Drone Strikes Against Alleged Terrorists Are An Abandonment Of The Rule Of Law

Watchkeeper UAV first flight in UK at MoD Aberporth. 14th April 2010.

I have no doubt that the vast majority of British people will support David Cameron’s decision to blow to smithereens two British jihadis fighting with the self-proclaimed Islamic State who were allegedly involved in planning and directing terrorist attacks on the UK, just as the vast majority of Americans support Obama doing similar things. I don’t think the Conservative government will harm its popularity in assassinating these people. The opposite, in fact, or as The Sun put it “Wham! Bam! Thank You Cam”

Going to Syria to fight with the Islamic State is seen as a form of treason: by aligning with a group directly and specifically hostile to the UK, these people (it is being argued) have effectively redesignated themselves as enemy combatants. In those terms, this was simply a mundane act of counterterrorism: the British state suspected an enemy force of plotting death and destruction upon the British people, and neutralized the threat.

At the same time, and while I am no legal expert, I see these killings as an abandonment of the rule of law, which I see as an essential and foundational component of Western civilization tracing back to Aristotle who wrote that: “law should govern”.

The UK government is not trying to argue that this was an act of war, per se. After all, the UK is not at present at war in Syria. Parliament voted against it in 2013. The UK government is trying to argue that there was “no other way” of stopping the attacks they suspected that the targets were plotting, much the same as if you walk into an airport with a gun and start shooting people, you should not be surprised if you are shot dead by an officer of the law in response. And that would be true with a gunman in an airport or shopping centre. But how can it be true of militants thousands of miles away from the UK? They might have been in contact with individuals in the UK who were planning on physically carrying out the attacks. But surely the people who were the imminent threat to the UK were the ones in the UK, not Syria? And nobody in the UK was as far as I can tell apprehended in the course of the act of carrying out an attack. What made the people in Syria such an imminent threat that they had to be killed instead of put on trial for their alleged crimes as anyone else would be?

I don’t think it is anything like as simple as saying that travelling to Syria, and joining the Islamic State should trigger a suspension of the rule of law. The British government is not by itself the law. Nor is The Sun newspaper, nor the man or woman down the pub. The British legal system is the law in the UK, and if someone is suspected of terrorist offences the only way to determine beyond reasonable doubt that they are guilty and establish a sentence is to put them on trial in front of a jury of their peers.

Obviously, Britain has no extradition treaty with the Islamic State. There was no simple and clear cut way to put these people on trial for their alleged crimes. I don’t have a brilliant plan to do it. But killing them outright makes it completely impossible to establish guilt and sentence in front of a court of law in accordance with the rule of law. It does not turn the wheels of justice. A trial may not be necessary for The Sun and The Daily Mail. But it is necessary for upholding the rule of law.

This, ultimately, is a very major element in what separates civilized countries from chaotic and despotic places like the Islamic State, where extrajudicial killing is rampant. If we abandon it, we are abandoning the principles of our own civilization.

Advertisements

Judge, Jury & Executioner

061912-png

I’ve criticised Rand Paul in the past on a few issues, but none of my previous doubts and nitpicks can dilute the sheer brilliance of his almost-thirteen-hour filibuster.

06paul-blog480

The absurdity of the legal framework built up by the Bush and Obama administrations was a house of cards for Paul to poke at and watch crumble. Paul’s key question is does Obama believe he can order the killing of an American citizen, on American soil, based on nothing more than his own judgment that the person is a threat?

Under the Fifth Amendment, suspects are entitled to the due process of law:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

And how can any President claim that his own judgment, or that of his Attorney General counts as the due process of law? The targeted drone killings that have occurred in foreign lands — and which Holder admits could theoretically occur on American soil — are very simply extrajudicial killings. And extrajudicial killings are utterly barbaric, incompatible with modern civilisation, incompatible with any notion of human rights or due process, and incompatible with the Constitution.

The status quo evolved very much out of post-9/11 paranoia, as exemplified by Dick Durbin’s Cheneyesque questions aimed at Paul toward the end of the Filibuster, and by Eric Holder’s initial written response referencing Pearl Harbour and 9/11:

EricHolder

Neither Rand Paul nor myself are suggesting that an attempted violent attack should not be stopped using necessary means (although not excessive means). But if an act of terror has not commenced (and even in many cases where an act of terror has commenced) it should be possible to arrest and question a suspect, rather than killing them. If a suspect can be arrested, charged and tried, there should be no reason why that should not happen.  And unless an act of terror has actively commenced, or unless a suspect can be convicted beyond reasonable doubt in a court of law the government’s suspicion is only a suspicion, and the government has absolutely no business detaining or punishing a suspect.

After 9/11, due process was effectively suspended, and for all of Obama’s lip-service to “change”, this mindset prevailed through his first and into his second administration. Rand Paul’s dogged, tireless questioning — as well as the work of questioners in the media such as Glenn Greenwald, Conor Friedersdorf, Spencer Ackerman, and Micah Zenko —  is acting as a catalyst to break the public and governmental mindset that allowed for the suspension of due process. Due process matters. If it hasn’t been proven that someone has broken the law why should they be punished for it? As humans we have inalienable rights. The fear of terrorism does not trump the right to be tried under the presumption of innocence.

The strength of Rand Paul’s argument means that defenders of the status quo have had to resort to spurious or ad hominem arguments to mount a defence of the President’s position — attacking Paul’s positions on other issues, for example. It was encouraging to see Rand Paul questioning the entire notion of targeted killings and signature strikes altogether, and not just worrying about the prospect of such affairs on American soil. Due process is preferable in all circumstances.  I would have preferred to see Osama bin Laden captured and tried, rather than killed.  Due process is not a sign of moral weakness, but a sign of cultural strength, of sanity, of civilisation.

The Obama administration must eventually understand that their position is untenable. Large swathes of the mainstream media are coming around to the idea that Rand Paul is asking important questions and that due process is more important than national security panic and threat inflation. Paul has struck a blow for the Constitution at the right moment, and to a judicial edifice that has become bloated and corrupt, treating too-big-to-fail bankers with impunity, while coming down like a tonne of bricks on minor intellectual property infractions. He has harnessed the image of a lone filibustering Senator standing up to the machine of the establishment to strike a blow to those who are trying to defend the indefensible. At the very least, Rand Paul has made real oversight of the drone program possible. Hopefully, the days of signature strikes and of targeted killings are numbered. Hopefully, the Constitution and Bill of Rights will reign supreme again in Washington D.C.

America Loves Drone Strikes

This graph shows everything we need to know about the geopolitical reality of Predator Drones (coming soon to the skies of America to hunt down fugitives?).

The American public loves drone strikes:

BC2a006CAAEBSj2

The American public does not approve of the extrajudicial killing of American citizens. But for everyone else, it’s open season.

But everyone else — most particularly and significantly, the countries in the Muslim world — largely hates and resents drone strikes.

And it is the Muslim world that produces the radicalised extremists who commit acts like 9/11, 7/7, the Madrid bombings, and the Bali bombings.  With this outpouring of contempt for America’s drone strikes, many analysts are coming to believe that Obama’s drone policy is now effectively a recruitment tool for al-Qaeda, the Taliban and similar groups:

2_Hands

Indeed, evidence is beginning to coalesce to suggest exactly this. PressTV recently noted:

The expanding drone war in Yemen, which often kills civilians, does in fact cause blowback and help al-Qaeda recruitment – as attested to by numerous Yemen experts, investigative reporting on the ground, polling, testimony from Yemen activists, and the actual fact that recent bungled terrorist attacks aimed at the U.S. have cited such drone attacks as motivating factors.

After another September drone strike that killed 13 civilians, a local Yemeni activist told CNN, “I would not be surprised if a hundred tribesmen joined the lines of al-Qaeda as a result of the latest drone mistake. This part of Yemen takes revenge very seriously.”

“Our entire village is angry at the government and the Americans,” a Yemeni villager named Mohammed told the Post. “If the Americans are responsible, I would have no choice but to sympathize with al-Qaeda because al-Qaeda is fighting America.”

Many in the U.S. intelligence community also believe the drone war is contributing to the al-Qaeda presence in Yemen. Robert Grenier, who headed the CIA’s counter-terrorism center and was previously a CIA station chief in Pakistan, told The Guardian in June that he is “very concerned about the creation of a larger terrorist safe haven in Yemen.”

“We have gone a long way down the road of creating a situation where we are creating more enemies than we are removing from the battlefield,” he said regarding drones in Yemen.

Iona Craig reports that civilian casualties from drone strikes “have emboldened al-Qaeda” and cites the reaction to the 2009 U.S. cruise missile attack on the village of al-Majala in Yemen that killed more than 40 civilians (including 21 children):

That one bombing radicalized the entire area,” Abdul Gh ani al-Iryani, a Yemeni political analyst, said. “All the men and boys from those families and tribes will have joined [al-Qaeda] to fight.

And al-Qaeda’s presence and support in Yemen has grown, not shrunk since the start of the targeted killing program:

Meanwhile Yemen Central Security Force commander Brig. Gen. Yahya Saleh, nephew of ousted president Ali Abdullah Saleh, told Abdul-Ahad that al-Qaeda has more followers, money, guns and territory then they did a year and a half ago.

All at a time when Yemen is facing a “catastrophic” food crisis, with at least 267,000 children facing life-threatening levels of malnutrition. Hunger has doubled since 2009, and the number of displaced civilians is about 500,000 and rising.

As U.S. drones drop bombs on south Yemen villages and AQAP provides displaced civilians with “free electricity, food and water,” tribes in the area are becoming increasingly sympathetic to AQAP.

Let’s be intellectually honest. If a country engages in a military program that carries out strikes that kill hundreds of civilians — many of whom having no connection whatever with terrorism or radicalism — that country is going to become increasingly hated. People in the countries targeted — those who may have lost friends, or family members — are going to plot revenge, and take revenge. That’s just how war works. It infuriates. It radicalises. It instils hatred.

The reality of Obama’s drone program is to create new generations of America-hating radicalised individuals, who may well go on to be the next Osama bin Laden, the next Ayman al-Zawahiri, the next Abu Musab al-Zarqawi. The reality for Obama’s drone program is that it is sowing the seeds for the next 9/11 — just as American intervention in the middle east sowed the seeds for the last, as Osama bin Laden readily admitted.

Who Should Be Giving Thanks This Thanksgiving?

Not the wider public.

Our financial system is broken. Our political system is broken. Oligarchs and their cronies reap easy rewards — bailouts, crony capitalism, corporate handouts, liquidity injections, favourable “regulation” (that puts oligarchs’ competition out of a business) — while taxpayers pay the bill.

But no such thing lasts forever.

Thanksgiving is very much the day of the black swan. Nassim Taleb used the example of a turkey fattened up for Thanksgiving as an example of a black swan phenomenon. The turkey sees itself being fed every day by the turkey farmer and assumes based on past behaviour that this will continued indefinitely until the day comes when the farmer kills the turkey. Nothing in the turkey’s limited experiential dataset suggested such an event.

But Thanksgiving also commemorates the end of pre-Columbian America, a huge earth-shattering black swan for the people of the Americas. The day before the first European immigrants landed in North America, very little in the Native Americans’ dataset suggested what was to come.

In a globalised and hyper-connected world, drastic systemic change can occur faster than ever before.

All it takes is the first spark.

Betray Us

A beautiful cartoon that exposes the absurdity of the Petraeus saga:

A radical idea: instead of carrying out assassinations based on secret kill lists, perhaps the Federal government could start obeying the Constitution, and start issuing arrest warrants or extradition requests for individuals suspected of criminal activity so that they can be tried by a court of law in front of a jury of their peers. We used to call this strange and antiquated notion due process.

The decision to use flying death robots — or as they are known in common speech “drones” — to indiscriminately assassinate terrorism suspects (and their families and neighbours) has already created a new swelling of anger against America in the nations where suspected terrorists have been targeted. As Obama himself recently put it, “there’s no country on earth that would tolerate missiles raining down on its citizens from outside its borders.” Presumably, this includes Pakistan, and Yemen, and Libya and Somalia, and other nations where American drone missiles have rained down on citizens?

And one day, other nations  — like China, which is rapidly putting drones into the skies  — might choose to use flying death robots to assassinate their own suspected terrorists on American soil. Would the American government have any grounds to complain?

Obama Doesn’t Understand Blowback

There’s no country on earth that would tolerate missiles raining down on its citizens from outside its borders. So we are fully supportive of Israel’s right to defend itself.

Barack H. Obama

Well, he’s got one thing right. No country would tolerate missiles raining down on its citizens from outside its borders. And that goes for Gaza just as much as it does for Israel. Having lived in what David Cameron referred to as a “prison camp” for all their lives — Israel controls Gaza’s airspace, territorial waters and border crossings — and living under constant threat of Israeli F16 and drone raids, should Israel really find it surprising that young Gazans are fighting back? Hamas may have a counterproductive and dangerous strategy driven by a violent religious ideology that ends up hurting the Palestinians more than anyone else, but that’s not the point. The point is that nations don’t tolerate missiles raining down on citizens. That’s just as true for Palestine as it is Israel.

There are other examples which Obama would do well to consider. In the first twenty four hours after his re-election, Obama ordered yet another drone strike in Yemen — setting the tone for the next four years. During the Obama administration drones — or perhaps more accurately, flying death robots — have rained down missiles across a vast tract of the world. Yemen, Pakistan, Afghanistan, Libya, Somalia. Quite possibly also Iran and Syria. No trial, no hard evidence, just summary execution.

Every drone strike creates blowback. It increases hostility to Americans throughout that part of the world. It drives angry young people into the arms of violent extremists like the Taliban and Hamas. Because — as Obama rightly points out — no country would tolerate missiles raining down on its citizens from outside its borders. That means that in the long run Obama’s drone strikes are probably America’s greatest national security problem.

Glenn Greenwald on Indefinite Detention

I expected to spend quite some time writing about the Obama administration’s successful appeal against Katherine Forrest’s historic gutting of the indefinite detention provision of the NDAA. Yet I can add very little to Glenn Greenwald’s summation:

In May, something extremely rare happened: a federal court applied the US constitution to impose some limits on the powers of the president. That happened when federal district court judge Katherine Forrest of the southern district of New York, an Obama appointee, preliminarily barred enforcement of the National Defense Authorization Act (NDAA), the statute enacted by Congress in December 2011 with broad bipartisan support and signed into law by President Obama (after he had threatened to veto it).

That 2011 law expressly grants the president the power to indefinitely detain in military custody not only accused terrorists, but also their supporters, all without charges or trial. It does so by empowering the president to indefinitely detain not only al-Qaida members, but also members of so-called “associated forces”, as well as anyone found to “substantially support” such forces – whatever those terms might mean.wrote about that decision and the background to this case when it was issued.

What made Judge Forrest’s ruling particularly remarkable is that the lawsuit was brought by eight journalists and activists, such as former New York Times reporter Chris Hedges, Daniel Ellsberg, Noam Chomsky, and Birgitta Jónsdóttir, who argued that their work, which involves interactions with accused terrorists, could subject them to indefinite detention under the law’s broad and vague authority, even for US citizens on US soil. The court agreed, noting that the plaintiffs presented “evidence of concrete – non-hypothetical – ways in which the presence of the legislation has already impacted those expressive and associational activities”. The court was particularly disturbed by the Obama DOJ’s adamant refusal to say, in response to being asked multiple times, that the law could not be used to indefinitely detain the plaintiffs due to their journalistic and political activities.

I was one of a chorus of writers who thanked Katherine Forrest for her intervention:

These new powers have nothing to with combatting terrorism. If the government has no evidence that can stand up in a court of law it has no business detaining anyone. No, this new power grab has an entirely different target — like the plaintiffs in this case: writers, investigative journalists, bloggers, philosophers, dissidents, human rights activists, libertarians, free-thinkers, tax protestors, critics of fractional-reserve banking, whistleblowers — people like Chris Hedges, Noam Chomsky, Daniel Ellsberg, Jennifer Bolen, and Birgitta Jonsdottir. People like Congressman Justin Amash and Congressman Adam Smith who tried to amend indefinite detention out of the bill. People like me — and to some degree, if you are reading this, people like you. 

The fact that the Obama administration could not give assurances about those who simply criticise U.S. foreign policy indicates very strongly that this power grab is about shutting-up and frightening critics of the U.S. government and the Obama administration.

But — for now —  §1021 of the NDAA, that implement of fascism, has been struck down and thrown out as “facially unconstitutional” as well as having a “chilling impact on First Amendment rights”.

We should thankful for this brave judge’s actions, and for the plaintiffs actions in standing up to tyranny, and vigilant against future incursions.

On the other hand, every politician involved in writing, legislating and authorising this hideous unconstitutional law should be reminded of the words of the Declaration of Independence — it is the right of the people to alter or abolish any government that becomes destructive to liberty.

And last week, Katherine Forrest demolished the Obama administrations protestations once again:

Last week, Judge Forrest made her preliminary ruling permanent, issuing a 112-page decision explaining it. Noting that the plaintiffs “testified credibly to having an actual and reasonable fear that their activities will subject them to indefinite military detention”, she emphasized how dangerous this new law is given the extremely broad discretion it vests in the president to order people detained in military custody with no charges:

forest ruling

The court also brushed aside the Obama DOJ’s prime argument, echoing the theories of John Yoo: namely, that courts have no business “interfering” in the president’s conduct of war. After acknowledging that the president is entitled to deference in the national security realm, Judge Forrest dispensed with the Obama DOJ’s claim with this vital observation: one that should be unnecessary but, in the 9/11 era, is all too commonly ignored:

forest ruling 2

In other words: while the president is entitled to deference in his conduct of war, he’s not entitled to wield the power to order people, including American citizens, indefinitely imprisoned in military detention. Regardless of how he claims he intends to exercise this power, the mere act of vesting it in him so chills the exercise of first amendment and other protected rights that the constitution can have no meaning if courts permit it to stand.

Yet the Obama administration, it seems, does not like the Constitution:

In response to this ruling, the Obama administration not only filed an immediate appeal, but they filed an emergency motion asking the appeals court to lift the injunction pending the appeal. Obama lawyers wrote a breathless attack on the court’s ruling, denouncing it as “vastly troubling” and claiming that it “threatens tangible and dangerous consequences in the conduct of an active military conflict” and “threatens irreparable harm to national security”.

While the Bush and Obama DOJs have long absurdly interpreted the 2001 AUMF to apply to this broader range, and while some courts have accepted that interpretation, the law itself vested no such power. The NDAA did. That is why civil liberties groups such as the ACLU denounced Obama’s signing of it so vociferously, and it is why the Obama DOJ is so horrified, obviously, by the prospect that it will be invalidated: precisely because it so drastically expands their detention power. Both the court’s ruling and the Obama DOJ’s reaction to that ruling prove that the NDAA does indeed provide the president with significantly enhanced authority of indefinite detention.

Greenwald draws a brilliant and frightening parallel:

On the very same day that the Obama DOJ fights vigorously in US courts for the right to imprison people without charges, the Afghan government fights just as vigorously for basic due process.

Remember: the US, we’re frequently told, is in Afghanistan to bring democracy to the Afghan people and to teach them about freedom. But the Afghan government is refusing the US demand to imprison people without charges on the ground that such lawless detention violates their conceptions of basic freedom. Maybe Afghanistan should invade the US in order to teach Americans about freedom.

This development should be deeply troubling for all Americans, and all of us who believe that the values of the American revolution — freedom of speech, liberty, representation, due process — should be a light unto the world.