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ACLU sues Obama administration over assassination secrecy February 2, 2012

Posted by rogerhollander in Barack Obama, Civil Liberties, Criminal Justice, Human Rights, War on Terror.
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Roger’s note: Here is a breath of fresh air for Tricky Dick Nixon as he boils in Hell .  His infamous “if the president does it it’s legal,” thanks to Bush and Obama, is now the law of the land.

The President boasts in public about his executions, then hides behind secrecy claims to shield it from the law

By Glenn Greenwald, www.salon.com, February 2, 2012

Barack Obama

President Barack Obama walks to Marine One on the South Lawn of the White House in Washington, Wednesday, Jan. 25, 2012.  (AP Photo/Evan Vucci)  (Credit: AP)

(updated below)

The ACLU yesterday filed a lawsuit against various agencies of the Obama administration — the Justice and Defense Departments and the CIA — over their refusal to disclose any information about the assassination of American citizens. In October, the ACLU filed a FOIA request demanding disclosure of the most basic information about the CIA’s killing of 3 American citizens in Yemen: Anwar Awlaki and Samir Khan, killed by missiles fired by a U.S. drone in September, and Awlaki’s 16-year-old son, Abdulrahman, killed by another drone attack two weeks later.

The ACLU’s FOIA request sought merely to learn the legal and factual basis for these killings — meaning: tell us what legal theories you’ve adopted to secretly target U.S. citizens for execution, and what factual basis did you have to launch these specific strikes? The DOJ and CIA responded not only by refusing to provide any of this information, but refused even to confirm if any of the requested documents exist; in other words, as the ACLU put it yesterday, “these agencies are saying the targeted killing program is so secret that they can’t even acknowledge that it exists.” That refusal is what prompted yesterday’s lawsuit (in December, the New York Times also sued the Obama administration after it failed to produce DOJ legal memoranda “justifying” the assassination program in response to a FOIA request from reporters Charlie Savage and Scott Shane, but the ACLU’s lawsuit seeks disclosure of both the legal and factual bases for these executions).

From a certain perspective, there’s really only one point worth making about all of this: if you think about it, it is warped beyond belief that the ACLU has to sue the U.S. Government in order to force it to disclose its claimed legal and factual bases for assassinating U.S. citizens without charges, trial or due process of any kind. It’s extraordinary enough that the Obama administration is secretly targeting citizens for execution-by-CIA; that they refuse even to account for what they are doing — even to the point of refusing to disclose their legal reasoning as to why they think the President possesses this power — is just mind-boggling. Truly: what more tyrannical power is there than for a government to target its own citizens for death — in total secrecy and with no checks — and then insist on the right to do so without even having to explain its legal and factual rationale for what it is doing? Could you even imagine what the U.S. Government and its media supporters would be saying about any other non-client-state country that asserted and exercised this power?

But there’s one abuse that deserves special attention here: namely, the way in which the Obama administration manipulates and exploits its secrecy powers. Here is what the DOJ said to the ACLU about why it will not merely withhold all records, but will refuse even to confirm or deny whether any such records exist:

So the Most Transparent Administration Ever™ refuses even to confirm or deny if there is an assassination program, or if it played any role in the execution of these three Americans, because even that most elementary information is classified.

What makes this assertion so inexcusable — beyond its inherently and self-evidently anti-democratic nature — is that the Obama administration constantly boasts in public about this very same program when doing so is politically beneficial for the President. The day Awlaki was killed, the President himself began a White House ceremony by announcing Awlaki’s death, trumpeting it as “a major blow to al Qaeda’s most active operational affiliate,” boasting that “the death of al-Awlaki marks another significant milestone in the broader effort to defeat al Qaeda and its affiliate,” and then patting himself on the back one last time: “this success is a tribute to our intelligence community.” Here’s how Obama hailed himself for the Awlaki killing on The Tonight Show with Jay Leno:

THE PRESIDENT: But al Qaeda is weaker than anytime in recent memory. We have taken out their top leadership position. That’s been a big accomplishment.

(Applause.)

JAY LENO: Can I ask you about taking out their top leadership, al-Awlaki, this guy, American-born terrorist? How important was he to al Qaeda?

THE PRESIDENT: Do you — what happened was we put so much pressure on al Qaeda in the Afghan/Pakistan region –

JAY LENO: Right.

THE PRESIDENT: — that their affiliates were actually becoming more of a threat to the United States. So Awlaki was their head of external operations. This is the guy that inspired and helped to facilitate the Christmas Day bomber. This is a guy who was actively planning a whole range of operations here in the homeland and was focused on the homeland. And so this was probably the most important al Qaeda threat that was out there after Bin Laden was taken out, and it was important that working with the enemies, we were able to remove him from the field.

(Applause.)

Earlier this week, Defense Secretary Leon Panetta went on 60 Minutes and described the process by which U.S. citizens are targeted for assassination: “the President of the United States has to sign off and he should.” Obama officials have repeatedly gone to the media anonymously to make claims about Awlaki’s guilt and to justify their assassination program. Here is one “senior administration lawyer” — cowardly hiding behind anonymity — responding to my criticisms and justifying the assassination program to Benjamin Wittes (who naturally protected him from being identified). When I spoke at an NYU Law School event in 2010 and criticized what was then the Awlaki assassination attempt while sitting next to FBI Counter-Terrorism official Niall Brennan, NPR’s national security reporter, Dina Temple-Raston, stood up and revealed that Obama officials had secretly shown her snippets of evidence to demonstrate that Awlaki was involved in actual Terrorist plots.

So Obama can go on TV shows and trigger applause for himself by boasting of the Awlaki killing. He can publicly accuse Awlaki of all sorts of crimes for which there has been no evidence presented. He can dispatch his aides to anonymously brag in newspapers about all the secret evidence showing Awlaki’s guilt and showing how resolute and tough the President is for ordering him executed. Justice Department and Pentagon officials scamper around in the dark flashing snippets of evidence about Awlaki to reporters like Temple-Raston so that they dutifully march forward to defend the government’s assassination program. Obama officials will anonymously insist in public that they have legal authority to target citizens for killing without trial.

But when it comes time to account in a court or under the law for the legal authority and factual basis for what they have done — in other words, when it comes time to demonstrate that they are actually acting legally when doing it — then, suddenly, everything changes. When they face the rule of law, then the program is so profoundly classified that it cannot be spoken of at all — indeed, the administration cannot even confirm or deny that it exists — and it therefore cannot be scrutinized by courts at all.

Worse, they not only invoke these secrecy claims to avoid the ACLU and NYT‘s FOIA requests, but they also invoked it when Awlaki’s father sued them and asked a court to prevent President Obama from executing his son without a trial. When forced to justify their assassination program in court, the Obama DOJ insisted that the program was so secretive that it could not even safely confirm that it existed — it’s a state secret – and thus no court could or should review its legality (see p.43 of the DOJ’s brief and Panetta’s Affidavit in the Awlaki lawsuit). As the ACLU said yesterday:

The government’s self-serving attitude toward transparency and disclosure is unacceptable. Officials cannot be allowed to release bits of information about the targeted killing program when they think it will bolster their position, but refuse even to confirm the existence of a targeted killing program when organizations like the ACLU or journalists file FOIA requests in the service of real transparency and accountability.

This selective, manipulative abuse of secrecy reveals its true purpose. It has nothing to do with protecting national security; that’s proven by the Obama administration’s eagerness to boast about the program publicly and to glorify it when it helps the President politically. The secrecy instead has everything to do with (1) preventing facts that would be politically harmful from being revealed to the American public, and (2) shielding the President’s conduct from judicial review. And this cynical abuse of secrecy powers extends far beyond the Awlaki case; as the ACLU’s Jameel Jaffer wrote in an excellent LA Times Op-Ed last year: “where the state’s ostensible secrets are concerned, it has become common for government officials to tell courts one thing — nothing — and reporters another.”

This is the wretched game that both the Bush and Obama administrations have long been playing: boasting in public about their conduct but then invoking secrecy claims to shield it from true accountability or legal adjudication. Jaffer described the template this way:

After the New York Times disclosed the existence of the National Security Agency’s warrantless wiretapping program, the Bush administration officially acknowledged the program, described and defended it publicly, and made available to the press a 40-page report detailing the program’s supposed legal basis. Five months later, the administration sought to quash a constitutional challenge by arguing that the government couldn’t defend the program in court without disclosing information that was simply too sensitive to disclose.

This is exactly the same model used by both the Bush and Obama DOJs to shield warrantless eavesdropping, rendition, torture, drones, civilian killings and a whole host of other crimes from judicial review, i.e., from the rule of law. Everyone knows that the U.S. Government is doing these things. They are discussed openly all over the world. The damage they do and the victims they leave behind make it impossible to conceal them. Often, they are the subject of judicial proceedings in other countries. Typically, U.S. officials will speak about them and justify and even glorify them to American media outlets anonymously.

There’s only one place in the world where these programs cannot be discussed: in American courts. That’s because, when it comes time to have real disclosure and adversarial checks — rather than one-sided, selective, unverifiable disclosure — and when it comes time to determine if government officials are breaking the law, the administration ludicrously claims that it is too dangerous even to confirm if such a program exists (and disgracefully deferential federal courts in the post-9/11 era typically acquiesce to those claims). So here we have the nauseating spectacle of the Obama administration secretly targeting its own citizens for assassination, boasting in public about it in order to show how Tough and Strong the President is, but then hiding behind broad secrecy claims to shield their conduct from meaningful transparency, public debate, and legal review, all while pretending that they are motivated by lofty National Security Concerns when wielding these secrecy weapons. The only thing worse than the U.S. Government’s conduct of most affairs behind a wall of secrecy is how cynical, manipulative and self-protective is its invocation of these secrecy powers.

* * * * *

Next week, from February 6-11, I’ll be speaking at numerous events around the country regarding the state of civil liberties. I’ll be in New York, Indiana, Tennessee, Ohio and — to deliver the keynote address to the ACLU in Idaho’s annual dinner — in Boise, Idaho. All events are open to the public. Event information is here.

* * * * *

Whenever these issues are discussed, people often ask what can be done about them. There are no easy answers to that question, but supporting the ACLU is definitely one important act (as I noted many times, I previously consulted with the ACLU but have not done so for a couple of years). There are several excellent civil liberties groups in the U.S. worthy of support (CCR is one example), but the ACLU is constantly at the forefront in imposing at least some substantial barriers to the government’s always-escalating abuse of its powers, and, unlike most advocacy groups in the U.S., it defends its values and imposes checks without the slightest regard for which party controls the government (recall the 2010 statement of its Executive Director, Anthony Romero, about President Obama’s civil liberties record). One can become a member of the ACLU or otherwise support its genuinely vital work here.

 

UPDATE: A very similar game is being played with regard to the U.S.’s use of drones generally. For years, Obama officials have refused even to acknowledge that there is such a thing as a CIA drone program even though everyone knows there is. But this week, the President was asked during an Internet forum about his drone attacks and he made very specific claims about it in order to glorify and justify it. Nonetheless, as this Washington Post article notes, the administration still refuses to answer any questions about the drone program — or even acknowledge its existence — based on the claim that its very existence (which the President just discussed in public) is classified.

Illustrating the absurdity of the administration’s exploitation of secrecy powers, White House spokesman Jay Carney was asked yesterday whether President Obama broke the law by disclosing information about the classified drone program, and this is what Carney said:

White House spokesman Jay Carney rebuffed questions Tuesday about whether President Obama had violated intelligence restrictions on the secret U.S. drone program in Pakistan when he openly discussed the subject the day before. . . .  Asked if the president had made a mistake, Carney said he was “not going to discuss . . . supposedly covert programs.”

He suggested that nothing Obama had said could be a security violation: “He’s the commander in chief of the armed forces of the United States. He’s the president of the United States.”

In other words, if the President discloses classified information, then it’s inherently legal, even if he does not declassify the information (a slight variation on President Nixon’s infamous if-the-President-does-it-then-it’s-legal decree). But this is exactly the opposite of what President Obama said when he publicly decreed Bradley Manning guilty: “If I was to release stuff, information that I’m not authorized to release, I’m breaking the law.” Clearly, that’s exactly what President Obama did when he discussed drones this week — and what he did before that by boasting of the classified Awlaki killing on The Tonight Show – but that’s the point: secrecy powers (like the law generally) is merely a weapon to protect and advance the interests of government officials. That’s why President Obama feels free to make whatever claims he wants about these programs to justify himself, but then turn around and tell courts that he cannot even acknowledge if they exist: that way, courts cannot examine their legality, and the public cannot learn anything about the programs that would enable them to verify the President’s assertions about them.

Glenn Greenwald (email: GGreenwald@salon.com) is a former Constitutional and civil rights litigator and is the author of two New York Times Bestselling books on the Bush administration’s executive power and foreign policy abuses. His just-released book, With Liberty and Justice for Some, is an indictment of America’s two-tiered system of justice, which vests political and financial elites with immunity even for egregious crimes while subjecting ordinary Americans to the world’s largest and most merciless penal state. Greenwald was named by The Atlantic as one of the 25 most influential political commentators in the nation. He is the recipient of the first annual I.F. Stone Award for Independent Journalism, and is the winner of the 2010 Online Journalism Association Award for his investigative work on the arrest and oppressive detention of Bradley Manning.

The Loneliness and Courage of Thomas Drake: A Whistleblower’s Journey June 6, 2011

Posted by rogerhollander in Civil Liberties, Criminal Justice, Democracy.
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Published on Monday, June 6, 2011 by CommonDreams.org

“As a student of history and politics, I firmly believe that we have reached a breaking point in this country, when the government violates and erodes our very privacy and precious freedoms in the name of national security and then hides it behind the convenient label of secrecy.

This is not the America I took an oath to support and defend in my career. This is not the America I learned about while growing up in Texas and Vermont. This is not the America we are supposed to be.” —  Thomas Drake, from his acceptance speech of the 2011 Ridenhour Prize for Truth–Telling

Thomas Drake tried to do everything right. He thought that the road he was on of government service was the same road that was consistent with his values.

(Portrait of Thomas Drake by Robert Shetterly. All rights reserved. Courtesy of the artist.)

Immediately after his first day on the job at the National Security Agency — September 11, 2001 — he began to see those roads diverge. For years he tried to straddle them — one foot on the road of loyalty to the NSA and procedural complaint, one foot on the road consistent with his oath to uphold the Constitution. Finally he had to choose or be ethically dismembered. He chose to blow the whistle on waste, fraud, and patent illegality at the NSA. He chose consistency with his ethical sense of Constitutional duty. He knew that illegal wiretaps and the obsessive secrecy to hide them was inconsistent with democracy and the rule of law.

Thomas Drake is being charged under the Espionage Act, section 793(e), only the fourth American ever. The first was Daniel Ellsberg. He’s been charged with mishandling classified information. Not with spying. His crime was to tell the truth about illegality and corruption. “This has become the specter of a truly Orwellian world,” Drake said in his Ridenhour speech, “where… whistleblowing is now equated with spying. Dissent has become the mark of a traitor. Truth is equivalent to treason and speaking truth to power makes one an enemy of the state. And yet who is really the enemy here?”

Jesselyn Radack, a former whistleblower while in the ethics division of the Department of Justice, who is now a lawyer  for the Government Accountability Project defending whistleblowers,  said this while introducing Tom at the Ridenhour ceremony:

“This Administration has brought more ‘leak’ prosecutions than all previous presidential administrations combined. When first elected, President Obama acknowledged that often the best source of information about government wrongdoing is an employee committed to public integrity and willing to speak out. He called such acts courageous and patriotic. So it is especially hypocritical to be prosecuting public servants under the Espionage Act.

Painting whistleblowers as spies serves another ugly purpose: alienating these brave employees from their natural allies in the legal, civil rights and civil liberties community. It is rank hypocrisy for our government—preaching openness and transparency—to criminalize whistleblowing that exposes embarrassing or illegal government conduct. This Administration—whose mantra is to ‘look forward, not backward’—gives war crimes, torture and warrantless wiretapping a pass . . . but is going after the whistleblowers who exposed that misconduct.

The prosecution of Tom Drake is the most severe form of whistleblower retaliation I have ever seen and it sends a chilling message. It is tragic when serving your country gets you prosecuted under the Espionage Act, and when telling the truth gets you charged with ‘making false statements.’ “

We have all cheered the mass demonstrations for justice, human rights and democracy whether in Tunisia, Yemen, Syria or Madison. But the ordeal of the whistleblower is not part of a collective movement. It’s the isolated courage of a gang of one. And the fate of democracy hangs on the success of that one person as much as it does on the success of a mass protest — except that the whistleblower’s conditon is a lot more lonely. When Tom Drake’s trial opens in Baltimore on June 13th, he faces 35 years in prison.

I have just finished painting Tom Drake’s portrait as part of my Americans Who Tell the Truth project. Being with him, being in the presence of his integrity and determination, being able to witness the suffering our government has put him through, was extraordinary. I tried to portray those qualities in the painting. I placed him in the corner of the composition to suggest his isolation and to convey a feeling of his looking back at America in disbelief — and defiance. His defiance is that he adhers to the truth of this country’s ideals even if the country has betrayed and abandoned them.

Thomas Drake needs our support as much as Bradley Manning needs it.

You can support his cause by signing the Change.org petiton here.

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Robert Shetterly

Robert Shetterly [send him mail] is a writer and artist who lives in Brooksville, Maine. He is the author of Americans Who Tell the Truth. See his website.

Keeping “Secrets and Lies” on Argentina’s Past May 24, 2011

Posted by rogerhollander in Argentina, Human Rights, Latin America.
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Published on Tuesday, May 24, 2011 by CommonDreams.org

For a relatively slight margin, the US Congress rejected an amendment by Rep. Maurice Hinchey (D) to declassify files on Argentina’s 1976-1983 military dictatorship. The refusal to declassify files on Argentina is likely to have momentous consequences on the fate of hundreds of babies stolen or “disappeared” during those years. Many of those babies were born in clandestine torture centers, while others were adopted or given in adoption by the same members of the military or police personnel responsible for their parents’ disappearance.

It is not altogether clear whose interests are sought to be protected, but one can hardly imagine that national security, or the work of US spies fighting Al Qaeda, as suggested by House Intelligence Committee Chairman Rep. Mike Rogers (R), may be put in jeopardy by keeping these files in secret. It is not even clear whether President Cristina Kirchner’s administration is interested in having these files in the open. However, if an official request from the Argentine government were submitted, the U.S. government would be hard pressed, as a matter of international comity, not to reveal at least a redacted text of those files.

Aside from governmental interests and politicians’ desires to keep secrets, what is at stake are human lives, victims, and the administration of justice. In 1999, during the Clinton administration, Rep. Hinchey presented a similar amendment for declassifying documents related to General Augusto Pinochet’s administration.  Declassification resulted in the publication of 24,000 documents that proved to be crucial in the prosecution of crimes committed during the Chilean dictatorship.  It provided clear evidence of Pinochet’s connections to the 1976 assassination, in Washington, D.C., of Chilean foreign minister Orlando Letelier, along with his secretary Ronni Karpen Moffitt. Also disclosed was Pinochet secret police’s plans to assassinate former Chilean president Patricio Aylwin, the presidential candidate of the coalition that ultimately defeated General Pinochet in 1988.

In December of 2009,  President  Obama signed an executive order entitled “Classified National Security Information”, stating:  “I expect that the order will produce measurable progress towards greater openness and transparency in the Government’s classification and declassification programs while protecting the Government’s legitimate interests, and I will closely monitor the results.” Failure to disclose information on Argentina’s brutal reign of terror cannot be in the interest of the U.S. Government and, to the extent that it may in the interest of some members of the Argentine Government, it is unlikely that those interests may qualify as “legitimate”.

Both the Mothers of Plaza de Mayo and the Grandmothers of Plaza de Mayo have been searching for decades for their disappeared children and grandchildren. This decision by the U.S. Congress only adds to their difficulties in finding their loved ones. As Representative Hinchey stated, “The United States can play a vital role in lifting the veil of secrecy that has shrouded the terrible human rights abuses of the despotic military regime that ruled Argentina.”  It is about time.

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César Chelala

César Chelala, MD, PhD, is a co-winner of an Overseas Press Club of America award. He is also the foreign correspondent for Middle East Times International (Australia).

Alejandro Garro

Alejandro M. Garro teaches Comparative Law at Columbia Law School and sits at advisory board of Human Rights Watch/Americas, the Center for Justice and International Law, and the Due Process of Law Foundation.

The Cheney-Like Secrecy of the Obama White House August 9, 2009

Posted by rogerhollander in Barack Obama, Democracy, Dick Cheney, Health.
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Published on Saturday, August 8, 2009 by The Nation by John Nichols
Those of us who proposed the impeachment of Vice President Dick Cheney for violating his oath of office and engaging in a Nixon-on-steroids spree of high crimes and misdemeanors began to recognize the abusive nature of the previous administration when Cheney refused to release details of the industry insiders with whom he met to craft energy policies.The refusal of the Bush-Cheney administration to permit public review of White House visitor logs detailing who was meeting with the vice president’s energy task force during the very first weeks of their tenure was a deliberate decision made to cloak dirty dealing by officials who were determined to serve corporate rather than public interests.

It also provided an early indicator that darker and dirtier deeds would eventually be done by Cheney and his compatriots. And they were.

So what should we make of the news that the Obama administration is now refusing to release White House visitor logs that detail meetings between members of the new administration and health-care industry insiders?

As Sharon Theimer, of The Associated Press, notes:

(The) administration’s multibillion-dollar deals with hospitals and pharmaceutical companies have been made in private, and the results were announced after the fact. Both industries promised Obama cost savings in return for an expanded base of insured patients; beyond that, the public is in the dark about details.In some ways, it resembles what his party criticized President George W. Bush for doing with oil and gas companies as Vice President Dick Cheney wrote a national energy plan in the early days of the Bush administration.

As the Bush White House did, the Obama White House is refusing to release visitor logs that would let people see everyone going in and out during the thick of discussions over major national policies.

There is a lot of talk about the fact that Obama has broken a campaign promise.

That’s serious.

But far more serious is the perpetuation of practices of official secrecy that characterized the Bush-Cheney den of iniquity.

When administrations begin to enjoy the benefits of operating in the dark, they become disinclined to end the practice. They also begin to buy into the fantasy that keeping details from Congress and the people is the only way to get things done, as did Obama White House spokesman Reid Cherlin when he tried to explain away a lack of transparency by saying: “Here’s what’s happening: Groups that have steadfastly opposed reform in the past are coming to the table and making concessions — because they know we can’t wait another year to pass health insurance reform.”

Actually, bad players are embracing bad compromises because they have made bad deals with the White House.

And, make no mistake, more bad things will happen.

Only whack jobs who believe that Barack Obama was birthed in Jakarta could imagine that this administration might ever be as corrupt as its predecessor. Bush and Cheney achieved Warren Harding levels of official crookedness.

However, bad-but-not-quite-Cheney-bad is an unacceptable standard.

Official secrecy, especially when it involves meetings by White House aides and representatives of corporate interests that face government regulation, is corrosive. It warps the official agenda and undermines the system of checks and balances — making the legislative branch a weak second to a unitary executive.

Barack Obama promised when he sought the presidency to usher in a new era of openness and transparency. “We’ll have the negotiations televised on C-SPAN, so that people can see who is making arguments on behalf of their constituents, and who are making arguments on behalf of the drug companies or the insurance companies,” candidate Obama declared at a Pennsylvania campaign stop two months before the 2008 election.

Now, he is doing the opposite.

Worse yet, he is perpetuating the foul practices of the most corrupt administration in American history.

Copyright © 2009 The Nation

John Nichols is Washington correspondent for The Nation and associate editor of The Capital Times in Madison, Wisconsin. A co-founder of the media reform organization Free Press, Nichols is is co-author with Robert W. McChesney of Tragedy & Farce: How the American Media Sell Wars, Spin Elections, and Destroy Democracy – from The New Press. Nichols’ latest book is The Genius of Impeachment: The Founders’ Cure for Royalism.

Obama, Pakistan, and the Rule of Law May 14, 2009

Posted by rogerhollander in Barack Obama, Pakistan, War.
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by Peter Dyer

“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.

Hawkish Address

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.”

Extrajudicial Killings

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?

Creative Alternatives

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.

Peter Dyer is a freelance journalist who moved with his wife from California to New Zealand in 2004. He can be reached at p.dyer@inspire.net.nz
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