Balkinization  

Wednesday, April 14, 2010

What if it were Bush?

Sandy Levinson

Robert Wright has an excellent column (online) in tomorrow's Times, on "The Price of Assassination." In it he links to a post that takes Harold Koh to task for his defense of targeted killings by the US in Pakistan and elsewhere, noting, among other things, that Koh's argument would seemingly extend to killing anyone the United States deems affiliated with Al Qaeda or any other similar group, regardless of geographical location. It is widely known that Obama has ordered more drone strikes in his year in office than George W. Bush did in his entire administration. One can only wonder what the response of the left would be if it were Bush (and, say, John Yoo) engaging in (and defending) the actions that seem central to the Obama Administration's policy in Pakistan (and Yemen and....). The most ominous part of Wright's column is an argument that the policy is very likely to be counterproductive, for a number of reasons he goes into. So there may be a "negative trifecta," i.e., a policy that raises serious moral and legal questions and is counterproductive to boot.

I note that Jack Goldsmith gave an excellent talk at the University of Texas last week making the argument that in almost all fundamental respects the Obama Administration is continuing the "anti- and counter-terrorism" policies of the "second Bush Administration," i.e., the second-term Bush presidency that freed itself, to at least some extent, from the mad-dog unilaterlism identified with Dick Cheney, David Addington, and John Yoo. It is difficult to disagree with Goldsmith's argument, empirically. Whether we should be cheered or dejected is, of course, another matter entirely. (Dejection is the only proper response, for example, to the decision by the Obama Administration to case Dawn Johnson adrift. As the Times suggested in a powerful editorial aptly titled "Politics 1, Rule of Law 0," "the ill treatment of Ms. Johnsen," both by the unscrupulous Republicans who campaigned against her, but, altogether importantly, the Administration as well, which utterly failed to do anything serious to defend her or, of course, to make her a recess appointee, "send[s] a chilling message to lawyers and others who might be willing to do government service: don’t stand on principle and certainly don’t speak out in public."

Comments:

A former Stevens' clerk also 'targets' Koh, providing some interesting Stevens history relevant to the issue as well.

Given the importance of executive power issues, perhaps a guest blogger can be a semi-regular of sorts to be a partial replacement to Marty Lederman on such issues.
 

"It is widely known that Obama has ordered more drone strikes in his year in office than George W. Bush did in his entire administration."

I don't generally feel the need to defend Obama, but my guess is that he's made more use of IPods, too. You're going to see that sort of thing, when military technology is changing fast.
 

Like guns, IPods don't kill, it seems. And since drones, according to Brett, are like IPods, drones don't kill either. By the way, might drones qualify as arms for self defense under Heller (operated from the home, of course)?
 

What? I was simply pointing out that Obama might have used drone attacks more than Bush, simply because the drones themselves are a recent development. Is attacking me such a reflex that you're going to do it even when I make a simple point in defense of a Democrat?
 

When did drones first become operational? Under Obama or before?* As I recall, drones were in use under Bush/Cheney. Perhaps the drone technology has been so improved that mistakes are lessened. But are they? Apparently the justification for the use of drones is that American lives operating them are not at risk. So perhaps Obama should concentrate on controlling space for drone warfare. But what about the troops on the ground dealing with the reactions of Afghans concerned with the deaths of innocent Afghan civilians at the hands of the drones? Are these troops endangered?

*My 1988 edition of Webster's New World Dictionary on "drone": "3 a pilotless airplane that is directed in flight by remote control."
 

Koh's actual words don't actually justify any actions beyond traditional international law. All he did was say that in "military operations" and in "legitimate self-defense" certain acts are legal. It's pretty nearly impossible to disagree with those statements. The whole debate needs to be about the circumstances making up the quoted phrases, not the focus on drones.

Glenn Greenwald has, in his usual delicate way, addressed these issues on a number of occasions.
 

Good point, Brett:

"The whole debate needs to be about the circumstances making up the quoted phrases, not the focus on drones."

The problem of course is getting the facts, whether involving drones or otherwise. So under "traditional international law ... in 'military operations' and in 'legitimate self-defense' certain acts are legal." Good principles, subject of course to possibly nasty facts.
 

Koh seems to be saying what actually is going on fits his definitions.

He is not just an academic theorizing here. He is defending actual events.

As to Brett, are you saying drone technology is so much superior now that its use now is different than in the Bush years?

Seems to me that the drone policy is not being applied because of some improvement of technology in the last year, but because of a different strategy and assumed different facts on the ground scenario.
 

I'm not saying it's use is different, I'm saying that Bush would have used them more in the last year, than his first two terms, were he still President: The technology was still being adopted while Bush was President.

I see little difference here due to their being drones. Would you feel better if the exact same people were being killed, and the drones were manned? If the exact same people were killed by a guy standing on the ground? The drones don't decide who to kill, they're just remote controlled weapons. The issues are who's being killed where and under what circumstances, not whether or not there's a wireless link between the trigger and the firing pin...
 

Koh seems to be saying what actually is going on fits his definitions.

I agree up to a point, subject to two qualifications.

First, there have been different conditions used to justify "self-defense". If Koh is using a strict definition, then that's fine. If he's using a broader one, then his comments are deceitful.

Second, as to whether the facts actually justify a strict application of self-defense in particular cases, we're rarely going to know that. Our only hope is to keep the Administration to a strict reading of the law and figure they'll get caught if they violate that.
 

I wonder if anyone has a link to the hearing transcript for the occasion on which Mr. Tenet defended longstanding separation between unmanned ordnance delivery vehicles and unmanned surveillance vehicles. The rules of robotic war are a new area in international law; however, Mr. Tenet appeared to be voicing longstanding historical policy, and the congress people on the panel seemed to express recognition of the verisimilitude of the representations he was making, in effect, presenting a plea for continuance of the firewalling of one technique from the other.
 

"Would you feel better if the exact same people were being killed, and the drones were manned?"

Not by much but one problem raised here is that drones provide disconnect with what is happening, it becomes like a video game. This can very well lead to more killing than if it was more personal.

As to Mark Field's qualifications, I guess that can suggest the danger of using certain justifications, since it would require us to trust others -- at times, it is hard enough to trust ourselves.
 

As to the increased use of iPods and drones under Obama, there does seem to have been an increased emphasis on their use. However, we also have more and better drones, more and more experienced "pilots", and some funny accounting.

Just for example, Bush used drones both in conjunction with conventional military operations in Iraq and in CIA-ordered strikes in Afghanistan. The big increase is in the CIA category, and even that is subject to funny accounting:

The Obama Administration has dramatically increased the number of CIA drone attacks since taking office. Under President Bush, the CIA carried out only 2 strikes in 2006 and 3 in 2007. In July 2008, Bush increased the number of drone strikes, totaling 34 attacks in 2008. Most of the key CIA personnel from the Bush Administration’s drone program remain, but the Obama Administration has far outpaced its predecessor in the frequency of drone strikes. By October 19th, 2009, the CIA had conducted 41 strikes under President Obama, compared with the same number over three years under former President Bush. CIA drone strikes under the Obama Administration show no signs of abating. The agency has conducted 11 strikes in Pakistan during the first month of 2010.

So Bush had 34 strikes in the last six months of 2008; I don't know if weather permits the obvious annualization, but that is a pace of 68 per year (or 51, if we eliminate three months).

If Obama had 41 through October 2009, that is not a wildly different level of usage from the late pace set by Bush.

Well. I am sure Team Obama wants to talk up their successes and emphasize their new way of doing things, whether it is new or not.
 

Given his ongoing argument for obsequious submission of U.S. sovereignty to "international law," it is telling that Koh is making the argument that nothing in the law of war prohibits killing members of a wartime enemy as part of that war.

The idea that the United States cannot kill American enemy combatants during a war and must instead snatch them from foreign countries and bring them home for treason trials is so far out in left field that even Koh will not support it.
 

During the Bush/Cheney years, I was following America's national space strategy with great attention. If America had control of space, then as the world's superpower, it could use its technology to fight wars with limited troops in foreign battlefields (assuming significant intelligence, howevr), thereby significantly reducing American troop casualties. Of course, other nation states would and did object to such a space strategy. I share Joe's concern with video game combat. Right now, America is still the "good guy." But control of space might be such an awesome power that who knows what it might lead to? Even the Bush/Cheney administration understood that American pursuit of the control of space would not be unchallenged. To lessen warfare means understanding risks, not only to America but to others.
 

It's not just the drones.

It's also no consequence for war crimes.

It's also massive illegal wiretaps.

It's also Gitmo is still open.

It's also giving up on the justice system for terror suspects, thereby branding them warriors not criminals, and robbing the process of legitimacy needed for world support of U.S. policies.

It's also claiming that vital national security interests are in Afghanistan.

It's also lack of (promised) transparency for many issues.

It's also putting in charge of economic policy the same insiders who got us into this mess.

It's also healthcare coverage reform that, despite its merits, gives away the store to giant insurance companies and does little to contain cost.

If it were Shrub we'd certainly cite these as mistakes and big ones.

Obama doesn't get a free ride for them either.

It could just be that some of us have metrics that don't adjust by party affiliation.
 

Our former backpacker references "enemy combatants" in his comment. In this regard, take a peak at Barry Sullivan's "Justice Jackson's Republic and Ours" included in "Law and Democracy in the Empire of Force" edited by H. Jefferson Powell and James Boyd White. Sullivan's paper is available via SSRN at:

http://ssrn.com/abstract=1587062

It focuses upon Justice Jackson's opinion in Youngstown in contrast to Justice O'Connor's plurality opinion in Hamdi v. Rumsfeld. Here's a tidbit from the penultimate [my favorite word] of Sullivan's "Conclusion":

"With little or no congressional action, a president may commit the United States to military actions that set a practically irrevocable course and that may eventually exact costs that can be tallied up only in terms of thousands of lives, billions of dollars, and untold damage to the standing of the nation. This can be accomplished in consultation with a narrow group of advisors, and it may be done in a matter of hours, if not minutes. Moreover, even when actions cannot be so swiftly accomplished, the legitimate need for secrecy in matters of foreign and military affairs can easily be exploited to stifle debate on controversial policies until it is too late."
 

While I share jpk's metrics not to adjust automatically to party affiliation by walking in lockstep with Pres. Obama with whatever he does, I agree with Norman J. Ornstein's WaPo OpEd today (4/14-10) titled "Obama: A pragmatic moderate faces the 'socialist' smear." (Ornstein is an AEI resident scholar who over the years has taken both parties to task.) We've had enough of the Bush/Cheney lockstepper-commenters for 8 years at this Blog.
 

Shag:

What possible relevance is the Jackson quote to the issue at hand of whether it is perfectly permissible to kill members of a wartime enemy who happen to be
American?

BTW socialists generally have no problem prosecuting wars. The fact that Obama is prosecuting this war is hardly evidence that he is not a socialist.
 

BTW socialists generally have no problem prosecuting wars.

Who are these socialists?
 

Here's a tidbit from the penultimate [my favorite word]

If you like "penultimate," you're gonna love this one: antepenultimate!

Or, "penult" (PEE-nult) and "antepenult."

For those of us who learned these words while trying to decipher Ancient Greek accent distribution, it's old hat. ;)
 

Perhaps if our former backpacker read Sullivan's article, he might understand its relevance with respect to "enemy combatants" and executive power.

And it's also clear he hasn't bothered to read Ornstein's OpEd - or, if he has, understand it.

I wonder if the "dry drunk" concept applies to DUI specialists.
 

We all know they have been doing it unofficially, but now the FBI are openly targeting dissidents for their thought and opinion, looking for ways to build criminal cases against them. See http://www.fbi.gov/page2/april10/sovereigncitizens_041310.html

No doubt such people might be misguided and undereducated, but their efforts at political theater are civil disobedience protests of real violations of the Constitution. I suppose "libertarians" and "constitutionalists" will be next.
 

Brian Leiter at his Philosophy Blog (4/14/10):

http://leiterreports.typepad.com

provides a link to a recent Noam Chomsky article. Consider this comment of Brian:

"In this regard, it is probably also important that Obama has done almost nothing to put checks on the massive expansion of executive power put in place during the Bush Administration. Ergo, if Obama loses in 2012...."
 

Nice post, thanks for sharing this wonderful and useful information with us.

Green Tea
 

Correction to my earlier comment: The Leiter link is to an article on a recent speech given by Chomsky. Sorry.
 

And take a look - no, a careful read! - at TomDispatch.com of Tom Englehardt's 4/13/10 post "Gods and Monsters - Fighting American Wars From On High."
 

Kenneth Anderson over at Volokh Conspiracy cites this post and provides a somewhat different perspective.

Note also another post by Volokh that notes a popular Washington "quote" is probably fictional. It was cited by a regular here in the past. So FYI.
 

Shag from Brookline said...

And take a look - no, a careful read! - at TomDispatch.com of Tom Englehardt's 4/13/10 post "Gods and Monsters - Fighting American Wars From On High."

Exhibit One of why the Geneva Conventions only provide POW privileges to enemy combatants who openly carry weapons and wear identifying clothing. These provisions were specifically drafted to discourage combatants from disguising themselves as and hiding among civilians as do the Taliban and a Qaeda to protect the civilian population from the crossfire of war.

Also, the danger posed to civilians by drone attacks is minuscule compared to standard conventional operations. The Allies broke out of Normandy by carpet bombing the german troops and 5000 French civilians at St Lo. Several million civilians dies in WWII.

Sending in teams of infantry to get up close and personal with the enemy under the theory that you can better identify civilians is better in theory than in practice. Iraqi insurgents in civilian clothing ambushed a Marine squad in Haditha with a roadside bomb and then opened up fire on them from nearby houses filled with their civilian owners. The Marines cleared the buildings with small arms fire and a couple dozen civilians died in the process.

The enemy used Haditha as a propaganda weapon and compelled the Marines to charge its squad with war crimes. After months of lawfare hell, all but one of the Marines have had their charges dismissed for lack of evidence and the squad leader is likely to be acquitted in a courts martial on surviving lesser charges.

Guess why Obama prefers drones.
 

Does anyone have a good argument as to why the Obama administration should not be required to release the legal analysis underlying its claim of presidential authority to order the killing of Awlaki?
 

Because it is classified and he is a Democrat.

Leaking classified documents is limited to evil Republican Administrations.
 

Our former backpackers drones on and on.

By the way, do the Geneva Conventions define "enemy combatants"?

And there's a tad more to Haditha than what our yodeler provides.

Does mls have "a good argument as to why the Obama administration and the Bush/Cheney administration should not be required to release the legal analys[e]s underlying [their] claims of presidential authority to order" killings, torture and other decisions arising out of both the Iraq and Afghanistan wars? Let's have all of it hang out there.
 

Does anyone have a good argument as to why the Obama administration should not be required to release the legal analysis underlying its claim of presidential authority to order the killing of Awlaki?

No. The Administration absolutely should do so.

That said, I expect it will claim, among other things, "self-defense". That's an argument which is heavily dependent on specific facts, which I expect would be withheld for "reasons of state". Thus, while I fully support a release of the analysis, I'm dubious how much information we'll actually get.
 

I'm having some trouble pulling up old posts on this site so please forgive me if I am in error, but is it really the case that there isn't a single post on this site addressing the Obama Administration's targeting of an American citizen for execution?
 

Ha! Ha! You suckers believed in Him.

Now you get to ask yourself: "Was I the rube?".

The answer is yes, and it was entirely self inflicted.

ROTFLMAO.
 

My hats off to the Obama Justice Department. The FBI found and Justice has indicted the NSA officer who appears to be the NYT source for their disclosure of the top secret TSA to al Qaeda.

One wonders at the utter idiocy of an NSA officer, whose agency is tasked with identifying al Qaeda based upon email intercepts, being indicted based upon "hundreds of e-mails with a reporter for a national newspaper."

BTW, given that these "hundreds of emails" equally indict the "reporter for a national newspaper" aka James Risen, can we then expect an indictment of Mr. Risen on the same exact charges? Indicting a reporter from the DNC house organ NYT would probably be a bit much to expect from a Dem DoJ.
 

The WaPo link provided by our former backpacker closes with this:

"An appellate court's opinion in the Plame leak case took note that not all leakers are the same, and differentiated between those who are genuine whistle-blowers, trying to shine light on a government wrong, and those with a political agenda or ax to grind. Fitzgerald argued successfully that Libby and Cheney had been engaged in an effort to smear Plame's husband, Joe Wilson, and the leak of her identity was a political tactic."

I wonder what was category this leaker comes under?

By the way, the WaPo article makes no reference to NYTimes reporter James Risen, although reference is made to a NYTimes series of articles on a separate matter from the one involving the former NSA employee. Our yodeler should take care to avoid accusing Risen of criminal activity as that could be defamatory if false. Note that the WaPo article does not indicate that the reporter to whom information was leaked (identified by the WaPo as a Ms. Gorman then of the Baltimore Sun and later the Wall Street Journal) by the former NSA employer was charged or is to be charged. Sounds like our yodeler has taken a leap too early on this. Could be he does not like the NYTimes. (Remember the Pentagon Papers?)
 

Shag from Brookline said...

The WaPo link provided by our former backpacker closes with this:

"An appellate court's opinion in the Plame leak case took note that not all leakers are the same, and differentiated between those who are genuine whistle-blowers, trying to shine light on a government wrong, and those with a political agenda or ax to grind. Fitzgerald argued successfully that Libby and Cheney had been engaged in an effort to smear Plame's husband, Joe Wilson, and the leak of her identity was a political tactic."


Libby was convicted of making a false statement to an investigator. Fitzgerald did not even ask for an indictment on the disclosure charge against Libby because he knew Deputy Secretary of State Richard Armitage and not Libby accidentally disclosed the Plame's job to Novak.

The WP's repetition of the lie that Libby leaked Plame's identity to the press as revenge for Wilson's Niger op-ed is simply a pathetic attempt to make the NSA felon look better in comparison.

By the way, the WaPo article makes no reference to NYTimes reporter James Risen, although reference is made to a NYTimes series of articles on a separate matter from the one involving the former NSA employee.

That is why I posted "appears to be the NYT source." This would not have been a minor story if the NSA felon generated hundreds of emails over a nearly two year period. Risen did all the original disclosures of the TSP during this time period. Can you offer any alternative reporters making original disclosures concerning NSA operations during this time period?
 

This comment has been removed by the author.
 

Bart's comment leaves me baffled on so many levels.

1) The existence of the TSA is known to every single air traveler in the country and has been for some time. Is he perhaps confusing the TSA with the TSP, the self-servingly-named Terrorist Surveillance Program?

2) Is he really under the impression that this indictment, which relates to leaks in 2006 and 2007, has anything to do with the TSP, which was known to the New York Times prior to the 2004 election (but not published by the supposedly Bush-hating Times until afterwards)?

3) Does he truly not comprehend the difference between James Risen and Eric Lichtblau, on the one hand, and Siobhan Gorman, on the other? Some pictures might do wonders here.

4) Does he truly believe that a Justice Department of either party would consider indicting a reporter for receiving and printing classified information? Does he truly not grasp that it would utterly vitiate the First Amendment were the government permitted to declare, "This information is illegal to print"?

5) Is he really under the impression that the knowledge that their calls were sometimes wiretapped without a warrant was of great value to al-Qaeda? Does he actually think that al-Qaeda was happily chatting with American citizens all along, saying, "Don't worry about speaking freely, the infidels can't listen unless they have a warrant"?

6) Does he actually believe that the explanation for Patrick Fitzgerald's decision not to indict Libby on the leaking charge was that "Armitage was the real leaker," as opposed to the reason actually stated by Fitzgerald? Does he not realize that Libby indisputably leaked Valerie Plame's occupation to Judith Miller and others, and that the claim that "Armitage was the real leaker" has been the stalest of talking points for quite some time?
 

As is customary for our former backpacker, when confronted with his own statements, he comes up with a lame explanation. Here's what our yodeler had said in his 3:45 PM comment:

"BTW, given that these 'hundreds of emails' equally indict the 'reporter for a national newspaper' aka James Risen, can we then expect an indictment of Mr. Risen on the same exact charges? Indicting a reporter from the DNC house organ NYT would probably be a bit much to expect from a Dem DoJ."

Where are are yodeler's facts regarding Risen? They do not appear in the WaPo article your yodeler linked to. Where does it appear in the WaPo article that the former NSA officer leaked to Risen for the NYTimes series? Perhaps your yodeler plucked it from his backpack of lies.

Steve M. does a yeoman number on our yodeler that I incorporate by reference.
 

Shag:

You are correct. The latest news is that the emails had to do with NSA spending overruns which appear to have been reported by a reporter named Gorman. Small fish. It appears that Risen's big fish felon is still a fugitive from justice.
 

Steve M said...

Is he really under the impression that this indictment, which relates to leaks in 2006 and 2007, has anything to do with the TSP, which was known to the New York Times prior to the 2004 election (but not published by the supposedly Bush-hating Times until afterwards)?

You develop sources over time. For example, Robert Novak first learned about Valerie Plame from the Assistant Sec State and then filled in the blanks from other sources.

Does he truly believe that a Justice Department of either party would consider indicting a reporter for receiving and printing classified information?

One can always hope that reporters who disclose top secret intelligence gathering to a wartime enemy might actually be held to account someday.

Does he truly not grasp that it would utterly vitiate the First Amendment were the government permitted to declare, "This information is illegal to print"?

Nonsense. There has never been a 1A right to publish classified materials.

Is he really under the impression that the knowledge that their calls were sometimes wiretapped without a warrant was of great value to al-Qaeda?

Think about what you just said.

We were successfully intercepting enemy telecommunications of various types. This fact rather strongly suggests they did not know they were being intercepted.

Informing the enemy which of his communications methods we are successfully intercepting gives the enemy the ability to determine what we have probably intercepted and to change their communications methods.

This is Intel 101 and was repeatedly explained to the NYT before they intentionally disclosed the information to the enemy with full knowledge of the damage it would cause.

Does he actually think that al-Qaeda was happily chatting with American citizens all along, saying, "Don't worry about speaking freely, the infidels can't listen unless they have a warrant"?

Actually, most of the calls were between foreign sites routed through American telecommunications hubs. The NY Times blew far more than just al Qaeda communications within the US.

Does he actually believe that the explanation for Patrick Fitzgerald's decision not to indict Libby on the leaking charge was that "Armitage was the real leaker," as opposed to the reason actually stated by Fitzgerald?

Fitzgerald claimed that he did not have sufficient evidence of intent to prove the disclosure offense. One would hope that the fact that Armitage was Novak's source and there was absolutely no evidence of a conspiracy in the Administration to out Plame to gain revenge against Wilson might have played some role in the decision Libby did not have the intent to out Plame.
 

What a hopeless response. Duly noted...
 

Bart De Palma wrote:-

"Given his ongoing argument for obsequious submission of U.S. sovereignty to "international law," it is telling that Koh is making the argument that nothing in the law of war prohibits
killing members of a wartime enemy as part of that war. The idea that the United States cannot kill American enemy combatants during a war and must instead snatch them from foreign countries and bring them home for treason trials is so far out in left field that even Koh will not support it."


As usual, Bart blissfully ignores some fundamental matters:

A. In relation to the legality of executive action: (i) even where the executive acts within its own sovereign territory it is not only concerned with whether its actions are lawful as a matter
of US law but aloso whether its domestic law is incompatible with its treaty obligations; (ii) where the executive acts on the sovereign territory of another state or on the high seas or in the air, it must also have a concern as to (a) whether the contemplated action will be lawful under the law of that state and/or (b) whether the contemplated action will offend against treaty obligations of the USA or against international law.

B. Administrations come and go, but the state is a continuing entity. If another state or an individual has an actual or potential claim against the United States for a wrongful exercise of power, the administration cannot simply mimic the position of Barabas in Marlowe's "The Jew of Malta" - "But that was in another country: And besides, the wench is dead.".

Those who speak for the United States have so far as possible to defend the legality of the acts of previous administrations.

An important part of Dean Koh's 25th March ASIL Address were the passages where he discussed the problems of interagency co-operation and the need to have regard to the previous position of the executive branch:

"Now to say that is not to say that one administration cannot or should not reverse a previous administration’s legal positions. But what it does mean, as I noted at my confirmation hearings, is that government lawyers should begin with a presumption of stare decisis--that an existing interpretation of the Executive Branch should stand-- unless after careful review, a considered reexamination of the text, structure, legislative or negotiating history, purpose and practice under the treaty or statute firmly convinces us that a change to the prior interpretation is warranted."

I have to say that this is the position of government lawyers the world over. And for good reasons to which I propose to advert in a further post.
 

A very good reason why the lawyers of the state should be slow to disavow the positions previously taken by the state is that the state or its citizens may be liable to claims for acts which were unlawful - either in its domestic courts or before international jurisdictions - or in claims by other states made extra judicially.

Take the position of HM Government in the UK. The state has no sovereign immunity against tort claims brought by citizens and non-citizens alike and it is generally vicariously liable for the acts of its officeholders and employees.

Thus in relation to operations in Iraq and Afghanistan, government lawyers initially took the position that our Human Rights Act had no extra-territorial application. Our Courts have since decided otherwise. So now the government is having to meet compensation claims arising from the mistreatment of prisoners in Iraq and hold public inquiries into such misconduct.

An example is the case of Baha Mousa. On 14 September 2003 Mousa was arrested along with six other men and taken to a British base. The detainees were hooded and severely assaulted by a number of British troops. Two days later Mousa died and a post-mortem examination found that he had suffered multiple injuries (at least ninety-three), including fractured ribs and a broken nose, which were 'in part' the cause of his death. On 27 March 2008, the Ministry of Defence admitted to "substantial breaches" of the European Convention of Human Rights in relation to the Army's treatment of Mousa and in July 2008 agreed to pay £2.83 million in compensation to his family and nine other men, following an admission of breaches of articles 2 and 3 ( the right to life and the prohibition of torture) of the European Convention on Human Rights. The Baha Mousa Public Inquiry is now proceeding.

Likewise, there are both criminal investigations and claims for damages proceeding relating to the role our security services played in the detention and interrogation of prisoners by the USA which may well end up with accessories to wrongdoing and their employing state being found guilty or held liable while the principal wrongdoers and their employing state (for the moment at any rate) escape liability.

The present US administration may very well wish to disavow positions of the previous administration. It may even wish to update US law on matters such as sovereign immunity and human rights to bring its domestic legislation up to the standards of more enlightened nations.

But as we have seen, even something as apparently simple as eliminating discrimination based on sexual orientation in the armed forces is proving very difficult. That was also true in the UK with blue-rinsed Tory matrons, retired generals and admirals and the leaders of various fundamentalist sects all predicting dire consequences of one kind and another. But I am pleased to say that the change has been accomplished and the the heavens have not fallen.

However, change for the future is very different to conceding illegality in the past, and while in an ideal world one might wish the USA to admit the mistakes of the previous administration, that is a political and legislative issue and it is for the administration's lawyers to defend the status quo in public so fas as they are able, whatever their private (and privileged) advice may be.
 

Just a final note on the specifics of the Koh ASIL address.

While I must defer to his interpretation of US law until the US Courts have ruled otherwise, I do not accept that his arguments on a number of topics are valid as matters of international law.

Still, we have, for example, moved a long way from the original Bush Administration assertion that Guantanamo Bay was a "legal black hole" and there is some reason to hope that further progress will be made in the fullness of time although, given the present membership of the US Supreme Court, the progress I would like to see may well not happen in my lifetime.
 

Mourad said...

BD: The idea that the United States cannot kill American enemy combatants during a war and must instead snatch them from foreign countries and bring them home for treason trials is so far out in left field that even Koh will not support it."

As usual, Bart blissfully ignores some fundamental matters...


I have no disagreement with most of what you posted above. However, in what way are your points possibly relevant to the issue of whether it violates due process under the United States Constitution to kill a enemy during wartime military operations who happens to be American?
 

My dear Bart:

I'll leave it to you Americans to work out what your citizens's rights are under your constitution. God help them if you have to decide anything!

My concern is primarily what rights are afforded to citizens of my and other countries and to what the USA may not do in violation of the territorial sovereignty of other states.

For example: The USA is not at war with the UK. Nor does our law recognise the concept of the "war" on terror. Rightly. It's a juridical nonsense.

So if the USA wishes to take action against any person within our borders, be he British, American, Yemeni, or whatever, then the only lawful course is to apply through the proper channels for his extradition which would only be granted if the USA also gave an undertaking as to non-execution.

To take him out of the jurisdiction other than pursuant to extradition process would be kidnapping and to assassinate him would be murder and in either case our Attorney General and Crown Prosecution would be under an obligation to proceed against the principals and accessories before and after the fact accordingly. The fact that the crime was sanctioned by or on behalf of a foreign state would not be a defence or even mitigation.

Likewise, murder of a UK citizen, wheresoever it takes place, is a crime under English law as if it had happened here and the same principles apply.

Suppose the murder was accomplished by means of a drone, piloted entirely from without the jurisdiction No matter, if the death takes place here the English Court has jurisdiction.

Those principles are broadly true for all states with whom the USA is not at war and, as far as I know the USA is not at war with any state at the moment, not with Afghanistan, not with Iraq, not with Pakistan, not with Yemen.
 

Mark- presumably a legal analysis would first provide the framework that allows the administration to target an individual for assassination. This would include the legal test that is applied when determining whether a particular individual constitutes such a threat as to warrant assassination.

The second part of the analysis would consist of applying the legal framework to the specific facts of Awlaki's situation. This part of the analysis might be largely or entirely redacted.

But it seems to me that the first part of the analysis would not be redacted and would in itself be pretty interesting.
 

Hard to see what's "excellent" about Robert Wright's column.

Wright asks whether it violates international law to be firing missiles into Pakistan when that country has given no formal permission. This would presumably be a question of some wrong to Pakistan, which they are free to make some claim about if they wish; otherwise there is no real issue. It's well known that the US has permission, whether formal or informal, to be firing missiles into Pakistan.

Wright misrepresents the policy when he says, "If Harold Koh — the state department lawyer assigned the job of justifying Obama’s strategy — carries the day, America will be telling the world that it’s O.K. to lob missiles into countries that haven’t attacked you, as long as you think a terrorist may live there." Not only do we have permission to use missiles in Pakistan, but the standard "think a terrorist may live there" isn't the operative standard.

Wright treats the question of targeting an American citizen in a country where we don't have permission as an extension of the same issue. It isn't. The fact that we don't have permission, formal or otherwise, makes it a different issue. He doesn't really have much to say about the issue of permission or citizenship, in any case.

Wright bases much of his argument about the potential counterproductive effect of Obama's policy on an analysis by Jenna Jordan of "decapitation" of terrorist groups over the years since 1945. There are serious problems with Jordan's analysis (which is nonetheless worth reading for those interested in this topic), one of which Wright points out himself, that groups targeted for decapitation are more likely to be more dangerous and thus not comparable to the control group of terrorist groups not subjected to decapitation. A majority of the terrorist groups studied ceased to function within two years, whether their leadership was targeted or not. Obviously those likely to fall apart without targeting leaders were less likely to be decapitation targets. This alone makes Jordan's conclusions worthless.

(continued . . .)
 

It's also important that Jordan's main analysis is only about the collapse of terrorist groups, and doesn't address degradation of effectiveness. She only considers the latter for three groups, which shows very little.

Further, much of Jordan's analysis doesn't distinguish removing the top leader and/or large numbers of leaders from removing one member of the leadership echelon. (When she does compare removing the top leader, she finds it's more effective than removing a lower leader, as would be expected.) The extent of the leadership removal is of course a crucial variable. There is no thought of relying on killing a single leader to disable Al Qaeda. The entire organization is being aggressively targeted, top to bottom. It's ridiculous to compare this to groups who had a single leader arrested or killed without any consideration of how effectively the rest of the group was targeted.

Wright's explanation of why Jordan's analysis "make[s] sense" despite its methodological failings is no more than a particular form of a broader argument that has been made against all manner of force used against hostile groups. Leaders, like soldiers, can be replaced, and killing them makes followers or potential followers angry and can further motivate them and help win new recruits. Of course that's true, but it doesn't follow that lethal force against terrorists, or any other enemy, is generally a bad idea, even in those cases where religion and a sense of injustice are major factors.

Obama has been consistent about this from the time in his campaign when he was trying to establish his militaristic cajones by saying he would bomb Pakistan to kill Bin Laden with or without permission. Essentially this policy in regard to Al Qaeda was already in place under Clinton, when the question whether to assassinate Bin Laden in Yemen and other places didn't hinge on whether we had permission. This much isn't a continuation of a novel Bush policy but of long-standing US policy.
 

mls: I agree.
 

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