Tuesday, May 17, 2016

To the Next U.S. President, the Unlimited Power to Spy, Imprison and Kill

Go To Original

Remember when coups and assassinations were secretive and presidents were obliged to go to Congress, tell lies and ask permission to wage wars? Remember when torture, spying and indefinite imprisonment were illicit, when issuing signing statements to rewrite laws was rare, and when yelling “state secrets” to shut down legal cases was considered abusive?

For over two centuries, it would have been an outrage for the president to hold a meeting every Tuesday for the sole purpose of going through a list of names and picking out which men, women and children should be killed.

Those times are gone. By mutual consent of those in power in Washington, D.C., all such resistance and outrage is now firmly in the past. It would now be unfair and violate established bipartisan precedent to deny the powers of unlimited spying, imprisonment and killing to the next president of the United States.

The fact that this new reality is so little-known is largely a symptom of partisanship, as most Democrats still haven’t allowed themselves to hear about the kill list. But the widespread ignorance is also a function of media, of what’s reported, what’s editorialized, what’s asked about in campaign debates and what isn’t.

Assassination Complex: Inside the Government’s Secret Drone Warfare Program,” a new book from Jeremy Scahill and the staff of The Intercept, is terrific to see—both for what it actually teaches us and even more because of what it represents. These same reports from The Intercept have already brought us the same details online—details that fit a pattern of similar revelations that have trickled out through numerous sources over the years. The truly encouraging part is that a media outlet is reporting on the dangerous expansion of presidential and governmental power and framing its concerns in a serious way.

The United States is now working on putting into action drone shipsand ships of drone planes, but the country has never worked out how it is legal, moral or helpful to use missiles to blow people up in numerous places all around the earth. Drone wars, once declared successful and preferable alternatives to ground wars, are predictably evolving into small-scale ground wars, with great potential for escalation, and nobody in any place of power has considered using aid, disarmament, diplomacy or the rule of law to do what Obama—as a presidential candidate back in 2008—might once have called ending the mindset that starts wars.

I recommend starting “The Assassination Complex” by first reading Glenn Greenwald’s afterword. In it, Greenwald reminds us of some of Senator and Candidate Obama’s statements in favor of restoring the rule of law and rejecting President George W. Bush’s abuses. Yet what Candidate Obama called unacceptable at Guantanamo, President Obama has not only continued at Guantanamo and elsewhere but expanded into a program that focuses on murder without “due process” rather than on imprisonment without “due process.”

“Somehow,” writes Greenwald, “it was hideously wrong for George W. Bush to eavesdrop on and imprison suspected terrorists without judicial approval, yet it was perfectly permissible for Obama to assassinate them without due process of any kind.” That is, in fact, a very generous depiction of the drone murder program: “The Assassination Complex” documents that, at least during one time period examined, “nearly 90 percent of the people killed in airstrikes were not the intended targets.” Instead of thinking of drones as weapons killing particular people who are denied the right to a trial by jury but are suspected of something by somebody, we should think of drones as random killing machines.

“It is hard,” Greenwald writes, “to overstate the conflict between Obama’s statements before he became president and his presidential actions.”

Yes, I suppose so, but it’s also hard to overstate the conflict between some of his campaign statements and others of his campaign statements. If he was going to give people a fair hearing before abusing their rights, what are we to make of his campaign promises to start a drone war in Pakistan and escalate the war in Afghanistan? Greenwald is assuming that the right not to be murdered ranks somewhere fairly high alongside the right not to be spied on or imprisoned or tortured. But, in fact, a war-supporting society must understand that all rights have particular protection except the right to stay alive.

The advantage that comes from viewing small-scale drone murders as an escalation of small-scale imprisonment—that is, as a violation of rights—really comes when you carry logic one step further and also view large-scale killing in war as a violation of rights. Among the top areas in which I would add to Greenwald’s summary of Obama’s expansions of Bush powers are: torture, signing statements and the creation of new wars of various types.

Obama has made torture a question of policy, not a crime to be prosecuted. Frowning on it and outsourcing it and hushing it up do not deny it to the next president in the way that prosecuting it in court would.

Obama campaigned against rewriting laws with signing statements. Then he proceeded to do just as Bush had done. Obama has only used fewer signing statements than Bush did largely because fewer laws have been passed and because he has created the silent signing statement. Remember that Obama announced he would review Bush’s signing statements and decide which to reject and which to keep. (That is itself a remarkable power that now passes to the next president, who can keep or reject any of Bush’s or Obama’s signing statements.)

But as far as I know, Obama never did actually tell us which of Bush’s signing statements he was keeping. Obama simply announced that prior signing statements—issued by himself or by Bush—would continue to apply to new laws, even he did not issue a new signing statement. Obama also has developed the practice of instructing the Office of Legal Counsel to write a memo in place of a law. And he’s developed the additional technique of creating self-imposed restrictions, which have the benefit of not being laws at all when he violates them. A key example of this is his standards for whom to kill with drones.

On the question of starting wars, Obama has radically altered what is acceptable. He began a war on Libya without Congress. He told Congress in his last State of the Unionspeech that he would wage a war in Syria with or without them (a statement which they applauded). That power, further normalized by all the drone wars, will pass to the next president.

Lawyers have testified to Congress that drone killing is murder and illegal if not part of a war, but perfectly fine if part of a war, and that whether it’s part of a war or not depends on secret presidential memos that—by definition—the public hasn’t seen. The power to render murder effectively legal by declaring the existence of a secret memo, is also a power that passes to the next president.

In reality, there is no way to even remotely begin to legalize drone murders, whether or not part of a war. The seven current U.S. warsthat we know of—in Afghanistan, Iraq, Pakistan, Syria, Libya, Yemen and Somalia—are all illegal under the United Nations Charterand under the Kellogg-Briand Pact. So any element of them is also illegal. This is a simple point but a very difficult one for American liberals to grasp, particularly in a context where human rights groups like Amnesty International and Human Rights Watch have taken a principled stand against recognizing the illegality of any warin order to appear politically neutral.

If, on the other hand, the drone murders are not part of an illegal war, they are still illegal because murder is illegal everywhere under universal jurisdiction. The defense that a foreign dictator, exiled or otherwise, has granted permission to murder people in his country so that sovereignty is not violated, misses the basic illegality of murder, not to mention the irony that helping dictators kill their people conflicts rather stunningly with the common U.S. excuse for launching wars of overthrow, namely punishment of a dictator for the ultimate sin of “killing his own people.” Sovereignty is also an idea very selectively respected. Just ask Afghanistan, Iraq, Libya or Syria.

In “The Assassination Complex,” reporter Cora Currier looks at Obama’s self-imposed restrictions on drone murders. Under these limitations, it is required that drone missiles target only people who are “continuing, imminent threats to the American people” and who cannot be captured and that there is “near certainty” that no civilians will be killed or injured. Currier points out that Obama approves people for murder for months at a time, rendering dubious the already incoherent idea of a “continuing imminent threat.” It’s not clear that “capture” is ever seriously considered, and it is clear that in many cases it is not.

The alleged requirement that drone operators seek “near certainty” that civilians will not be killed is belied by the constant killing of civilians and, as Currier points out, by the White House’s claim to have had that “near certainty” in a case where the dead civilians were American and European—a crime that necessitated at least some accountability.

In the book, Scahill and Greenwald also document the fact that sometimes what is being targeted is not a particular person but a cellphone believed to belong to that person. Obviously, this strategy offers no “near certainty” that that person is near their phone during a drone attack—nor that anyone else isn’t.

What might begin to restrain this madness? Will those who opposed lawlessness under Bush but turned a blind eye to its expansion under Obama find themselves opposing it again? That seems highly unlikely under the best of the three remaining big-party presidential candidates, Bernie Sanders. I can’t imagine ever getting a significant number of his supporters to even become aware of his foreign policy, so good is he on domestic issues.

With Hillary Clinton, the task would be extremely difficult as well, aided only by the likelihood that she would launch truly big-scale wars.

With a President Trump, it seems much more conceivable that millions of people would suddenly find themselves opposing what has been firmly put into place the past 16 years.

Whether it would then be too late is a different question.

No comments: