Tag Archives: George W. Bush

Contra Syria Attack

30 Aug

At this stage Informed opinion agrees that the response to the presumed Assad regime’s responsibility for the use on August 21st of chemical weapons in Ghuta, a neighborhood in the eastern surrounding suburbs of Damascus, is intended to be punitive. This is a way of signaling that it is a punishment for the alleged use of chemical weapons, and at the same time denies any ambition to alter the course of the internal struggle for power in Syria or to assassinate Bashar el-Assad. Of course, if it achieved some larger goal unexpectedly this would likely be welcomed, although not necessarily, by such convergent  centers of concern on Syrian policy as Washington, Ankara, Riyadh, and Tel Aviv.

Why not necessarily? Because there is a growing belief in influential Western circles, highlighted in a cynical article by Edward Luttwak published a few days ago in the NY Times, [“In Syria, America Loses if Either Side Wins,” Aug. 24, 2013] that it is better for the United States and Israel if the civil war goes on and on, and there are no winners. Accorded to this warped reasoning, if Assad wins, it would produce significant regional gains for Iran, Russia, and Hezbollah; if the Syrian Free Army, and its Nusra Front and Al Qaeda allies win, it is feared that it would give violent extremist forces a base of operations that would likely work strongly against Western interests. Only Turkey, the frontline opponent of the Assad regime, and Saudi Arabia, the regional champion of Sunni sectarianism, stand to gain by resolving the conflict in favor of the Sunni-led opposition forces as that would both contribute, as Ankara and Riyadh see it, to greater regional stability, augment their preferred sectarian alignment, and inflict a major setback on Iran and Russia.

Turkey and Saudi Arabia are split on whether it matters that upon the fall of Assad, a regime would be defeated that has repeatedly committed crimes against humanity in waging a war against its own people. Their contradictory responses to the el-Sisi coup and massacres in Egypt are illuminating on this score: Turkey adhered to principle despite a sacrifice of its short-term material and political interests in the Middle East, while Saudi Arabia has rushed in to provide Cairo with massive economic assistance and a show of strong diplomatic support for a military takeover that is crushing the leading Muslim political organization in the country.

Another way of thinking about the grand strategy of the United States in the Middle East after the dust from the Arab Spring began to settle in the region is suggested by the noted Israeli peace activist and former Knesset member, Uri Avnery [“Poor Obama,” August 31, 2013]: the U.S. Government at work frantically behind the scenes to restore the function of governance to military dictators, with Egypt the new poster child. Avnery attributes these Machiavellian machinations to CIA masterminds swimming in dark waters, entrapping Obama by overriding his strong rhetorical support for democracy in the Arab world, articulated in his Cairo speech back in 2009.

The rationale for an American-led attack on Syria is mostly expressed as follows:

–America’s credibility is at stake after Obama ‘red line’ was crossed by launching a large-scale lethal chemical weapons attack; doing nothing in response would undermine U.S. global leadership;

–America’s credibility makes indispensable and irreplaceable contributions to world order, and should not jeopardized by continued passivity in relation to the criminal conduct of the Assad regime; inaction has been tried for the past two years and failed miserably [not clearly tried—Hilary Clinton was avowed early supporter of rebel cause, including arms supplies; recent reports indicate American led ‘special forces operations’ being conducted to bolster anti-Assad struggle];

–a punitive strike will deter future uses of chemical weapons by Syria and others, teaching Assad and other leaders that serious adverse consequences follow upon a failure to heed warnings posted by an American president in the form of ‘red lines;’

–even if the attack will not shift the balance in Syria back to the insurgent forces it will restore their political will to persist in the struggle for an eventual political victory over Assad and operate to offset their recently weakened position;

–it is possible that the attack will unexpectedly enhance prospects for a diplomatic compromise, allowing a reconvening of the U.S.-Russia chaired Geneva diplomatic conference, which is the preferred forum for promoting transition to a post-Assad Syria.

Why is this rationale insufficient?

–it does not take account of the fact that a punitive attack of the kind evidently being planned by Washington lacks any foundation in international law as it is neither undertaken in self-defense, nor after authorization by the UN Security Council, nor in a manner that can be justified as humanitarian intervention (in fact, innocent Syrian civilians are almost certain to loom large among the casualties);

–it presupposes that the U.S. Government rightfully exercises police powers on the global stage, and by unilateral (or ‘coalition of the willing’) decision, can give legitimacy to an other unlawful undertaking; it may be that the United States remains the dominant hard power political actor in the region and world, but its war making since Vietnam is inconsistent with the global public good, causing massive suffering and widespread devastation; international law and the UNSC are preferable sources of global police power than is reliance on the discretion and leadership of the United States at this stage of world history even if this results in occasional paralysis as evidenced by the UN’s failure to produce a consensus on how to end the war in Syria;

–U.S. foreign policy under President Barack Obama has similarities to that of George W. Bush in relation to international law, despite differences in rhetoric and style: Obama evades the constraints of international law by the practice of ‘reverential interpretations,’ while Bush defied as matter of national self-assertion and the meta-norms of grand strategy; as a result Obama comes off  as a hypocrite while Bush as an outlaw or cowboy; in an ideal form of global law both would be held accountable for their violations of international criminal law;

–the impacts of a punitive strike could generate harmful results: weakening diplomatic prospects; increasing spillover effects on Lebanon, Turkey, elsewhere; complicating relations with Iran and Russia; producing retaliatory responses that widen the combat zone; causing a worldwide rise in anti-Americanism.

There is one conceptual issue that deserves further attention. In the aftermath of the Kosovo NATO War of 1999 there was developed by the Independent International Commission the argument that the military attack was ‘illegal but legitimate.’[1] The argument made at the time was that the obstacles to a lawful use of force could not be overcome because the use of force was non-defensive and not authorized by the Security Council. The use of force was evaluated as legitimate because of compelling moral reasons (imminent threat of humanitarian catastrophe; regional European consensus; overwhelming Kosovar political consensus—except small Serbian minority) relating to self-determination; Serb record of criminality in Bosnia and Kosovo) coupled with considerations of political feasibility (NATO capabilities and political will; a clear and attainable objective—withdrawal of Serb administrative and political control—that was achieved). Such claims were also subject to harsh criticism as exhibiting double standards (why not Palestine?) and a display of what Noam Chomsky dubbed as ‘military humanism.’

None of these Kosovo elements are present in relation to Syria: it is manifestly unlawful and also illegitimate (the attack will harm innocent Syrians without achieving proportionate political ends benefitting their wellbeing; the principal justifications for using force relate to geopolitical concerns such as ‘credibility,’ ‘deterrence,’ and ‘U.S. leadership.’ [For an intelligent counter-argument contending that an attack on Syria at this time would be ‘illegal but legitimate,’ see Ian Hurd, "Bomb Syria, Even if it is Illegal," NY Times, August 27, 2013; also “Saving Syria, International Law is not the answer,” Aljazeera, August 27, 2013]

Protecting Snowden

4 Jul

Such self-designated ‘wise men’ of our time as David Brooks and Tom Friedman, highly influential opinion and opinionated writers of the NY Times, have been telling their readers that Edward Snowden was decent and intelligent, but overstepped the law by arrogating to himself the disclosure of the ‘total data’ surveillance programs of the National Security Agency of the U.S. Government. By deliberately releasing abundant evidence of the astonishing breadth and depth of surveillance, Snowden was clearly motivated by the concern that rights of privacy, the quality of democratic life, and respect for the sovereignty of foreign countries and the confidentiality of diplomatic events were being placed in jeopardy. For some, this bold decision to expose American intelligence gathering made Snowden a villain, called ‘a traitor’ by a variety of public officials including John Kerry, the Secretary of State. There is no doubt that Snowden is guilty of violating espionage laws, which automatically almost constitutes treason for those who possess an ultra-nationalist mentality. Those who think this way believe Snowden deserves to be punished to the limits of the law, and that foreign governments friendly to this country should accede to Washington’s request for his detention and expulsion to the United States to face charges.

Of course for many others Snowden is a hero for our times, actions that should be honored by a Nobel Prize. Snowden put democratic accountability ahead of his own career and security, knowingly placing himself at great risk by daring to challenge the security policies of the government of his own mighty country for the sake of avoiding a gathering Orwellian political storm. What President Obama speaking after the Snowden leaks described in Germany somewhat disingenuously as “a circumscribed, narrow system directed at us being able to protect our own people.” What protection of the American people have to do with listening in on the diplomatic communications of European Union members seems more than far fetched!

There are many sober voices declaring themselves worried about the dangerous implications of such a massive breach of national security, especially following the major discrediting disclosures of those recent master whistle blowers—Bradley Manning and Julian Assange. In effect, given the kind of security threats that exist in the post-9/11 world the public must trust the government to strike the right balance between protecting the country against threats to national security and upholding the liberty of its citizens and respecting the sovereignty of other countries. As Michael Hayden, former director of the CIA and later the NSA, put it after these events: “We are now going to target the U.S. as if it were a foreign country.” Should Snowden’s violation of his oath and of espionage laws be welcomed as ‘a safety valve,’ a check upon abusive government, or as a gaping hole in governmental operations that needs to be closed as tightly as possible? The Belt Way insiders’ argument is that unless this latter approach is taken governmental policymaking will suffer because the needed institutional confidence that secrets are kept will be lost.

I find the Big Brother fears more credible than these anxieties about leaks in the secrecy enclosures relied upon by supposedly constitutional governments in defiance of the democratic ethos of accountability, transparency, and participation. What one finds consistently in government practice is an excess of secrecy via promiscuous classification tendencies that seem frequently used often to avoid embarrassing politicians from exposing dubious behavior or protecting bureaucrats from second-guessing and hostile commentary by journalists and the public. What is evident is that the government, even in a country that prides itself on freedom and privacy, tends to view information gathering in a spirit similar to weaponry—do whatever the technology allows so long as the costs are reasonable and the risks can be contained at moderate levels. And with the advent of digitized information technology, the sky is the limit: the PRISM program that was what Snowden was working on in his role as private contractor in the employ of the consulting firm of Booz, Allen, and Hamilton, and —-, was an indiscriminate data collection process that didn’t confine its intrusions to those for whom there existed grounds of suspicion. Indeed, every person everywhere was now living under a cloud of suspicion, there were no roster of ‘usual suspects’ to be rounded up in the aftermath of serious criminal incidents. The distinction crucial for the political wellbeing of people living in a liberal society between suspect and citizen now seems superseded and irrelevant, and this is an ominous development that should be challenged.

Two major developments brought this unsavory reality into being, and given ‘libertarian politics’ a new credibility. First, the most feared existential security threat became associated with potential political extremists who could be anywhere, within or beyond national borders, with or without affiliations to a political network. Consider such instances as the Norwegian Islamophobic right wing sociopath, Anders Breivik, guilty of a massacre on July 22, 2011 or the Tsarnaev brothers who carried out the Boston Marathon bombers on April 15, 2013. It is truly the case that the presence of isolated individuals, as well as transnational terrorist networks, pose severe threats to the viability of constitutional democracies. Many have voiced fears that a repetition of 9/11 in the United States would produce a slide into a kind of reactive fascism, and thus some sacrificing of freedoms, placing our trust in elected leaders and representative institutions, and hoping for the best is a kind of situational necessity. Politicians contend that such information trolling in the private domains of peoples’ lives has already contributed to the avoidance of terrorist attacks and horrifying incidents in as many as 90% of the cases of successful prevention. That is, the kind of threat that dominates our current fears can only be addressed in a responsible manner by giving up any expectations of autonomous citizenship or the promises of accountable government. Such a democratic slippage may simply have become a fact of 21st century life about which most of society has accepted, even if with scant awareness of what is happening.

The second important factor is the ‘can do’ quality of digital technology as applied to the temptations of mass surveillance whether for purposes of governmental control or private profit. Information can be gathered, enlisting the social networking infrastructures of modern society, stored, analyzed, coded, and made available for a wide range of licit and illicit uses. There is a sinister continuity between the technological capabilities of the massive data collection program of the NSA known as PRISM and the lethal drone missions controlled by civilian operators acting far from any combat zone, carrying out battle plans based on the selection of targets from a kill list presented daily to the president, and approving in secret the execution of American citizens and those living in foreign countries who owe no allegiance to American laws. Such is the nature of the ‘global war’ unleashed by George W. Bush after 9/11 and continued by Barack Obama. There are reassurances that care is taken, efforts are made to minimize mistakes, and only the most imminent of threats are targets. The objective assessment of the killing fields tell a different story—of innocent persons killed, of ‘signature’ strikes targeting for death those against whom there is only vague circumstantial evidence, of a reign of terror in areas where suspects are supposed to be based.

In actuality, what Snowden did was surprisingly responsive to national security concerns, including the protection of secrecy surrounding controversial overseas undertakings. Snowden has indicated that he never had an intention to release any documents that implicate particular agents engaged in covert operations or that reveal the location of CIA bases in foreign countries. In effect, Snowden was acknowledging that the government has ‘secrets’ that deserve keeping, and that he was distinguishing these from the those that were not justified by security considerations and posed a severe threat to the future quality of constitutional democracy. It is undoubtedly the case, as Snowden has hinted, that he had good reason to believe without such an unauthorized disclosure, the public would have no way of finding out what was going on and no say in shaping the privacy/security balance, and the government would undoubtedly continue to rely on excessive claims of secrecy to insulate itself from procedures of accountability, including the rather unconvincing forms of oversight that are entrusted with avoiding wrongdoing in its surveillance gulag. I think there is good reason to conclude that it is only the obtrusiveness of whistleblowers that produces these occasional glimmers of sunlight that illumine to some degree the dark corridors of governmental power.

The three major whistleblowing incidents of the last half century bearing on national security, (Ellsberg (Pentagon Papers), Bradley Manning (Iraq and Afghanistan document trove), and Snowden (the NSA Prism Program of Surveillance) had one thing in come, disclosures of state crimes that had been long covered up, and were integral to structures of impunity that seem vital to the performance of the dirty work of empire. Daniel Ellsberg in a Salon interview with Brad Friedman on June 14, 2013 [Salon.com] insisted that a more permissive political atmosphere existed in 1972 when he released the Pentagon Papers. There was then at least the possibility of getting the story out without being thrown into prison under conditions of solitary confinement (Manning) or hounded as if a common criminal (Assange, and now Snowden). Under current conditions it seems as if the only way for Snowden to have some opportunity to give his reasons for doing what he did was to go abroad, and then seek asylum.

What seems most dismaying about the Snowden affair is the prosecutorial zeal of the Obama presidency, supposedly liberal in its outlook on matters of personal freedom and the values of constitutional government. What Snowden has done is so clearly ‘a political crime,’ if it is a crime at all, and in recognition of this there has existed since the French Revolution been seen as inconsistent with the generally desirable policy of inter-governmental cooperation in the apprehension of suspected criminals. In such circumstances it is unseemly to instruct the Vice President to call around the world exerting leverage to discourage grants of asylum or sanctuary to Snowden, or worse yet, to use American influence to interfere with international flights thought to be associated with Snowden’s attempt to seek asylum, itself a right conferred in Article 14(1) of the Universal Declaration of Human Rights. Maybe it is a legal stretch to insist on Snowden’s right of asylum considering that the ‘persecution’ he might face if returned to the United States would be nothing more (or less) than prosecution under applicable American criminal law, which presumably would be carried out in a judicially supervised manner as constitutionally prescribed by due process standards. But given the vindictive response to the Manning release of a cache of documents to WikiLeaks, and the refusal of the government to acknowledge the implications of policies that are criminal in nature, asylum should be granted to Snowden, and the failure to do so exhibits two features of present world order: American exceptionalism (would the US Government really turn over to China or Cuba a person who had risked everything to disclose state secrets to the world? The following statutory language is certainly suggestive of an answer: “No return or surrender shall be made of any person charged with the commission of any offense of a political nature.”); and the logic of major states that share an interest in collaborating with each other so as to keep the lid of secrecy covering their most nefarious practices.

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Ending Perpetual War? Endorsing Drone Warfare?

1 Jun

 

 

            That President Obama chose on 23 May to unveil his second term cautionary approach to counter-terrorism at the National Defense University epitomized the ambiguity of the occasion. The choice of venue was itself a virtual guarantee that nothing would be said or done on that occasion that challenges in any fundamental way the global projection of American military power. Obama’s skillfully phrased speech was about refining technique in foreign policy, achieving greater efficiency in killing, interrogating the post-9/11 war mentality, and all the while extolling the self-mystifying glories of American exceptionalism. That is, only the United States, and perhaps Israel and NATO, possessed an entitlement to use force at times and places of the actor’s choosing without consulting the UN, respecting the constraints of international law, and heeding the admonition in the Declaration of Independence to show “a decent respect for the opinions of mankind.” Such exceptionalism, especially as enacted by recourse to aggressive wars, invites resistance, polarizes political struggle, and defeats any hope that stability will be achieved by the gradual realization of global justice rather than through the crude tactics of hard power diplomacy and militarism.

 

            There were several points of light in the otherwise dark Obama firmament. Perhaps, the most promising aspect of Obama’s presentation was its carefully hedged call for reexamining the still prevailing response to the 9/11 attacks as  ‘perpetual war.’ From the outset this cautious, yet welcome, questioning represented an ironic inversion of Kant’s prescriptions for perpetual peace. In Obama’s words, “..a perpetual war—through drones or troop deployments—will prove self-defeating and alter our country in troubling ways.” Depending on how we read world history since 1939, it can be understood as an era of perpetual war with a brief intermission between the end of the Cold War and the 9/11 attacks. Certainly, during the course of this period the United States has been continuously mobilized to engage in major war on a moment’s notice, and that this posture has definitely militarizes state/society relations in the country. There was nothing in Obama’s speech to draw attention to the perils posed by such a militarized state, having achieve global military dominance, and creating a domestic ‘miliary-industrial complex’ that would make even Dwight Eisenhower tremble with fear. There were no benchmarks that would allow the Congress or the citizenry to appreciate that it was time to bring the war on terror to an end.

 

            Obama also appeared to question the openendedness of the 2001 unlimited legislative mandate to use force overseas without including any requirement of a specific prior procedure of Congressial approval in Authorization to Use Military Force Act (AUMF). In Obama’s words, “Our systematic effort to dismantle terrorist organizations must continue, but all wars, must end. That’s what history advises. That’s what our democracy demands.” At the same time, Obama avoided directly challenging this AUMF legislation enacted to give the government precisely the legal authority to use force anywhere and at any time to wage war against supposed terrorist adversaries and their governmental guardians. Such authority can be validly used even where there is no terrorist threat, as was the case for Iraq when it was invaded and occupied in 2003.  At this point, Obama was asking Congress “to determine how we can continue to fight terrorists without keeping America on a perpetual war-time footing.” He went on to say that what is needed is “to refine, and ultimately repeal, the AUMF mandate.” Whenever politicians qualify a recommendation with such words as ‘refine’ and ‘ultimately,’ it is an almost sure sign that an end game is not envisioned, and may not even be intended. What Obama made evident is that although he had the right instincts with respecting to changing course with respect to the war on terror, his political will to support any altered course of action was far too weak to produce action, or maybe even too feeble to generate a needed debate on security for the country and the world, given the realities of mid-2013. Obama seems to be comfortable with framing counter-terrorist security policy as war so long as it is moving toward an understanding that war on terror will become more limited in scope at some point, and that at least there will be announced an intention to declare that the war on terror is over.  Obama did not have the resolve to insist that incidents of terrorism should be hereafter handled as criminal acts, which is what happens in the rest of the world—this would certainly have been a major step back from the fire, and might even deserved to be treated as extinguish the fire set for the world on 12 September 2001. The nature of the Boston Marathon murders might have been just the right occasion to make the change, emphasizing the degree to which the major danger was being posed by extremists living within the country. It was no longer necessary to treat the world as a counter-terrorist battlefield.

 

            There is admittedly a genuine security challenge that was posed on 9/11: the United States is vulnerable to well-planned terrorist attacks on the many soft targets of a complex modern society. And although other countries are also subject to major attacks, as was Madrid train bombings in 2004 and the London attacks in 2007, no country is as likely to arouse extremist anger and resentment due to its global projection of hard power as is the United States, and no country is as fearful, despite its military dominance as measured by realist calculations, as is the United States. Such a mismatch suggests that the American global role requires adjustment to the logic of self-determination in the post-colonial world, that the protection of the last remnants of the colonial edifice is a losing effort, and a dangerous one.

 

            To be sure there was in Obama’s speech many rhetorical flourishes that were probably designed to please liberal critics of drone warfare and Guantanamo, the two most awkward features of his presidency.  Such rhetoric invited a comparison with the far more bellicose and imperial language relied upon by George W Bush, but Obama’s approach was in a form that was sufficiently nationalistic to take account of the sensitivities of the right wing jackals that give him little, or no slack. Obama voiced his commitments to fight political extremists wherever they are found, while abiding by law, living up to ethical standards, and upholding the Constitution.  He contended that his presidency “has worked vigorously to establish a framework that governs our use of force against terrorists—insisting upon clear guidelines, oversight and accountability that is now codified in Presidential Policy Guidance that I signed yesterday,” a boast bound to raise more than a few skeptical eyebrows. Obama also did acknowledge that “this new technology raises profound questions—about who is targeted, and why; about civilian casualties, and the risk of creating new enemies; about the legality of such strikes under U.S. and international law; about accountability and morality.” At the same time, this welcome willingness to suggest the need for some comprehensive rethinking was confusing, hedged by claims that all that has been done up to now has worked and that the drone war, despite a few mistakes, has at all stages been consistent with the international laws of war, the Constitution, and international morality. It is notable that Obama refers to ‘profound questions’ that deserve to be asked and answered, but craftily refrains from answering them himself, just as he was relatively polite to Medea Benjamin, when she interrupted his talk from the floor with a direct challenge to use his authority as Commander-in Chief to close Guantanamo, which he responded to by saying that she deserved an attentive audience, although he was in substantial disagreement with what she was proposing, but without saying why and how. In assessing Obama’s performance, I am reminded of the early downplaying  among Soviet dissenters of Mikhail Gorbachev’s claims to be a radical reformer: “He is giving us glastnost (freer speech) without perestroika (substantive and structural change), but he promised us both.”

 

 

            In large part Obama was reacting to a tsunami of recent criticism from around the world. His explanations at the National Defense University amounted to an admission that the conduct of drone warfare and the maintenance of Guantanamo, for better and worse, had severely eroded America’s diplomatic stature. Beyond this, such behavior had given rise to acute resentment directed against the United States, and was quite likely spawning the very extremists that the use of attack drones were supposed to be killing. The Obama presidency was clearly attempting to retreat from this precipice of disconnect without falling into an anticipated ambush staged by its obsessive detractors at home. As many have pointed out the speech was long on vague generalities, short on policy specifics. It called in several ways for a more ‘disciplined’ approach to the war on terror, yet at the same time claimed in some detail that what has been done during the Obama years was both ‘effective’ and ‘legal,’ and had been climaxed by the mission that killed Osama Bin Laden in 2011. In effect, the speech was acknowledging that the projection of American force around the world had become understandably problematic for many, but could be fixed by acknowledgements and a show of concern without making any discernable major shifts in behavior or objectives. Such a proposed tweaking of policy hardly qualifies as ‘profound’ even if its sentiments were to be fulfilled by such gradual shifts in policy as closing Guantanamo and minimizing reliance on drones, moves that at this point still seems quite unlikely.

 

            The speech was notably short even on those specifics that had been anticipated by those who gave their expert opinion as to what to expect. For instance, it was expected that the controversial and ethically outrageous ‘signature strikes’ whereby combat-age males have been targeted and killed in Pakistani tribal areas and in Yemen if they are seen congregating in a place supposedly frequented by terrorists, even if no further evidence exists as to their relationship to political violence, would be repudiated. Obama never even mentioned signature strikes. Nor did he refer to the supposed likelihood of an announcement that the CIA would be confined in the future to its primary role as a spy and intelligence gathering agency rather than acting in a variety of paramilitary modes. Even if this does happen at some point, drone policies relating to authorization and accountability will continue to be shrouded in secrecy and deniability whether or not major responsibility for the use of drones remains headquartered at Langley. Of course, the purported significance of such a reassignment of responsibility for the drones to the Pentagon may be typical liberal hype. It seems unrealistic to expect a great breakthrough in transparency and sensitivity to international law and morality just because the Pentagon rather than the CIA would be presiding over the attacks. It might be illuminating in this regard to ask Bradley Manning and Julian Assange what they thought about transparency at the Pentagon and its respect for international law..

 

            But there is much more at stake than was discussed in the lengthy speech. In trying to make the case that drone warfare is less invasive, resulting in fewer civilian casualties, Obama never even alluded to the severe degree to which attack drones are instruments of state terror, terrorizing the entire region exposed to their habitual use. Drone warfare, this supposedly miracle counter-terrorism weapons system, is in its enactment a new form of intense state terror that is enraging public opinion against the United States around the world, reactions not limited to the places subject to attack, although especially there. A Yemeni citizen, Farea al-Muslimi told the U.S. Senate in recent hearings, about attitudes toward drones in his home village, “..when they think of America, they think of the fear they feel at the drones over their heads.” In Pakistan, American drones have had a disastrously negative impact on public attitudes toward Islamabad’s relationship with the United States, evoking acute and widespread grassroots hostility throughout this key Asian country. Even in Afghanistan, where the political violence shows no signs of abating, the American handpicked leader, Hamid Karzai, is now saying that the prospects for Afghan stability and peace would be enhanced by the departure of American led NATO forces. This is a rather astounding about face for a leader handpicked years ago in Washington and long dependent on American largess and human sacrifice.

 

            Such realities should have at least tempted Obama to raise some genuinely profound questions about the viability and inherent morality of the continued U.S. insistence on projecting its military power to the far corners of the global. For whose benefit? At what costs? To what effects? But there was Obama silence about such underlying questions that are daily being asked elsewhere in the world.

 

            There is another line of prudential concern that was no where to be found in this less unconditional embrace of drones, reliance upon which was deglamorized to some degree, yet remains an embrace. Some 70 countries currently possess drones, although not all of these have acquired attack drones, but the day is not far off when drones will be part of the military establishment of every self-respecting sovereign state, and then what? Obama spoke about the right of the United States to kill or capture suspected ‘terrorists’ wherever they may be in the world if deemed by the government to be an imminent threat to American security interests and not amenable to capture. But is there not a de facto golden rule governing international relations: “what you claim the right to do to others, you authorize them to do to you.” Of course, this is often modified by invoking the geopolitical bronze super-rule that is generally operative, at least in relations with most of the non-West: “we can do to you whatever we wish or feel the need to do, and yet there is no legal, moral, or political precedent created that can be invoked by others.” American exceptionalism has long parted company with the central idea that international law is dependent for its effectiveness on the logic of reciprocity: namely, that what X does to Y, Y can do to X, or for that matter to Z, but with the technology of drones emergent, we may soon come to regret resting our claim on such a one-sided anti-law prerogative that encodes double standards. A hegemonic approach to international law has been relied upon in relation to nuclear weapons, with a somewhat similar pronouncement by Obama in 2009 to work ultimately toward a world without such weapons. Four years later the meager effort to realize such a vision should be a cautionary indication that the future military application of drones is unlikely to be significantly restricted so long as the United States finds their role useful, and given this prospect, a borderless future for violent conflict throughout the world should give Pentagon planners many a sleepless night.

 

            There is another feature of the Obama approach that bears scrutiny. The discipline and care associated with his plea for a more restrictive approach to counter-terrorism is basically entrusted to the suspect subjectivities of governmental good faith in Washington. At least, the Wikileaks disclosures should have taught American citizenry that secrecy at high levels of public sector policymaking is intended to place controversial behavior of government beyond public scrutiny and democratic accountability. Obama is asking the American people to put their trust in the judgment and values of bureaucrats in Washington so as to ensure that democracy can be restored in the country, and a better balance struck between security and the freedoms of the citizenry.  Perhaps, while waving the banner of national security, you can fool most of the people most of the time, but hopefully there are limits to such bromides from on high despite a compliant media. It should be noticed that the Obama presidency has done more to prevent and punish breaches of governmental secrecy than any previous political leadership. In relation to the criminality disclosed by Wikileaks the reaction was to do its best to prosecute the messenger while totally ignoring the message.  

 

            In most respects, the song that Obama sang at the National Defense Univerity did not conform to the melody. Obama refrained from taking what would have been the most natural and welcome step: belatedly putting the  genie of war back in its box, and finally reject this dysfunctional blending of war and crime. After all the deaths and displacements of the wars waged in Afghanistan and Iraq were major failures from the perspective of counter-terrorism, and it would appear that such an adjustment was overdue. The root error committed immediately after 9/11 was to move the fight against Al Qaeda and international terrorism from the discourse of crime to the framework of war without any kind of thoughtful rationale or appreciation of the adverse consequences. In the traumatic atmosphere that prevailed after the attacks, this rushed transition to war was partially done under the influence of neocon grand strategy that had been actively seeking a global writ to intervene well before the attacks occurred, especially in the Middle East. The Bush entourage made no secret of its search for a pretext to take advantage of what was then being called ‘the unipolar moment,’ a phrase no longer in fashion for obvious reasons. It needs to be remembered that back before 9/11 the Democrats were being chided for their wimpish foreign policy during the 1990s that wasted what was alleged to be a rare opportunity to create the sort of global security infrastructure that was needed to realize and protect the full potential of neoliberal globalization, which included a preoccupation with ensuring that the oil reserves of the Gulf remained accessible to the West. Although the United States has been chastened by its military setbacks in recent wars, its underlying grand strategy has not been repudiated or revised, and even now with so much at stake politically and militarily, there are strong pressures mounting to intervene more robustly in Syria and to launch yet another aggressive war, this time against Iran.

 

            If effect, we the peoples of the world, can take some slight comfort in the cautionary approach evident in the Obama tilt away from the hazards of ‘perpetual war,’ but until the more fundamental aspects of the American global role and ambitions, and its related militarism become the crux of  debate, advocacy, and policy, we and others cannot rest easy!

 

 

             

 

 

Comparing Presidential Elections: 2008 versus 2012

20 Oct

 

            In 2008, Barack Obama rekindled faith in the America electoral process for many, and revived the deeper promise of American democracy, bringing to the foreground of the national political experience a brilliant and compassionate African American candidate. When Obama actually won the presidency, it was one of the exciting political moments in my lifetime, and rather reassuring as a sequel to the dark years of George W. Bush’s presidency. Of course, many Americans didn’t share such positive feelings, and an important embittered minority believed that the election of a liberal-minded black man was the lowest point ever reached in national politics, challenging this segment of society that now was deeply alienated from the prevailing political current to mobilize their forces so as to win back control of the country on behalf of white Christian Americans, and also a time to indulge such absurd scenarios as an imminent Muslim takeover of the society. Such polarization, gave rise to an Islamophobic surge that revived the mood of fear and paranoia that followed upon the 9/11 attacks and was reinforced by evangelical enthusiasm for Israel. In this regard, the Obama phenomenon was a mixed blessing as it contributed to a rising tide of rightest politics in the United States that poses unprecedented dangers for the country and the world.

 

            Nevertheless, as mentioned, Obama’s campaign and election was at the time a most welcome development, although not entirely free from doubts. From the outset my hopes were tinged with concerns, although I did my best to suspend disbelief. All along I found little evidence that Obama’s leadership would liberate the governing process from its threefold bondage to Wall Street, the Pentagon, and Israel.  Such a political will to mount such a challenge was never in evidence, and never materialized. Even in lucid moments, however, I reasoned it was important to elect Obama, despite his endorsement of a woefully deficient set of foreign policy assumptions, because more would be done to give assistance to those impoverished and hit by unemployment and home foreclosures, better judges and diplomats would be appointed, and more attention would be given to climate change. After four years, I continue to believe that these differences matter sufficiently to make it irresponsible not to support Obama and the Democratic Party, especially in so-called swing states.

 

And if there was excitement in much of America during the 2008 electoral campaigned, it was mild compared with pro-Obama sentiments in the rest of the world four years ago, which reached dizzying heights after his victory. This enthusiasm was a compound of several elements: Obama’s success lifted confidence throughout the world that the United States could again play a benevolent role on the global stage and also because it validated that mythic image of America as a country where it was truly possible for anyone in the society, including members of minorities long discriminated against, to reach the pinnacles of wealth and power provided only that they were sufficiently talented and determined, and some would add, lucky. There remains little doubt that if the peoples of the world were allowed to vote in American elections, as might be appropriate in a globalized world, it would have produced a landslide of unprecedented magnitude in Obama’s favor.

 

All at once in 2008 it became evident that an American presidential election was no longer just a national  ritual that bemused outsiders watched as a kind of spectacle but a global event that affected the entire world. In fact the selection of a leader for the United States might be in some respects more important for other societies than for America, and further that the outcome of an American election could have a greater impact on a country in Asia, Africa, and Latin America than the effects of their own national elections, a significance reinforced by intense global media coverage of the American election in real time. In this respect, the 2008 election of Barack Obama made many of us aware that ‘political globalization’ was now as much a part of our experiences as ‘economic globalization.’ We were no longer living in a world where the standard map based on the borders of territorial sovereign states depicted the essential organization of political life on the planet. Our globalizing world had made the geopolitical cartography of influence much more spatially elusive, almost impossible to depict visually, but no less real.

 

Overall, the initial candidacy and election of Obama was, despite my qualms, more about hope than fear. There were concerns to be sure that the McCain/Palin Republican opposition would be dangerous for the world, but such anxieties were relatively subdued, and did not extinguish the strong positive expectations generated by Obama. And these hopes seemed somewhat justified in the first months of his presidency. In April Obama delivered a visionary speech in Prague that articulated a strong commitment to work toward a world without nuclear weapons. The newly elected president also seemed determined to carry out his campaign pledge to end the Iraq War in a responsible fashion, although this welcome move was offset by a disquieting hint that such a demilitarizing move in Iraq would be balanced by an increased commitment to prevailing in the ongoing war for the control of Afghanistan.

 

 

In June Obama made a relatively forthcoming speech in Cairo promising a new more positive relationship with the Islamic world as a whole and to the Middle East in particular. The president referred to the long ordeal of the Palestinian people and proclaimed his dedication to achieving a peaceful and just resolution of the Israel/Pa;lestine conflict, including a most reasonable call upon Israel to freeze all settlement expansion while peace negotiations were taking place. That this call on Israel to stop unlawful activity during negotiations was treated by the media as such a bold step tells us just how biased the mainstream attitude toward the conflict had become, and when Israel rejected at Obama ‘s moderate plea it experienced no adverse consequences, although the White House was put on the defensive because it had dared to push Israel to take a step that was against its wishes. This initiative, followed by its withdrawal, demonstrated to the world the extent to which the United States Government was in Israel’s corner, was revealed to all who cared to notice that the only superpower in global politics was a paper tiger when it came to the pursuit of a just outcome of the conflict.

 

            As already indicated, I half expected disappointments in 2008. I worried about Obama’s typical liberal effort to demonstrate his tough approach to national security including support for a bloated defense budget in the face of a fiscal and employment crisis, about his lame effort to distinguish between Iraq as a bad war and Afghanistan as a war necessary for American security, and hence a good war. Also, I was disturbed by the way Obama dumped Rev. Jeremiah Wright when he became a liability to his electoral campaign, seemed embarrassed by his friendship with the distinguished Palestinian political historian, Rashid Khalidi, and made Rahm Emanuel chief of staff, as his first major appointment. Obama surrounded himself with economic advisors who were the same folks that had collaborated with the banks, hedge funds, and big brokerage houses in the 1990s to facilitate the huge regressive redistribution of wealth in the spirit of ‘casino capitalism.’ Unfortunately, these telltale signs of weakness of principle and ideology were an accurate foretaste of what was in store for the country during the next four years, although it apparently never dawned on the Nobel Peace Prize Committee to withhold its coveted award until Obama demonstrated that he was a deserving recipient, which sadly he never did.

 

            What happened during the first term of the Obama presidency is definitely disappointing, although it is only fair to acknowledge that extenuating circumstances existed. Obama was dealt ‘a bad hand’ in the form of the worst economic crisis since the Great Depression of the 1930s. American society was sliding to the right as exhibited by the rise of the Tea Party, and the election of increasingly reactionary politicians as senators and congressmen, creating the most rightwing Congress in memory.  It was difficult to govern in such a setting, and Obama compounded the difficulties by moving more than half way to meet the unreasonable demands of the opposition, and continued to do so even in the face of their clear unwillingness to reciprocate in a corresponding manner. Also, the pressures mounted by Israel and its formidable AIPAC lobby led the White House to back pedal awkwardly with respect to its efforts to create an atmosphere conducive to a balanced peace process for Israel and Palestine. On other issues, as well, Obama followed the pollsters and the party insiders more than principle, and failed to do what was best for the country and the world. After promising to take climate change seriously, Obama led an international effort to avoid imposing legal constraints on carbon emissions, and throughout his reelection campaign in 2012 has done his best to avoid the looming challenge of global warming aside from blandly promoting energy independence and green technology. As a result, the near unanimous scientific consensus on the urgent need for mandatory strict limits on carbon emissions has been disastrously pushed further and further into the background of public consciousness.

 

            For me the 2012 elections have a different tone and relevance,  that is not less consequential than in 2008, although absent the uplift. I believe this time around the stakes in the presidential election have been reversed. The upcoming election is more about fear than hope. The outcome is as fateful, or possibly more so, for the American people and the world, especially those living in the Middle East, but fateful also in the sense of avoiding the worst, not hoping for the best, or at least something better. Romney’s election, even if he means only 50% of what he is saying, could lead to military confrontation with Iran, a completely free hand for Israel, an effort to undermine and control democratic forces in the main Arab countries, a trade war with China, a deepening of the world financial and employment crises, reduced respect for human rights, especially the reproductive rights of women, and a return to the overt lawlessness of the Bush presidency. Obama if reelected would likely be a more prudent leader, although continuing to throw the weight of American influence mostly on ‘the wrong side of history.’ In this sense, although prudence is to be preferred to recklessness, there are no major principled differences between the candidates when it comes to foreign policy (on domestic policy there is). Romney proposes that the U.S. stay longer in Afghanistan, move closer to an attack mode with Iran, and challenge China more vigorously on economic policy, and Obama agrees with all these positions but pursues them in a more nuanced way, with a greater seeming sensitivity to the risks and pitfalls, but nevertheless adhering to the same misguided and regressive policy options.

 

            When fear rather than hope shapes our political consciousness, the effect on the citizenry is likely to be despair. Such an effect induces collective depression and encourages extremisms. What is also scary is the degree to which those who are making us fearful are being aided and abetted by the deep pockets of extremist billionaires who seem clearly to sense their ability in this period to buy enough votes to distort the will of the citizenry, and if they should be successful will step up to the policy window to cash in their chips, which could produce some disastrous results at home and abroad. In the background, of course, is the disappointment with the political consciousness of the citizenry that seems so receptive to such a dysfunctional and menacing political agenda as is being presented to them by the Republican Party; it does inspire confidence that the democratic way can lead toward sustainability, security, and justice in the years ahead.

 

            With such an understanding why not support the Green Party candidacy of Jill Stein and Cheri Honkala? Their positions seem principled and admirable, and their alignments are with the poor and with the environment. Their platform is inspirational and congenial compared to what the Republicans and Democrats offer the American people. But their capacity to govern is untested, and their level of support is minimal.

 

            I ask myself whether a vote for the Green Party in light of these circumstances would be a wasted vote? It evades the question to observe that in some states, say California or Nebraska, the outcome is so clear that takingsides as between the candidates put forward by the Democrats and Republicans is meaningless. The real test is whether it is worth voting for the Green Party candidates as a matter of principle because they are decent enough not to stoop to the dirty games of money and the accommodation of special interests that are poisoning the political process in the United States. At this point, I am not able to resolve my doubts. Is it irresponsible, given what is at stake, not to vote for the lesser of evils? Is it a misunderstanding of modern democracies to expect clear choices based on principled positions, respect for international law and human rights, dedication to environmental protection, sustainable economic policies, and a commitment to social justice for the entire population? Should we not insist on this misunderstanding to avoid ourselves being entrapped in a demeaning morality that overlooks crimes of state? (for instance, drone terror)

 

            I must admit if living in a swing state I would vote for Obama, not having sufficient courage of my convictions to risk symbolic responsibility for a Romney victory!

 

Soul Searching and Common Sense After Oak Creek

7 Aug

 

 

           President Obama has responded to the killing of six members of the Gurdwara in Oak Creek, Wisconsin this last Sunday with these words: “All of us recognize that these kinds of terrible, tragic events are happening with too much regularity. It is time for soul searching and we need to think of ways to reduce violence.” What is most noticeable here, as it was in Obama’s tepid message of consolation to the families of the victims of the Aurora movie theater shooting of two week ago, is this reality: party politics trumps moral principle and even common sense in the aftermath of these extreme challenges to civic peace in America. To fail to mention the grotesque absurdity of legally allowing almost everyone in the United States to buy assault weapons and large quantities of ammunition online or at neighborhood shops can only be explained by the intimidating influence of the gun lobby, and its accompanying gun culture, in this country as currently heightened by an ongoing, nasty presidential election campaign. But should we, even if of liberal or progressive persuasion, suspend moral accountability to this degree in deference to the cynical pragmatics of electoral politics? And if we continue to do so will we not keep paying the price of what Mr. Obama called “tragic events..happening with too much regularity” and soon out of denial stop even wondering ‘why’? Can we give national leaders this kind of a free pass without renouncing our duties as citizens?

 

            We can be thankful that independent commentators such as Mark Juergensmeyer had the moral forthrightness and political integrity to view Wade Michael Page as a ‘Christian terrorist,’ and not to allow references to ‘Islamic terrorists’ to serve as a stand alone mobilizing resource for the Islamphobic forces that have been so dangerously active and aggressive in the years since 9/11, seemingly with ever growing intensity and ferocity.  Even the police commander in Wisconsin described Page, although hesitantly, as a ‘domestic terrorist.’ ‘Christian terrorist’ seems more accurate as it calls our attention to Page’s obvious intent to kill at random innocent members of a non-Christian religious faith for the sake of restoring the purity of a white Christian nation. It is probable that Page wrongly regarded this Sikh community as Muslim, and in his twisted mind thought he was avenging 9/11 in keeping with a tattoo on his body. Juergensmeyer also reminds us of the similar crusader mentality that the Norwegian killer, Anders Breivik, also an adherent of a white and Christian supremacist credo. So we can ask why has our president not yet used the word ‘terrorism’ when addressing such horrifying incidents of homegrown violence? “The answer my friend..” In this instance, it seems to be a political wind of hurricane force!

 

            Although the time has certainly arrived when genuine soul-searching would involve a questioning as to whether the Second Amendment of the U.S. Constitution should not now be cast aside as a relic of history, such a deep interrogation of our national wellbeing is far too much to expect from any elected political leader. But what about the famed marketplace of ideas? Didn’t George W. Bush tell the American people after the 9/11 attacks that they hate us for our freedoms? Is it not time we acted as if we had a few? After all conferring “the right to bear arms” in early 21st century America seems to have become an unbearable and anachronistic threat to the future of democratic public order, and should at least be high on the agenda of late night talk shows even if at first limited to HBO contrarians such as Bill Mayer and alternative media iconoclasts.  Can we not as citizens raise such questions without fear of a dreadful, maybe dangerous, backlash? Probably not is the sad answer. It is odd to realize that those that create this climate of hate are themselves sitting pretty thanks to Fox News and the Romney entourage of reactionary billionaires.

 

            Two helpful initiatives do not require any soul searching, just common sense. But neither is likely to be ever implemented without the emergence of a militant grass roots movement that achieves a radical recasting of the relationship between government and citizens in light of present day realities:

 

                        –comprehensive gun control, and the unconditional outlawing of the sale or possession of assault weapons, as well as all automatic and semi-automatic rifles and pistols;

 

                        –the monitoring, regulation, and criminalization of white supremacy and neo-Nazi groups in a manner equivalent to the treatment of Islamic and other groups suspected of violent intentions. In all these instances of prudential surveillance, the civil rights of those targeted for scrutiny need to be respected.

 

            As American citizens we should no longer accept presidential excuses for accommodating pressure groups and lobbyists who are foisting these violent and outrageous forms of legalized anarchy on our society. We certainly do continue also to need protection from the tyrannies of state power, which was the original historical justification for keeping popular militias from being disarmed, but free access to guns are clearly no longer the way to ensure the preservation of our liberties as a people, if indeed they ever were. On the contrary, these recent incidents of mass killing provide the government with cover to hide an unmistakable drift toward authoritarian rule in the name of providing security.

 

            The monitoring by the FBI and Homeland Security of the extreme right should no longer be derailed by their conservative allies in Congress. Contrary to the national mood, it is not Moslems that are the main subversive threat active in American society, but it is the rise of the militant right wing that poses a mortal threat to the future of the republic. These forces are being emboldened by private sector militarization that is still treated even by mainstream America as a sacred right. The New York Times reports in a front page story on August 7, 2012 that conservatives in Congress objected to a 2009 FBI/Homeland Security report, “Rightwing Extremism” that sensibly warned of rising dangers of racially motivated violence due to the election a black president and the continuing recession. In response to this criticism, the Secretary of Homeland Security, Janet Napolitano, not only withdrew the report and apologized for its flaws, but also apparently greatly reduced the number of analysts monitoring the activities of these racist and neo-Nazi skinhead groups. It is not too late to demand her resignation as a sign of good intentions to lessen the prospect of the regularity of such tragic events.

 

            In essence, the Oak Creek atrocity warns us anew of the promiscuity of violent libertarianism and the associated dangers posed by right-wing extremism. If we wait patiently for our government and its leaders to do the right thing we are almost sure to be disappointed. Hopefully, our better angels will offer more activist counsel!

 

Kuala Lumpur War Crimes Tribunal: Bush and Blair Guilty

29 Nov

This post is modified version of a text published by Al Jazeera a few days ago. It is a sequel to the piece entitled “Toward a Jurisprudence of Conscience,” and will be followed by an assessment of the Russell Tribunal on Palestine session in Cape Town, South Africa investigating the allegations that Israel is guilty of imposing apartheid on the Palestinian people, considered by the Rome Treaty framework of the International Criminal Court to be a crime against humanity.

***************

 


Criminal Justice in Kuala Lumpur

 

            In Kuala Lumpur, after two years of investigation by the Kuala Lumpur War Crimes Commission (KLWCC), a tribunal (Kuala Lumpur War Crimes Tribunal or KLWCT) consisting of five judges with judicial and academic backgrounds reached a unanimous verdict that found George W. Bush and Tony Blair guilty of crimes against peace, crimes against humanity, and genocide as a result of initiating the Iraq War in 2003, and in the course of maintaining the subsequent occupation. The proceedings took place over a four day period from November 19-22, and included an opportunity for court appointed defense counsel to offer the tribunal arguments and evidence on behalf of the absent defendants who had been invited to offer their own defense or send a representative, but declined to do so. The prosecution team was headed by two prominent legal personalities with strong professional legal credentials: Gurdeal Singh Nijar and Francis Boyle. The verdict issued on November 22, 2011 happens to coincide with the 48th anniversary of the assassination of John F. Kennedy.

 

            The tribunal acknowledged that its verdict was not enforceable in a normal manner associated with a criminal court operating within a sovereign state or as constituted by international agreement as is the case with the International Criminal Court or by acts of the United Nations as occurred in the establishment of the ad hoc International Criminal Tribunal for former Yugoslavia. But the KLWCT by following a juridical procedure purported to be operating in a legally responsible manner, which would endow its findings and recommendations with a legal weight that seems expected to extend beyond a moral condemnation of the defendants, but in a manner that is not entirely evident.

 

            The KLWCT added two ‘Orders’ to its verdict that had been adopted in accordance with the charter of the KLWCC that controlled the operating framework of the tribunal: 1) Report the findings of guilt of the two accused former heads of state to the International Criminal Court in The Hague; 2) Enter the names of Bush and Blair in the Register of War Criminals maintained by the KLWCC.

 

            The tribunal these Orders by adding recommendations to its verdict: 1) Report findings in accord with Part VI (calling for future accountability) of the Nuremberg Judgment of 1945 addressing crimes of surviving political and military leaders of Nazi Germany; 2) File reports of genocide and crimes against humanity at the International Criminal Court in The Hague; 3) Approach the UN General Assembly to pass a resolution demanding that the United States end its occupation of Iraq; 4) Communicate the findings of the tribunal to all members of the Rome Statute (governing the International Criminal Court) and to all states asserting Universal Jurisdiction that allows for the prosecution of international crimes in national courts; 5) Urge the UN Security Council to take responsibility to ensure that full sovereign rights are vested in the people of Iraq and that the independence of its government be protected by a UN peacekeeping force.

 

The Anti-War Campaign of Mahathir Mohamed

 

            These civil society legal initiatives are an outgrowth of a longer term project undertaken by the controversial former Malaysian head of state, Mahathir Mohamed, to challenge American-led militarism and to mobilize the global south to mount an all out struggle against the war system.  This vision of a revitalized struggle against war and post-colonial imperialism was comprehensively set forth in Mahathir’s remarkable anti-war speech of February 24, 2003, while still Prime Minister, welcoming the Non-Aligned Movement to Kuala Lumpur for its XIIIth Summit. Included in his remarks on this occasion were the following assertions that prefigure the establishment of the KLWCC and KLWCT:  “War must be outlawed. That will have to be our struggle for now. We must struggle for justice and freedom from oppression, from economic hegemony. But we must remove the threat of war first. With this Sword of Democles hanging over our heads we can never succeed in advancing the interests of our countries.
War must therefore be made illegal. The enforcement of this must be by multilateral forces under the control of the United Nations. No single nation should be allowed to police the world, least of all to decide what action to take, [and] when.”
Mahathir stated clearly on that occasion that his intention in criminalizing the behavior of aggressive war making and crimes against humanity was to bring relief to victimized peoples with special reference to the Iraqis who were about to be attacked a few weeks later and the Palestinians who had long endured mass dispossession and an oppressive occupation. This dedication of Mahathir to a world without war was reaffirmed through the establishment of the Kuala Lumpur Foundation to Criminalize War, and his impassioned inaugural speech opening a Criminalizing War Conference on October 28, 2009.

 

            On February 13, 2007 Mahathir called on the KLWCC to prepare a case against Bush and Blair whom he held responsible for waging aggressive warfare against Iraq. Mahathir, an outspoken critic of the Iraq War and its aftermath, argued at the time that there existed a need for an alternative judicial forum to the ICC, which was unwilling to indict Western leaders, and he was in effect insisting that no leader should any longer be able to escape accountability for such crimes against nations and peoples. He acknowledged with savage irony the limits of his proposed initiative: “We cannot arrest them, we cannot detain them, and we cannot hang them the way they hanged Saddam Hussein.” Mahathir also contended that “The one punishment that most leaders are afraid of is to go down in history with a certain label attached to them..In history books they should be written down as war criminals and this is the kind of punishment we can make to them.” With this remark Mahathir prefigured the KLWCC register of war criminals that has inscribed the names of those convicted by the KLWCT. Will it matter?

Does such a listing have traction in our world? Will future leaders even know about such a stigmatizing procedure? I think civil society is challenged to

do its best to build ‘negative’ monuments in the public squares of global consciousness constructed with a deliberate intent to disgrace those guilty of crimes against peace and crimes against humanity. For too long our public squares have been adorned with heroes of war!

 

            In his 2007 statement Mahathir promised that a future KLWCT would not in his words be “like the ‘kangaroo court’ that tried Saddam.” Truly, the courtroom proceedings against Saddam Hussein was a sham trial excluding much relevant evidence, disallowing any meaningful defense, culminating in a grotesque and discrediting execution. Saddam Hussein was subject to prosecution for multiple crimes against humanity, as well crimes against the peace, but the formally ‘correct’ trappings of a trial could not obscure the fact that this was a disgraceful instance of ‘victors’ justice. Of course, the media, to the extent that it notices civil society initiatives at all condemns them in precisely the same rhetoric that Mahathir used to attack the Saddam trial, insisting that the KLWCT is ‘a kangaroo court,’ ‘a circus,’ a theater piece with pre-assigned roles.

 

            The KLWCT did I think make a mistake by establishing a defense team for Bush and Blair, and then failing to present their best possible arguments. Instead, a sheepish defense based on their acknowledging human failings for engaging in criminal conduct did create an impression that this ‘tribunal’ was not assessing the legal merits of the charges, but merely in reinforcing the preordained guilt of these particular individuals. In reporting on the defense effort, the following excerpt is illustrative of this self-discrediting as aspect of the approach taken by the KLWCT: “Lead Defense Counsel continued, ‘Had George W. Bush said  ‘we know who you are, we know what you did, and we forgive you,’ the world could have been a much different place.  But, instead, Afghanistan, Iraq, Guantanamo happened.  We are fallible human beings.  We make mistakes. And the Defense stated that the defense of Bush and Blair defense is that the accused ‘are human.’” Such a mock atonement, which does not correspond with the continuing effort of these former leaders to justify their Iraq War policy, was entirely inappropriate and erodes both the persuasiveness and credibility of the undertaking. It may be that an empty chair would have been the most suitable way to acknowledge the absence of the defendants from the courtroom, despite being given an opportunity to

present their best defense, or if it was decided to mount a defense on their behalf, then it should have done as skillfully and persuasively as possible.

The KLWCT has already announced a subsequent session devoted to the torture allegations directed at such American political leaders as former Vice President, Dick Cheney, and former Secretary of Defense, Donald Rumsfeld. Hopefully, the question of how to handle absent defendants will be handled in a better manner. The basic choice is whether to mount a genuine defense or to forego a defense on the belief that the purpose of the tribunal is to document the allegations and to pass judgment in overcome the refusal of governmental and inter-governmental judicial institutions to address such geopolitically sensitive issues. It is not clear whether the KLWCT effort to imitate the criminal procedures of tribunals constituted by the state system if the best model for these civil society initiatives. Perhaps, it is time to evolve a distinctive language, norms, institutions, and procedures that

reflect both the populist foundations of a jurisprudence of conscience.

 

            Although receiving extensive local coverage, Western media without exception has ignored this proceeding against Bush and Blair, presumably considering it as irrelevant and a travesty on the law, while giving considerable attention to the almost concurrent UN-backed Cambodia War Crimes Tribunal prosecuting surviving Khmer Rouge operatives accused of genocidal behavior in the 1970s. For the global media, the auspices make all the difference.

 

 

Universal Jurisdiction

 

            The KLWCT did not occur entirely in a jurisprudential vacuum. It has long been acknowledged that domestic criminal courts can exercise Universal Jurisdiction for crimes of state wherever these may occur, although usually only if the accused individuals are physically present in the court. In American law the Alien Tort Claims Act allows civil actions provided personal jurisdiction of the defendant is obtained for crimes such as torture committed outside of the United States. The most influential example was the 1980 Filartiga decision awarding damages to a victim of torture in autocratic Paraguay (Filartiga v. Peña 620 F2d 876). That is, there is a sense that national tribunals have the legal authority to prosecute individuals accused of war crimes wherever in the world the alleged criminality took place. The underlying legal theory is based on the recognition of the limited capacity of international criminal trials to impose accountability in a manner that is not entirely dictated by geopolitical priorities and reflective of a logic of impunity. In this regard, UJ has the potential to treat equals equally, and is very threatening to the Kissingers and Rumsfelds of this world, who have curtailed their travel schedules. The United States and Israel have used their diplomatic leverage to roll back UJ authority in Europe, especially the United Kingdom and Belgium.

 

 

The Move to Civil Society Tribunals

 

            To a certain extent, the KLWCT is taking a parallel path to criminal accountability. It does not purport to have the capacity to exert bodily punishment or impose a financial penalty, and rather stakes its claims to effectiveness on publicity, education, and symbolic justice. Such initiatives have been undertaken from time to time since the Russell Tribunal of 1966-67 to address criminal allegations arising out of the Vietnam War whenever there exists public outrage and an absence of an appropriate response by governments or the institutions of international society. The Lelio Basso Foundation in Rome established in 1976 a Permanent Peoples Tribunal (PPT) that generalized on the Russell experience. It was founded on the belief that there was an urgent need to fill the institutional gap in the administration of justice worldwide that resulted from geopolitical manipulation and resulting formal legal regimes of ‘double standards.’ Over the next several decades, the PPT addressed a series of issues ranging from allegations of American intervention in Central America and Soviet intervention in Afghanistan to contentions about the denial of human rights in the Marcos dictatorship in the Philippines, the dispossession of Indian communities in Amazonia, and the denial of the right of self-determination to the Puerto Rican people.

 

            The most direct precedent for KLWCT was World Tribunal on Iraq held in Istanbul (WTI) in 2005, culminating a worldwide series of hearings carried on between 2003-2005 on various aspects of the Iraq War. As with KLWCT it also focused on the alleged criminality of those who embarked on the Iraq War. WTI proceedings featured many expert witnesses, and produced a judgment that condemned Bush and Blair among others, and called for a variety of symbolic and societal implementation measures. The jury Declaration of Conscience included this general language: “The invasion and occupation of Iraq was and is illegal. The reasons given by the US and UK governments for the invasion and occupation of Iraq in March 2003 have proven to be false. Much evidence supports the conclusion that a major motive for the war was to control and dominate the Middle East and its vast reserves of oil as a part of the US drive for global hegemony… In pursuit of their agenda of empire, the Bush and Blair governments blatantly ignored the massive opposition to the war expressed by millions of people around the world. They embarked upon one of the most unjust, immoral, and cowardly wars in history.” Unlike KLWCT the tone and substance of the formal outcome of the Iraq War Tribunal was moral and political rather than strictly legal, despite the legal framing of the inquiry. For a full account see Muge Gursoy Sokmen, World Tribunal on Iraq: Making the Case Against War (2008).

 

Justifying Tribunals of Popular Justice and Public Conscience

 

            Two weeks before the KLWCT, a comparable initiative in South Africa was considering allegations of apartheid directed at Israel in relation to dispossession of Palestinians and the occupation of a portion of historic Palestine (Russell Tribunal on Palestine, South African Session, 5-7 November 2011). All these ‘juridical’ events had one thing in common: the world system of states and institutions was unwilling to look a particular set of facts in the eye, and respond effectively to what many qualified and concerned persons believed to be a gross historical and actual circumstance of injustice. In this regard there was an intense ethical and political motivation behind these civil society initiatives that invoked the authority of law. But do these initiatives really qualify as ‘law’? A response to such a question depends on whether the formal procedures of sovereign states, and their indirect progeny—international institutions—are given a monopoly over the legal administration of justice. I would side with those that believe that people are the ultimate source of legal authority, and have the right to act on their own when governmental procedures, as in these situations, are so inhibited by geopolitics that they fail to address severe violations of international law.

 

            Beyond this, we should not neglect the documentary record compiled by these civil society initiatives operating with meager resources. Their allegations are almost always exhibit an objective understanding of available evidence and applicable law, although unlike governmental procedures this assessment is effectively made prior to the initiation of the proceeding. It is this advance assurance of criminality that provides the motivation for making the formidable organizational and fundraising effort needed to bring such an initiative into play. But is this advance knowledge of the outcome so different from war crimes proceedings under governmental auspices? Indictments are made in high profile war crimes cases only when the evidence of guilt is overwhelming and decisive, and the outcome of adjudication is known as a matter of virtual certainty before the proceedings commence. In both instances the tribunal is not really trying to determine guilt or innocence, but rather is intent on providing the evidence and reasoning that validates and illuminates a verdict of guilt and resulting recommendations in one instance and criminal punishment in the other. It is of course impossible for civil society tribunals to enforce their outcomes in any conventional sense. Their challenge is rather to disseminate the judgment as widely and effectively as possible. A PPT publication in book form of its extensive testimony and evidence providing the ethical, factual, and legal rationale for its verdict proved sometimes to be surprisingly influential. This was reportedly the case in exposing and generating oppositional activism in the Philippines in the early 1980s during the latter years of the Marcos regime.

 

The Legalism of the KLWCT

 

            The KLWCT has its own distinctive identity. First of all, the imprint of an influential former head of state in the country where the tribunal was convened gave the whole undertaking a quasi-governmental character. It also took account of Mahathir’s wider campaign against war in general. Secondly, the assessing body of the tribunal was composed of five distinguished jurists, including judges, from Malaysia imparting an additional sense of professionalism. The Chief Judge was Abdel Kadir Salaiman, a former judge of Malaysia’s federal court. Two other persons who were announced as judges were recused at the outset of the proceedings, one because of supposed bias associated with prior involvement in a similar proceeding, and another due to illness. Thirdly, there was a competent defense team that presented arguments intended to exonerate the defendants Bush and Blair, although the quality of the legal arguments offered was not as cogent as the evidence allowed.

 

            Fourthly, the tribunal operated in rather strict accordance with a charter that had been earlier adopted by the KLWCC, and imparted a legalistic tone to the proceedings. It is this claim of legalism that is the most distinctive feature of the KLWCT in relation to comparable undertakings that rely more on an unprofessional and loose application of law by widely known moral authority personalities and culturally prominent figures who make no pretense of familiarities with the technicalities of legal procedure and the fine points of substantive law. In this respect the Iraq War Tribunal (IWT) held in Istanbul in 2005 was more characteristic, pronouncing on the law and offering recommendations on the basis of a politically and morally oriented assessment of evidence by a jury of conscience presided over by the acclaimed Indian writer and activist Arundhati Roy and composed of a range of persons with notable public achievements, but without claims to expert knowledge of the relevant law, although extensive testimony by experts in international law did give a persuasive backing to the allegations of criminality. Also unlike KLWCT, the IWT mad no pretense of offering a defense to the charges.

 

Tribunals of ‘Conscience’ or of ‘Law’?

 

            It raises the question for populist jurisprudence as to whether ‘conscience’ or ‘law’ is the preferred and more influential grounding for this kind of non-governmental initiative. In neither case, does the statist-oriented mainstream media pause to give attention, even critical attention. In this regard, only populist democratic forces with a cosmopolitan vision will find such outcomes as Kuala Lumpur notable moves toward the establishment of what Derrida called the ‘democracy to come.’ Whether such forces will become numerous and vocal enough remains uncertain. One possible road to greater influence would be to make more imaginative uses of social networking potentials to inform, explain, educate, and persuade.

This recent session of the Kuala Lumpur War Crimes Tribunal offers a devastating critique of the persisting failures of international criminal law mechanisms of accountability to administer justice justly, that is, without the filters of impunity provided by existing hierarchies of hard power. So whatever the shortcomings of the KLWCT it definitely moved to close the criminal justice gap that now protects what might be called ‘geopolitical criminals’ from accountability for their crimes against peace and crimes against humanity, and this is a move, however haltingly, toward global justice and the global rule of law.

 

             

Language, Law, and Truth

21 Nov

 

“The language marches in step with the executioners.

  Therefore we must get a new language.” 

                       Tomas Tranströmer, Night Duty

 

            Marjorie Cohn, a respected progressive commentator on the use and abuse of international law during the past decade, notes with justifiable horror the willingness of Republican candidates for president to endorse torture as an acceptable instrument of counterterrorism. [Cohn, “US Presidential Elections: GOP Candidates Advocate Torture,” Nov. 19, 2011] Rick Perry, one leading Republican presidential contender who is now governor of Texas, put his support for torture in typically crude language: “This is war. That’s what happens in war.” The most direct endorsement was made by Herb Cain, a businessman who repeatedly demonstrates his scant knowledge of foreign policy issues, said with sprightly ignorance of waterboarding during a recent TV debate among the Republican candidates, “I don’t see it as torture. I see it as enhanced interrogation technique.” Not to be left behind in this rather alarming Republican horserace for the presidential nomination, Michelle Bachmann, attempted to give a pragmatic twist to the discussion by claiming (contrary to the evidence that torture often turns up information that is misleading and generally less useful than permissible forms of interrogation) that waterboarding is an effective means to gain information, and that as a patriot she would not hesitate to use such a technique to protect the country against its enemies. The lead candidate in opposition to Barrack Obama at this time in the November 2012 presidential election, Mitt Romney, also let it be slyly known that he shares the view that waterboarding is not torture: “Enhanced interrogation techniques have to be used. Not torture, but enhanced interrogation, yes.”

            Here we have direct examples of the dirty language games being played at great costs to the moral standing of the nation, its people, and its government. Torture is not torture if it is not called torture! Of course, in the background standing tall are George W. Bush, Dick Cheney, Donald Rumsfeld, John Yoo, and others who during the Bush presidency invented this trick designed to make torturers and their minders sleep well at night. For these unindicted war criminals, it was enough to give an unacceptably narrow definition of the legal crime of ‘torture,’ which allowed them to retain their innocence and at the same time brag about using waterboarding to save American lives, sometimes done over 100 times to a particular detainee. This Republican revival of a pro-torture argument is particularly discouraging because it seems to rest on an extremely distressing assessment of American public opinion as favorably impressed by the brutality and lawlessness of a continuing reliance on waterboarding and other forms of ‘enhance interrogation.’ If this assessment is correct it confirms the impression widespread in the world that not only has America lost its way, but has also mortgaged its soul!

            As Professor Cohn tells us, President Obama reaffirmed that waterboarding is torture, an opinion proclaimed ever since his presidential campaign in 2008, and bolstered by an insistence that since in office he has  unconditionally repudiated torture as conventionally understood. His language is instructive, but in its own way misleading: “Waterboarding is torture. Anybody that has actually read about it and understands the practice of waterboarding would say that it is torture—and that’s not something we do, period.” This renewed repudiation of waterboarding is welcome, as is the insistence on not distorting the language so as to allow those acting on behalf of the government to abuse physically and mentally persons held in detention, and even to do so with a relatively good conscience.

            But if waterboarding is torture, and Mr. Obama is true to his wider pledge to implement the rule of law during his presidency, why does he not allow investigations of the criminality on the part of his predecessors in office who acknowledged (‘confessed’) to the crime? In effect, a serious crime was repeatedly committed by the highest elected officials, damaging badly the reputation of the United States, and yet the political will to uphold the law is evidently not a feature of the Obama presidency, which early on asserted that it wanted to look forward not backward when it came to implementing law. To put it mildly, this is a peculiar ‘enforcement’ strategy that seems indistinguishable from non-enforcement! Imagine if a similar impunity was granted to common criminals for past murders and rapes! Imagine the Republican outrage! What is worse, as the comments of Republican candidates vividly reveals, this spirit of non-implementation keeps the virus of torture alive in the American body politic.

            In the good old days of the Cold War there also occurred a distressing reliance on torture and assassination, often entrusted to the CIA section on covert operations carried out overseas, well-documented and analyzed by Alfred McCoy in his book Question of Torture: CIA Interrogations, from the Cold War to the War on Terror (2006), but this behavior was kept secret, partly because it was known to be indecent and unlawful. Such a use of secrecy does not immunize the practice of torture from legal accountability had the political will and capability existed, which it did not, but it at least manifests a concern that such behavior if revealed would generate opposition and moral disgust. In the post-9/11 world, at least here in the United States, that concern and disgust while still present among urban liberals are much attenuated, which means the barriers to secret wrongdoing are likely to be virtually non-existent. And if one of these Republican torture advocates should be elected next November then it would seem likely to initiate an open season for a new round of torture undertaken beneath the feel good banner of ‘enhanced interrogation.’ At least, we can take some tiny comfort from the fact that even torture advocates still rely on this canopy of language to disguise the nature of their behavior. 

            Of course, it is easy for me to pontificate self-righteously when not faced with the dilemmas of governance. It was undoubtedly true that any attempt to impose standards of accountability on the Bush presidency would have led to an acrimonious national debate, or worse, and produced a deepening of the polarities already hamstringing the formation of public policy in the country. Yet for those who seek justice and truth in politics, such a law-oriented course of action would have been exhibited a genuine commitment to American values, and have gone a long way to demonstrate that the discontinuities between the Bush and Obama presidencies were more than halfway gestures.If a law-based democracy is ever to approximate reality, we the citizens must insist that the political risks of truth-telling be taken, that torture in our name, whether present, past, or future is totally unacceptable and will be punished no matter who turns out to be the culprit.                        

            In his speech accepting the Nobel Peace Prize in 2009 President Obama said strikingly: “Those who claim to respect international law cannot avert their eyes when those laws are flouted..The same principle applies to those who violate international law by brutalizing their own people.” But is not this precisely what Obama has been doing by averting his eyes from the crime of torture committed by his predecessors in office? This evasion of the solemn responsibility to implement international criminal law as it pertains to torture, even to investigate allegations of criminality, is accentuated by taking other backward steps suggesting ambivalence at best. Obama refused to authorize the formation a truth and reconciliation commission with a mandate to investigate past reliance on torture, which might have produced clarity, if not closure, on the issue.  As well, the Justice Department has shockingly intervened in judicial settings to prevent civil law suits by former Guantanamo detainees seeking damages from the abuse they endured on the flimsy, and morally unacceptable, grounds that as aliens they lacked clear constitutional rights, as aliens, not to be tortured. [For detailed indictment of the Obama approach to torture see Eric Lewis, “Torture’s Future,” NY Times, Nov. 21, 2011]

            In the same Nobel speech Obama explained his outlook on the relevance of law to warfare: “Where force is necessary, we have a moral and strategic interest in binding ourselves to certain rules of conduct. And even as we confront a vicious adversary that abides by no rules, I believe that the United States of America must remain a standard bearer in the conduct of war. That is what makes us different from those whom we fight. That is a source of our strength. That is why I prohibited torture. That is why I ordered the prison at Guantanamo Bay closed. And that is why I have reaffirmed America’s commitment to abide by the Geneva Conventions. We lose ourselves when we compromise the very ideals that we fight to defend. And we honor those ideals by upholding them not just when it is easy, but when it is hard.” Again, performance trumps rhetoric, and from this perspective Obama seems both hypocritical and cynical, not just in relation to torture, but more generally with respect to international law. 

            For the Obama presidency, the debate about the escalated use of attack drones to target suspected terrorists wherever they might be located in the world occupies a comparable space to that of torture during the Bush presidency. And what is revealing, is the similarity of manner by which the Obama people bring law to bear on this controversial use of force that has such broad implications for the future of warfare. More than their Bush counterparts, such luminaries as Harold Koh, Legal Advisor to the Secretary of State, and John Brennan, the top counterterrorist advisor to the president, emphasize the degree to which adherence to the rule of law in the conduct of American security policy is a priority that guides behavior because it reflects American values, and also works out better in the combat zones because it builds unity at home, strengthens cooperation abroad, and conveys the differences between ‘us’ (law-abiding on principled grounds) and ‘them’ (engaging in deliberate violence against civilians).

 

            But then this major premise of adherence to law is immediately contradicted by the minor premise: doing what is militarily desirable and possible to counter alleged terrorist threats associated with al Qaeda and the 9/11 experience, and this means targeted assassinations in foreign countries far from the hot battlefield, understating of civilian casualties, ignoring the frightening wider effects of drone attacks on the overall sense of societal security in a target zone, broadly defining who constitutes a threat, and a refusal to lift the veil of secrecy from drone operations to determine whether intelligence was reliable as to target and supposed threat. It is lethal behavior by the United States carried on in foreign countries, with ‘consent’ publicly denied or absent, generally undertaken by a CIA civilian operative sitting in an air conditioned office, converting ‘war’ into a risk-free process that for the drone-minder resembles a video game, and since there is no public accountability, there is also no burden of responsibility for negligence or even malice. Does not this represent an extreme stretching of the international law with respect to the right of self-defense? It also is a blatant denial of  ‘the right to life,’ an imposition of extra-judicial capital punishment, and as such, an affront to legal standards associated with international human rights.  As well it entails an utter lack of respect for the sovereign rights of other states, and in its totality, a contorted ‘legality’ put forth by government legal experts on behalf of drone warfare in a manner unnervingly similar to what the Bush legal operatives sought to do with regard to torture.

            It may be time to acknowledge that governmental lawlessness in foreign policy has become a bipartisan reality for the United States Government, and that the face in the White House or the political party in control, while not yet irrelevant, is a matter of secondary interest, at least to those who are drone targets or torture victims. 

            It may be past time to say that such a stretching of the language of law is an insult to our intelligence and a subversion of our morality as a people and nation. When ‘law’ becomes a synonym for ‘crime’ we know that power corrupts all the way to the top of the governmental pyramid!

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