Posts Tagged ‘CNN’

REPRISE: Anwar al-Aulaqi—Targeted Killings, Self-Defense, and War Crimes

Thursday, February 13th, 2014

Press reports indicate President Obama is considering adding or has already added the name of a U.S. citizen to the kill list for targeted assassination by drone or other means.

See

Tom Cohen, “When can a government kill its own people?,” CNN, February 11, 2014.

Mark Memmot, “U.S. Citizen May Be Targeted With Drone Strike: Reports,” NPR, February 10, 2014.

Given the text of the Fifth Amendment to the Constitution, which provides that no one shall be deprived of “life” without due process of law, and the absurd argument that has been made by Attorney General Eric Holder that “due process of law” does not require judicial involvement, the question arises–however theoretical it may be–as to whether Obama’s authorization of another targeted assassination of a U.S. citizen abroad would constitute a “failure to uphold the Constitution of the United States” (Obama’s oath of office), and therefore grounds for impeachment.

Consider the factors discussed in the previous article reproduced below.

First published on April 7, 2010

The United States has gotten itself into a terrible jam, having adopted the legal justification of the Bush administration for targeted killings.

The Washington Post reports today that,

A Muslim cleric tied to the attempted bombing of a Detroit-bound airliner has become the first U.S. citizen added to a list of suspected terrorists the CIA is authorized to kill, a U.S. official said Tuesday.

Anwar al-Aulaqi, who resides in Yemen, was previously placed on a target list maintained by the U.S. military’s Joint Special Operations Command…

Because he is a U.S. citizen, adding Aulaqi to the CIA list required special approval from the White House, officials said. The move means that Aulaqi would be considered a legitimate target not only for a military strike carried out by U.S. and Yemeni forces, but also for lethal CIA operations.

“He’s in everybody’s sights,” said the U.S. official, who spoke on the condition of anonymity because of the topic’s sensitivity….

–Greg Miller, “Muslim cleric Aulaqi is 1st U.S. citizen on list of those CIA is allowed to kill,” Washington Post, April 7, 2010

If this death warrant is executed in circumstances that do not justify the use of force in self-defense, either at the international or at the domestic level with the permission of the territorial state, its execution may constitute a war crime.

Some lawyers have won the argument within the Obama administration that it is lawful to kill a member of a terrorist organization, particularly if he has been involved in past acts of terrorism, wherever he can be found.

This argument is based on provisions of humanitarian law or “the law of war” that distinguish between combatants who are lawful targets and non-combatants who are not.

It ignores, however, the fact that provisions of humanitarian law are themselves limited by key provisions of the United Nations Charter, particularly Article 2 paragraph 4 which prohibits the use of force against the territorial integrity or political independence of any state, except in the case of self-defense against an armed attack as provided in Article 51.

It is universally recognized that Article 2 paragraph 4 is a norm of jus cogens, or mandatory law from which there can be no exception. Humanitarian law grants no right to act beyond the limitations of this prohibition.

The use of lethal force to punish past actions, moreover, constitutes an armed reprisal, which is universally recognized as prohibited by international law.

In other cases, where the territorial state grants its permission to a foreign state to carry out a targeted killing, such a killing is legal under international law only if it meets the requirements of international human rights law. For the territorial state can cede to another state no greater rights than it itself possesses, and indeed it is far from clear that it can do even this.

Both Article 2 paragraph 4 of the Charter and international human rights law allow for the use of lethal force as may be required for self-defense or for self-defense and the defense of others by the authorities of the territorial state.

In both cases the requirement is that force be used only as a last resort against an ongoing or imminent use of force by the target, or after judicial proceedings and due process of law.

This element is initially self-judging in character, opening the door to abuse. However, just as police allegations that they have acted in self-defense are subject to judicial review, the self-defense justification of a state conducting targeted killings, and of the individuals executing the state’s orders, are subject to review by the courts of other countries exercising universal jurisdiction and potentially, at least in the future, by the International Criminal Court. Actions taken by a state in exercise of the right of self-defense are, moreover, to be reported to the U.N. Security Council under Article 51 of the Charter.

The use of force against an individual who has laid down his arms or ceased and desisted from active participation in attacks (or, in the language of  humanitarian law, has withdrawn from combat or placed himself hors de combat) is an extrajudicial killing or assassination, and would also constitute a war crime.

The problem here is that the U.S. government has become so accustomed to being prosecutor, judge and executioner that it has forgotten that international legal norms are involved, whose content and validity are necessarily determined by others, and that the ultimate validity of the legal justifications for targeted killings are likely one day to be determined by the judges of an international court or a national court exercising universal jurisdiction.

Just as individuals who participated in the “harsh interrogation techniques” program carried out under the Bush administration would be well advised to carefully choose the countries they travel to, now but also particularly in five or ten years, those individuals currently involved in the targeted killings program should also be very confident they are acting in lawful exercise of the right of self-defense when executing their orders.

For if their actions do not satisfy the requirements of self-defense, they constitute the commission of unlawful assassinations, and probably war crimes. As established at Nuremberg, the argument that such actions were carried out under the orders of superiors, or “due obdience”, is not a permissible defense.  Nor is the argument that the defendant believed he was acting in accordance with international law likely to be given any weight as a defense.

The United States has now become an official hit squad, which will go out and kill anyone on its list of targetable individuals.

Yet it is hard to see how the United States can kill its way to peace, in Afghanistan or in the struggle against terrorists in different countries throughout the world.

Whatever the short-term gains from the current approach, and it is far from clear that it does not create more terrorists than it kills, President Obama and his international lawyers need to rethink their approach to targeted killings.

They need to reexamine the issue, both in order to avoid extrajudicial executions and assassinations, and to shape the standards which will also guide other states in the future in deciding whether or not to put someone on a hit list and then to go out and kill him.

It is time to back off from the Wild West, and to return to civilization and the task of building out a viable international legal order.

The Trenchant Observer

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Comments are invited, in any language. If in a language other than English, please provide an English translation. A Google translation will be sufficient.

SRI LANKA: United Nations reports on its own grave failure, government war crimes on wide scale in closing weeks of civil war; human rights under assault (with link to U.N. report)

Tuesday, November 20th, 2012

The failure of the United Nations in the last weeks of the civil war in Sri Lanka, as government forces committed war crimes on a very large scale, is described in a new U.N. Report. Meanwhile, Alan Keenan writes for CNN of the government’s efforts to emasculate the legal system and to impeach the president of the supreme court.

See

REPORT OF THE SECRETARY-GENERAL’S INTERNAL REVIEW PANEL
ON UNITED NATIONS ACTION IN SRI LANKA
November 2012

Alan Keenan (Special to CNN), “Time to push back over Sri Lankan impunity,” CNN, November 20, 2012.

The Trenchant Observer

On eve of testimony to Congress on Benghazi, CIA Director David Petraeus forced out over an affair

Friday, November 9th, 2012

Updated November 10, 2012

David Petraeus, the nation’s most-celebrated military commander, has been forced to resign, ostensibly over an affair which came to light in an FBI investigation of unauthorized access to his computers and personal e-mail. Petraeus had been scheduled to testify in Congress next week on the attack on the Benghazi consulate and CIA “annex”, and the U.S. response.

According to the New York Times account, Petraeus was encouraged by others to resign.

Senior members of Congress were alerted to Mr. Petraeus’s impending resignation by intelligence officials about six hours before the C.I.A. announced it. One Congressional official who was briefed on the matter said that Mr. Petraeus had been encouraged “to get out in front of the issue” and resign, and that he agreed.

–Michael D. Shear, “Petraeus Quits; Evidence of Affair Was Found by F.B.I.,” New York Times, November 9, 2012.

Whether there is anything more to the coincidence of timing than meets the eye remains to be seen.

With the CIA and the Obama administration, however, it is always prudent to look beyond what meets the eye.

Robert Baer, a celebrated former CIA agent, stated the following in an interview with Piers Morgan on CNN on Friday:

CNN contributor and former CIA operative Robert Baer spoke to Piers Morgan Friday and gave his perspective on the resignation of General David Petraeus. The now former CIA director resigned from his post earlier Friday citing an extramarital affair.

“The idea that the FBI is investigating the CIA director for a marital, extramarital affair is just extraordinary,” said Baer in response to the news that the FBI was investigating the general and the alleged individual involved with the affair, Petraeus’ biographer Paula Broadwell.

“There are 4 or 5 CIA directors that I know who were carrying on extramarital affairs while they were director. The FBI was never brought in,” said Baer. “So this is absolutely extraordinary. I’m telling you there’s more to do than with sex. There’s something going on here which I can’t explain and I think we’re going to find out very soon.”

–Piers Morgan Tonight, November 9, 2012 (with video clip)

See also

Philip Sherwell, “Spy chief Gen David Petraeus, his ‘embedded’ biographer and the FBI email trawl that exposed their affair.” The Telegraph, November 10, 2012.

Petraeus is the second current or former U.S. commander in Afghanistan to be replaced or forced to resign for “errors in judgment”.  Stanly McChrystal was the first. He was replaced by David Petraeus in June, 2010, following the publication in Rolling Stone of scurrilous comments by McChrystal and his staff about other leaders and officials.

One common denominator in these two cases was that both men, priding themselves on their extraordinary physical fitness, operated on the basis of severe sleep deprivation.

There are many more wrinkles to this story, but one lesson seems clear: If we want our commanders to make good judgments, we should insist that they get enough sleep. That applies to the Commander-in-Chief as well, and represents at least one positive lesson President Obama can take away from this episode.

Among the many questions raised by Petraeus’ resignation are the following:

1. Why did the FBI refrain from acting on the Petraeus case until after the elections on November 6?

2. According to reports, Obama and Petraeus did not have a warm relationship.  Was Obama involved in the timing of the FBI investigation being brought to Petraeus’ attention?

3. If not the president, who was behind the timing of the confrontation with Petraeus?

4. What is the relationship, if any, between the timing of the forced resignation, and Petraeus’ testimony before Congress on the Benghazi affair, which was scheduled for next week?

5. What is the relationship, if any, between the CIA’s assessment of the situation in Afghanistan, and a long-overdue National Intelligence Estimate (NIE) on Afghanistan, and the timing of Petraeus’ departure?

In the end, in seeking to understand Petraeus’ wreckless behavior, one has to wonder to what extent he was deeply unhappy with his situation at the CIA, with the “withdrawal” policy being followed in Afganistan, and with his own cool relationship with the president.   

Most telling, perhaps, is the fact that the affair reportedly took place not under the extreme stress of wartime conditions in Afghanistan, but after he returned to Washington.

Surely he knew that his personal e-mails would be read.  Ultimately, we may need to inquire into the subconscious roots of his self-destructive behavior. 

Here, we have the makings of a great novel, and a great movie. The general may, if fact, be the emblematic man of our times. 

What Petraeus thinks about our policy in Afghanistan is something we may have to wait a while to hear, at least until after he has found his way to emerge from the sea of shame that has inundated him in the last few days. 

When he is ready to speak, many will be eager to hear what he has to say, about President Obama’s strategy in Afghanistan, and elsewhere.

The Trenchant Observer

Obama, the presidential elections, Syria and Iran—Obama’s Debacle in Syria — Update #51 (June 12)

Tuesday, June 12th, 2012

More Opinion on Obama, drones, the elections, Syria and Iran

(1) Anne-Marie Slaughter, “Syrian intervention is justifiable, and just,” The Washington Post, June 8, 2012. The author is a professor of politics and international affairs at Princeton University and former dean of Princeton’s Woodrow Wilson School of Public and International Affairs. She was the State Department’s director of policy planning from January 2009 to January 2011.

Slaughter pinpoints the key fact that military intervention would have as its goal bringing a halt to the killing, not necessarily regime change. She writes,

Henry Kissinger recently argued against intervention in Syria [“The perils of intervention in Syria,” Sunday Opinion, June 3] on the grounds that it would imperil the foundation of world order. His analysis was based on a straw man, one put forward by the Russian and Chinese governments, that outside intervention would seek to “bring about regime change.”

The point of an intervention in Syria would be to stop the killing — to force Bashar al-Assad and his government to meet the demands of the Syrian people with reforms rather than guns. If the killing stopped, it is not clear what shape the political process would adopt, how many millions would take to the streets or whom different factions would support. The majority of Syrians would almost certainly demand that Assad leave office, but by the ballot box or a negotiated political settlement that would leave the Syrian state — in the sense of bureaucracy, the army, the courts — largely intact.

(2) David Meyers, “Inaction in Syria means a nuclear Iran more likely,”The Jerusalem Post, June 11, 2012 (23:16 h).

Meyers writes:

For more than a year, the international community has dithered and delayed action to stop the bloodshed in Syria, and there is no end in sight.

But the biggest beneficiary of the world’s inaction lies next door in Iran.

The Iranian regime has seen a world community unwilling and unable to stop a ruthless dictator from killing his own people. And Iran’s leaders have surely calculated that the world will never act to stop them from obtaining a nuclear weapon.

(The writer is a former White House staffer who is pursuing a PhD in political science.)

(3) Frida Ghitis, “Obama’s re-election delaying action on Syria?” CNN, June 11, 2012 (updated 8:57 p.m. EDT)

(4) Michael Boyle “Obama’s drone wars and the normalisation of extrajudicial murder; Executive privilege has seduced the president into a reckless ‘kill first, ask questions later’ policy that explodes the US constitution,” The Guardian, June 11, 2012.

(5) Michael Bohm, “Putin Has a Responsibility to Protect Syrians,” The Moscow Times, June 7, 2012 (opinion).

Bohm writes:

What Putin’s position on humanitarian intervention fails to recognize is that the global, collective responsibility to prevent the mass killing of civilians by government forces ­— a concept that was developed after the horrors of World War II and the Holocaust — provides a fundamental UN framework for global order and security.

Thus, the gross abuse of human rights committed by Syria’s government troops and security forces cannot be dismissed as an “internal matter” for Syrian President Bashar Assad to sort out himself, as the Kremlin maintains. It has now become an international issue by definition.

In any case, Russia needs to change its fundamental ideological position opposing UN-­sanctioned humanitarian interventions, or what the Kremlin scornfully calls “Western neointerventionism.” Russia needs to join the post-World War II era by rejecting its primitive, cynical notion of “sovereign democracy” — not only within its borders but for other countries as well.

Most of the world’s nations have adopted the Responsibility to Protect norm as a guiding principle for global order and security. It is time for Russia to take this responsibility as well.

(6) John McCain, “McCain on Syria: ‘How many more have to die?'” Tucson Sentinel, June 7, 2012.

Analysis

1. The Kofi Annan 6-point peace plan was a fiasco from its conception, as pointed out here at the time. Annan had the chutzpa to state, in an interview after the meetings at the U.N. General Assembly and Security Council on Syria on June 7, that the 6-point plan had not necessarily failed, but rather that its implementation had failed. Annan’s mission has failed. He should be removed from the deliberations.

Annan has all the formulaic solutions in the U.N. quiver of arrows to draw upon with his imagination and dogged determination to stay at the center of efforts to resolve the crisis in Syria. These words are familiar: “road map”, “contact group”, etc.  They haven’t actually led to the successful conclusion of any negotiations, but rather stand for interminable negotiations leaving nothing resolved (e.g., Israel-Palestine negotiations, Iran’s nuclear program, North Korea’s nuclear program).  They will not lead to a resolution of the Syrian conflict.

Ban Ki-moon should either resign or assume responsibility for being Secretary General of the United Nations himself. We have seen far too much of Kofi Annan, and his disastrous 6-point plan which has cost over three months of time and many thousands of lives in Syria, with absolutely nothing to show for the effort. Absolutely nothing.

What the Secretary General and the Security Council need to do now is to end the delegation of their solemn duties to Annan, and assume those duties directly themselves.

2. Those Security Council members who suppport action in Syria (everyone but China and Russia) should now draft and bring to a prompt vote in public session a resolution under Chapter VII of the Charter which:

a) Establishes jurisdiction of the International Criminal Court over the crimes against humanity and war crimes that have been and are being committed in Syria, giving effect to the affirmations in earlier resolutions calling for the accountability of those responsible for these crimes; and

b) Establishes the United Nations Supervisory Mission in Syria with a new and stronger mandate, and provision for an expansion of its numbers in the future, with an immediate increase to 1,000 observers. If the Mission does not already have its own armed security personnel and armored vehicles for the protection of its members, authorization of such additional personnel and equipment should be included.

The resolution should, after a short period for consultations, be put to a public vote. The Russians and the Chinese should not be allowed to water down the resolution.

If Russia and China will not vote for even these mild steps, given the carnage in Syria which is accelerating every day, let them them cast their vetoes in the full view of the world, their own populations, and history.

Even if China and/or Russia vetoes the resolution, we would be no worse off than we are now, while the air would have been cleared for fresh thinking and prompt action to bring the atrocities in Syria to a halt.

The Trenchant Observer

observer@trenchantobserver.com
www.twitter.com/trenchantobserv

For links to other articles by The Trenchant Observer, click on the title at the top of this page to go to the home page, and then use the “Search” Box or consult the information in the bottom right hand corner of the home page. The Articles on Syria page can also be found here. The Articles on Targeted Killings page can also be found here.

Did the White House authorize recent leaks on covert programs?

Sunday, June 10th, 2012

At President Obama’s press conference on Friday, June 8, he was asked by David Jackson of USA Today about the leaks that were apparently behind recent newspaper articles and several books on covert operations. President Obama’s response is of particular significance. In watching it, in the video clips below, please pay close attention to his demeanor and other non-verbal behavior.

Was President Obama’s response forthcoming? If it were to turn out that the White House was in fact involved in authorizing the leaks referred to, we would have a “Watergate moment”.

For videos of the press conference, see

White House Press Office, June 8, 2012.

For the C-Span video here. The question and answer on this issue begin at minute 23:00 of the video.

Other versions of the video follow:

RealClear Politics: “Obama: Being Accused Of Leaking Classified Memos Is ‘Offensive,'” Real Clear Politics Video, posted on June 8, 2012.

CNN: Higher definition video of portion of Obama response to question on leads at press conference. CNN.

For the transcript of the question and answer regarding leaks, see
White House Press Office, June 8, 2012.

It strains credulity to believe that the leaks of classified information involved here were made without some kind of White House knowledge or acquiescence, if only a wink and a nod. But it is, of course, possible.

The Trenchant Observer

observer@trenchantobserver.com
www.twitter.com/trenchantobserv

For links to other articles by The Trenchant Observer, click on the title at the top of this page to go to the home page, and then use the “Search” Box or consult the information in the bottom right hand corner of the home page. The Articles on Syria page can also be found here. The Articles on Targeted Killings page can also be found here.

EU “slaps” new sanctions on Syria—0bama’s debacle in Syria — Update #36 (April 14)

Monday, May 14th, 2012

EU “slaps” another round of sanctions on Syria

The European Union slapped another round of sanctions against Syria today, the 15th.

CNN Wire staff, “EU slaps new sanctions on Syria,” CNN, May 14, 2012 (updated 12:58 PM EDT).

How hard was the slap?

The EU added three individuals and two companies to its list of individuals and companies with travel and asset restrictions.

BRUSSELS—The European Union imposed visa bans and asset freezes Monday on three new people associated with Syrian President Bashar Assad’s regime — bringing to 128 the number of Assad supporters targeted by the bloc.

Michael Mann, spokesman for EU foreign policy chief Catherine Ashton, said two Syrian entities were also added to the boycott list, which now includes 43 Syrian companies, banks and other organizations.

The new measures, the 15th round of EU sanctions against Assad’s regime and its supporters, were adopted at a meeting of EU foreign ministers. The bloc will name the individuals and entities involved on Tuesday, Mann said.

–Slobodan Lekic, “EU adopts new sanctions against Syria’s regime,” Associated Press, May 14, 2012.

In a fitting commentary to the significance of this development, the photograph accompanying the story has the following heading:

EU foreign policy chief Catherine Ashton shows a
photo of the Empire State building in New York, that was lighted up for Europe day, in the European Union’s flag colors, prior to the start of an EU foreign affairs meeting at the European Council building in Brussels, Monday, May 14, 2012. (AP Photo/Yves Logghe)

12,000 people have been killed in Syria since March, 2011. This is Europe’s latest response.

What can be said?

The Trenchant Observer

observer@trenchantobserver.com
www.twitter.com/trenchantobserv

For links to other articles by The Trenchant Observer, click on the title at the top of this page to go to the home page, and then consult the information in the bottom right hand corner of the home page. The Articles on Syria page can also be found here.

“Analyst-in-Chief” muddies waters; “Commander-in-Chief” cannot be found

Tuesday, March 22nd, 2011

Urgent Messasge to President Obama: “Stop Talking!”

As a lawyer and former law professor, The Observer finds it painful to criticize one from his own profession.

As an international lawyer who is also a student of international politics and history, The Observer is constrained to advise the president, most urgently, to please stop talking to the media and analyzing what is going on in Libya. The place for the president’s analysis is in the councils of state, not competing for attention on CNN.

After creating a problem out of thin air with his too cute “spinning” of world perceptions of who is coordinating allied military actions against Libya, the president has now compounded his folly by acting as news analyst for the nation and advising us that Qadaffi may do this, or he may do that.

Please, Mr. President, resist the temptation to treat the world with your stream of consciousness analysis of what is going on in Libya, or anywhere else. We have enough news commentators. If they are wrong, you don’t have to correct them.

Please, just try to be an effective Commander-in-Chief, and lead this nation through these difficult and challenging times. Not with your words, but with your actions.

Respectfully,

The Trenchant Observer