A pilot's heads up display in a ground control station shows a truck from the view of a camera on an MQ-9 Reaper during a training mission. (photo: Ethan Miller/Getty Images)
After
8 Years of Expanding Presidential War Powers, Obama Insists They Are Limited
By Alex Emmons, The
Intercept
06 December 16
Anticipating
that Donald Trump might try to fulfill his promises to “bomb the @@@@” out of terror groups and do
a “hell of a lot worse than waterboarding,” President
Obama released a report on Monday summarizing his administration’s views of the
legal barriers and policies limiting the president’s military power.
The
61-page report calls for
trying terrorism suspects in civilian court and explains at length why no
future president could legally torture detainees. It lays out the
administration’s self-imposed limits on military operations — and declares that
a 2001 resolution Congress passed in the wake of 9/11 is not a blank check to
go to kill alleged terrorists wherever they are.
“It
clearly reads like an explanation, a textbook that’s left for the next person,”
said Naureen Shah, director of the Security With Human Rights Program at
Amnesty International. “Here are all the things you cannot do.”
But in
trying to defend Obama’s legacy, the report paints a picture of an
administration far more restrained than it was in practice.
The
report comes just weeks before Trump will inherit bombing campaigns in
seven countries, a legally unaccountable drone program, and an open prison at
Guantanamo Bay.
The
new report is the latest in a series of public steps Obama has recently taken
to give the appearance of reining his war powers. Over the summer, for
instance, the White House released its internal guidelines for
drone strikes outside of war zones and issued a new executive order calling
for more transparency on casualties going forward.
But
both documents could be revoked by a stroke of the next president’s pen – a
fact that CIA Director John Brennan admitted at an event
in July.
Obama dramatically escalated the
use of drones to kill alleged terrorists far away from recognized warzones. In
an October interview with New
York Magazine, Obama noted that his executive reforms to the drone program were
motivated by concern he would hand off a killing program with no oversight or
controls. “You end up with a president who can carry on perpetual wars all over
the world, and a lot of them covert, without any accountability or democratic
debate,” said Obama.
But
more quietly, Obama has continued to expand the power of the president to wage
covert war. The Washington Post reported last month
that Obama was elevating Joint Special Operations Command – the government’s
high-level team for global killing missions – into a “ new multiagency
intelligence and action force,” with expanded power to launch attacks on
terrorist groups around the world.
As for
its discussion of the drone program, Monday’s report repackages many of the Obama
administration’s favorite propaganda lines for the next president: The report
refers to assassinations with
the hazy phrase “targeted lethal force”; It adamantly maintains that the U.S.
has a preference for capturing terrorists over killing them, while it has routinely demonstrated the
opposite; and the report celebrates the clandestine killing program for its
“transparency,” despite the fact that the president did not publicly discuss the program
until 2013. In addition, most of the documents made public from the program
were released due to leaks, Congressional pressure,
and lawsuits.
The
report also adopts the administration’s practice of whitewashing civilian death tolls,
arguing that the administration’s record on civilian casualties exceeds “the
safeguards that apply as a matter of law in the course of an armed conflict.”
Earlier in the summer, the administration released a ludicrously conservative
estimate of the number of civilians killed by U.S. drones in Pakistan, Yemen,
and Somalia. The administration claimed that they had killed between 64 and 116
civilians, while independent estimates say
the number could be as high as nine times that.
In
outlining standards “for the use of lethal force,” the report advocates a “near
certainty” standard that the target is present, and that innocent people not be
injured or killed. In doing so, the Obama administration is advocating a policy
that they have appeared to repeatedly violate – including when U.S. drones
struck a Yemeni wedding party in
December 2013, and in January 2015, when the CIA killed two aid workers held
hostage in Pakistan.
The
report outlines additional legal safeguards the Obama administration claims it
applied before it killed American citizen Anwar al-Awlaki – the only American
citizen who it says was hit by a “specific, targeted strike.” The report does
not mention the other seven U.S. citizens who
were killed by drones.
The
report boasts that American citizens have due process rights under the Fourth
and Fifth Amendment no matter where they are, and cautions the Trump
administration to take Constitutional rights into consideration when “assessing
whether it is lawful to target the individual.”
But
the Obama administration has consistently fought to undermine those Constitutional
protections. For instance, it has argued that citizens
cannot go to court to challenge their place on a government kill list, and
courts have no role to play in
oversight after a strike has taken place.
A
large portion of the report is devoted to justifying how far the war on terror
has expanded, and how a 2001 resolution passed
in the wake of the 9/11 attacks could be stretched to cover wars 15 years later
in Afghanistan, Iraq, Syria, and Libya, along with drone bombings and other
operations in Yemen and Somalia. The report does not mention Pakistan, where
the U.S. has also waged a secret drone war since 2004.
Presidents
Bush and Obama have cited the resolution to
justify military action from Libya to the Philippines, and critics have argued that
it provides a president with blank check authority to go after insurgent groups
with loose affiliations to the September 11 attacks.
But
the report argues that the resolution is not an authorization to wage unlimited
war against insurgent groups. The report says that in order to be considered an
“associated force” of al Qaeda, an insurgent group must not only be “an
organized, armed group that has entered the fight alongside al-Qa’ida or the
Taliban,” it must also be “a co-belligerent… in hostilities against the United
States or its coalition partners.”
But
the recent move to designate the Somali insurgent group al-Shabaab as an “associated force” of
al Qaeda illustrates how slippery the standard is.
The
report offers the administration’s first on-the-record explanation of why it
added al-Shabaab to its list, despite the fact that Al-Shabaab has never
demonstrated a capability to attack
the U.S. homeland. According to the report, they were nonetheless
designated because they “pledged loyalty to al Qaeda,” and have conducted
attacks against “U.S. persons and interests in East Africa.”
But
the fact that the administration’s decision was unilateral and unaccountable –
and made without any public demonstration of the evidence to support it –
serves as a tutorial for future abuse.
Taking
a firmer note, the report argues forcefully that torture is illegal and cites
U.S. laws, treaties, executive orders, and regulations that make it so.
But it
does not offer an explanation for why the Obama administration failed to
prosecute CIA torture in the Bush administration – a failure that rights groups frequently blame for the
continued public support for
torture.
Human
rights advocates praised the report for its opposition to torture and
lawlessness in war, but argued that its framework would allow some violations
to slip through the cracks.
“Another
way to put it is that it is trying to make sure the floodgates are closed while
leaving some doors unlocked,” said Shah. “And that’s what’s frightening.”
The
White House issued a companion memo instructing the
next administration to build on the framework of the report, and revise and
reissue it for future years. But that memo, like many of the order and
directives in the report, could simply be discarded on a whim by the Trump
administration.
C 2015 Reader Supported News
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to the Baltimore Nonviolence Center, 325 E. 25th St., Baltimore, MD
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"The master class
has always declared the wars; the subject class has always fought the battles.
The master class has had all to gain and nothing to lose, while the subject
class has had nothing to gain and everything to lose--especially their
lives." Eugene Victor Debs
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