds boasting about his role in committing in effect what are crimes against humanity, constitutes an open challenge to anyone who takes the rule of law seriously. Given the literally millions of human beings whose lives have been destroyed or seriously debilitated by the actions of the Bush administration and the gross violations of constitutional and international law, the imperative for speedy justice within the context of due process is overwhelming.
What I fear is some kind of Truth Commission based on the premise of giving immunity for the sake of getting the truth out. This, I believe, is what Obama was getting at with his “looking forward” remark and what Professor Boaz would like to see. Such a notion mocks the concept and dignity of Justice. It gives no closure to those who have suffered at the hands of high level war criminals and it has little or no deterrent effect. What it is is politically expedient.
Do I expect to ever see Bush, Cheney, Rumsfeld, Gonzales, Wolfowitz et. al. in a United States court of law charged with high crimes? Honestly I do not (but I didn’t ever expect to see the election of an Afro-American president in my lifetime either). But genuine truth, reconciliation and justice demand that such high crimes be investigated and prosecuted; those who suffered deserve justice; and the future of what is left of constitutional democracy is worth fighting for.
What is more, if President Barak Obama or anyone else acts in any way to impede or frustrate the carrying out of justice, they become to some extent complicit with the principal perpetuators.
UPDATE (May 1, 2009)
There has been a lot of -pardon the pun - wate(boarding) under the bridge since I wrote this piece in mid February. If you surf around my Blog or the many Blogs I post on it, you will find dozens if not hundreds of articles on the issue of torture and criminal responsibility for it. Just today, for example, I posted an excellent article by Glenn Greenwald that appeared in salon.com which documented the words of, of all people, Ronald Reagan, who, in introducing the law that made torture a serious crime in the United States, states that torture is a crime, with no exception for extraordinary circumstances (including, presumably, the phony “ticking time bomb” scenario). Ronald Reagan!
Professor Boaz, who is the target of my criticism in the original article above, had argued that those of us demanding that now President Obama take criminal action against the Torturers were misunderstanding the role of the presidency. Investigation and criminal prosecution in the bailiwick of the Judicial System, not the presidency she tells us. I wonder what she is thinking now that President Obama has heard, tried and exonerated the CIA agents who carried out the war crime known as torture.
During the longest eight years in history that we lived through under Bush/Cheney, one felt that what was happening as if it were in the realm of the surreal. Anti-war election results, and the war escalates (excuse me, surges). Torture with impunity. Habeas Corpus out the window. Warrantless wiretapping. An ideologically politicized Justice Department. Signing Statements allowing the President to ignore laws passed by Congress. Dr. Strangeglove figures such as Rumsfeld, Wolfowitz, Rice, Gonzales; and Darth Vader himself disguised as Dick Cheney, bunker and all.
May the goddess help me, I am having the same surrealistic dizziness all over again. The Attorney General declares that waterboarding is torture. Torture is a crime. Therefore … do nothing about it. The President releases evidence in the form of the infamous torture memos that, that along with photographic and other (International Red Cross, for example) evidence, leaves no doubt about the nature and extent of the torture; and then he proceeds to grant amnesty to those who committed the crimes. They were only following orders, he says, as the Nuremburg amnesia sets in alongside the swine flu. Pelosi and Reid want investigations … in secret (!). The mainstream media, as it did under Bush/Cheney, plays along with the Alice in Wonderland fantasies, and the maniacs on the neo-Fascist Right have convinced a signficant percentage of Americans that torture is not a crime under “certain circumstances.” The torture memos written by John Yoo and Jay Bybee are so patently phony and Kafkesque that Yoo is invited to teach law in Orange County and Bybee is made a Federal Judge.
It has been suggested that President Obama doesn’t feel there is the political will to prosecute the war criminals, which is why he has been so wishy-washy, but that he has released the tortue memos and is soon to release more photos as a way to achieve that will. I don’t believe this, but that doesn’t matter. Only by latching on to the the issue like a pit bull and refusing to let go can we who believe in Decency and Justice bring the American War Criminals to justice.