Judge, Jury & Executioner

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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.

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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:

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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.

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Drone Club

The first rule of Fight Club?

You don’t talk about Fight Club.

Obama isn’t a member of Fight Club; he’s a member of Drone Club — which targets individuals in foreign lands, including American citizens and their families, for extrajudicial assassination by drone. And the first rule of Drone Club?

You don’t talk about it.

Via Reprieve:

Apple has for the third time this month rejected an iPhone app which alerts the user to a drone attack and to the number of people killed.  Drones+ enables those concerned to track the strikes to their handset. 

This is no doubt an uncomfortable prospect for the US authorities, whose use of drones extends to Pakistan, Yemen and Somalia, where no war has been declared.  Such drone strikes have killed more than 3,300 people in Pakistan alone since 2004, according to reports by the Bureau of Investigative Journalism.  

Now we don’t know who made this decision, whether Apple thinks that citizens knowing of drone strikes is a national security risk, or whether Apple were leaned on by the CIA, NSA or Pentagon — though given that Obama has prosecuted more whistleblowers than all other Presidents combined, the latter wouldn’t be entirely unsurprising. Nonetheless, whatever the truth this is a very disturbing development — after all, how can we rightly judge the administration’s foreign and national security policy without having up to date facts?

Obama claims that the drone strikes are conducted on a very rigorous basis:

1 “It has to be a target that is authorised by our laws.”

2 “It has to be a threat that is serious and not speculative.”

3 “It has to be a situation in which we can’t capture the individual before they move forward on some sort of operational plot against the United States.”

4 “We’ve got to make sure that in whatever operations we conduct, we are very careful about avoiding civilian casualties.”

5 “That while there is a legal justification for us to try and stop [American citizens] from carrying out plots … they are subject to the protections of the Constitution and due process.”

Yet as Wired notes:

At least two of those five points appear to be half-truths at best. In both Yemen and Pakistan, the CIA is allowed to launch a strike based on the target’s “signature” — that is, whether he appears to look and act like a terrorist. As senior U.S. officials have repeatedly confirmed, intelligence analysts don’t even have to know the target’s name, let alone whether he’s planning to attack the U.S. In some cases, merely being a military-aged male at the wrong place at the wrong time is enough to justify your death.

Micah Zenko adds:

What I found most striking was his claim that legitimate targets are a ‘threat that is serious and not speculative,’ and engaged in ‘some operational plot against the United States. The claim that the 3,000+ people killed in roughly 375 nonbattlefield targeted killings were all engaged in actual operational plots against the U.S. defies any understanding of the scope of what America has been doing for the past ten years.

Of course, just as worrying as the actual policy is the fact that the public widely approves of it.

The Washington Post notes:

The sharpest edges of President Obama’s counterterrorism policy, including the use of drone aircraft to kill suspected terrorists abroad and keeping open the military prison at Guantanamo Bay, have broad public support, including from the left wing of the Democratic Party.

A new Washington Post-ABC News poll shows that Obama, who campaigned on a pledge to close the brig in Cuba and to change national security policies he criticized as inconsistent with U.S. law and values, has little to fear politically for failing to live up to all of those promises.

The survey shows that 70 percent of respondents approve of Obama’s decision to keep open the prison at Guantanamo Bay. He pledged during his first week in office to close the prison within a year, but he has not done so.

Obama has also relied on armed drones far more than Bush did, and he has expanded their use beyond America’s defined war zones. The Post-ABC News poll found that 83 percent of Americans approve of Obama’s drone policy, which administration officials refuse to discuss, citing security concerns.

83%? It was George Lucas’ Princess Amidala who noted that freedom usually dies to thunderous applause.

Wikipedia:

Extrajudicial punishments are by their nature unlawful, since they bypass the due process of the legal jurisdiction in which they occur. Extrajudicial killings often target leading political, trade union, dissident, religious, and social figures and may be carried out by the state government or other state authorities like the armed forces and police.

I’d like to see Obama answering as to whether his sanctioning of extrajudicial killing resides within the rule of law.

Ben Swann wanted to know the same thing, but Obama wasn’t answering:

You don’t talk about Drone Club.

Drone Warfare in America

What would Obama supporters think if they learned that their beloved President was running far-to-the-authoritarian-right of arch-hawk Charles Krauthammer on one particular civil liberties issue?

Sadly, the answer is that most Obama supporters probably wouldn’t feel very much at all, because support for Obama has always been predominantly emotion-driven (he promised change “you can believe in”, not “change that I can logically convince you will be beneficial“).

But I digress. Charles Krauthammer weighed in on FOX yesterday to telegraph his opposition to bringing drone warfare to the skies of America.

Krauthammer said:

I’m going to go hard left on you here, I’m going ACLU. I don’t want regulations, I don’t want restrictions, I want a ban on this. Drones are instruments of war. The Founders had a great aversion to any instruments of war, the use of the military inside even the United States. It didn’t like standing armies, it has all kinds of statutes of using the army in the country.

I would say that you ban it under all circumstances and I would predict, I’m not encouraging, but I am predicting that the first guy who uses a Second Amendment weapon to bring a drone down that’s been hovering over his house is going to be a folk hero in this country.

The Founders were deeply opposed to the militarisation of civil society. There is all kinds of aversions to it and this is importing it because, as you say, it’s cheap, it’s easy, it’s silent. It’s something that you can easily deploy. It’s going to be, I think the bane of our existence. Stop it here, stop it now.

And this is a big deal. A recent report by Micah Zenko noted:

Worried about the militarization of U.S. airspace by unmanned aerial vehicles? As of October, the Federal Aviation Administration (FAA) had reportedly issued 285 active certificates for 85 users, covering 82 drone types. The FAA has refused to say who received the clearances, but it wasestimated over a year ago that 35 percent were held by the Pentagon, 11 percent by NASA, and 5 percent by the Department of Homeland Security (DHS). And it’s growing. U.S. Customs and Border Protection already operates eight Predator drones. Under pressure from the congressional Unmanned Systems Caucus — yes, there’s already a drone lobby, with 50 members — two additional Predators were sent to Texas in the fall, though a DHS official noted: “We didn’t ask for them.” Last June, a Predator drone intended to patrol the U.S.-Canada border helped locate three suspected cattle rustlers in North Dakota in what was the first reported use of a drone to arrest U.S. citizens.

But I’m going to go even further than the threat to civil liberties: I am fairly certain that the militarisation of U.S. airspace by drones is itself a huge national security threat. While Zenko notes that drones “tend to crash”, the downing of a U.S. drone over Iran late last year — supposedly via an Iranian hack — seems to suggest that it is possible for drones to be commandeered by hackers or hostile powers. And if that’s not the case today, then it almost certainly will be tomorrow. Putting drones into the air above the United States is like going to sleep on a bed of dynamite. It’s an invitation to anyone to try and commandeer a plane, possibly one stocked with high-tech weaponry.

The Federal government would do well to quit groping Grandma at the TSA checkpoint, and start worrying about the potential negative side-effects of systems they are putting into place. All the TSA security theater in the world cannot stop a determined hacker from commandeering a drone.

Charles Krauthammer is right (and after the Iraq invasion which he championed I never thought I would say that): it could be the bane of our existence. Stop it here. Stop it now.

The Economics of the War on Terror

The cost of the global war on terror since the attacks of 9/11? Almost $4 trillion.

That’s almost half of what the U.S. has added in debt since 2001:


Without the war on terror, America’s national balance sheet would look much healthier.

So has it been worth it?

America’s free spending national security hawks, frothy at the mouth, might say yes.

But the deeper reality seems to be that terrorism is a relatively small — and some would say negligible — threat:

The chronic exaggeration of U.S. national security threats also extends to the security of individual Americans. Since 9/11, a total of 238 American citizens have died from terrorist attacks, or an average of 29 per year. To put that in some perspective, according to the Consumer Product Safety Commission, the average American is as likely to be crushed to death by televisions or furniture as they are to be killed by a terrorist. A recent study from Duke University found that, since 9/11, eleven Muslim Americans were involved in active terrorist plots in the United States, which killed thirty-three Americans. Over that same time period, there have been nearly 150,000 murders and over 300,000 suicides.

So should we declare war on people being crushed to death by televisions and furniture?

Most tellingly, from 1980 to 2005 only 6% of all terrorist events in the U.S. was Islamist in nature:

The spectacular imagery of 9/11 blinded American policymakers. Whether it was a case of guilt as a result of their failure in spite of the warnings to protect America, or whether it was that the events of 9/11 became an excuse to exercise preconceived (and in my view ill-conceived) foreign policy objectives, policymakers matched the spectacular image of 9/11 with an equally spectacular spending spree.

And yes — America has not been hit by a spectacular terrorist attack since. But it hadn’t really been hit by a spectacular terrorist attack before. 9/11 was  — whatever your wider view of the incident — a black swan event: high impact, and unprecedented. And the problem with black swan events is that very often they are not repeated, and so spending money to prevent future occurrences is more or less a waste of money.

America faces a whole swathe of real risks far far bigger than international terrorism including derivatives contagion, global trade fragility, climate instability, and electromagnetic pulses. We don’t know what the next calamitous black swan event will be. But I’m pretty sure that a whole boatload of money will be spent on preventing it after it has happened, just as trillions have been wasted on preventing jihadist terrorism after it has already done the damage.

And the biggest problem here is the spending. $4 trillion of productivity was wasted. Keynesian multipliers are irrelevant — the money would surely otherwise have still been spent, and on more productive and useful endeavours. That’s a pretty big opportunity cost.