Friday, March 22, 2013

Obama's Nixonian Precedent

Excerpt: "On Page 4 of the unclassified 16-page "white paper," Justice Department lawyers tried to refute the argument that international law does not support extending armed conflict outside a battlefield... [T]he Obama administration's lawyers have cited a statement that was patently false."

Obama's Nixonian Precedent


The New York Times

March 22, 2013

Atlanta - ON March 17, 1969, President Richard M. Nixon began a secret bombing campaign in Cambodia, sending B-52 bombers over the border from South Vietnam. This episode, largely buried in history, resurfaced recently in an unexpected place: the Obama administration's "white paper" justifying targeted killings of Americans suspected of involvement in terrorism.

President Obama is reportedly considering moving control of the drone program from the Central Intelligence Agency to the Defense Department, as questions about the program's legality continue to be asked. But this shift would do nothing to confer legitimacy to the drone strikes. The legitimacy problem comes from the secrecy itself - not which entity secretly does the killing.

Secrecy has been used to hide presidential overreach - as the Cambodia example shows.

On Page 4 of the unclassified 16-page "white paper," Justice Department lawyers tried to refute the argument that international law does not support extending armed conflict outside a battlefield. They cited as historical authority a speech given May 28, 1970, by John R. Stevenson, then the top lawyer for the State Department, following the United States' invasion of Cambodia.

Since 1965, "the territory of Cambodia has been used by North Vietnam as a base of military operations," he told the New York City Bar Association. "It long ago reached a level that would have justified us in taking appropriate measures of self-defense on the territory of Cambodia. However, except for scattered instances of returning fire across the border, we refrained until April from taking such action in Cambodia."

In fact, Nixon had begun his secret bombing of Cambodia more than a year earlier. (It is not clear whether Mr. Stevenson knew this.) So the Obama administration's lawyers have cited a statement that was patently false.

To be sure, the administration may have additional arguments in support of its use of drones in Yemen, Pakistan, Somalia and other countries. To secure the confirmation of John O. Brennan as the C.I.A. director, it recently showed members of the Congressional intelligence committees some of the highly classified legal memos that were the basis for the white paper. But Mr. Obama has asked us to trust him, and Cambodia offers us no reason to do so.

A more limited, secret bombing campaign in Cambodia had begun in 1965 during Lyndon B. Johnson's administration, but Nixon escalated it to carpet-bombing. The aim was to disrupt Communist bases and supply routes. The New York Times reported on it two months after it began, but the White House denied it, and the trail went cold. When the bombing began, Nixon even kept it a secret from his secretary of state, William P. Rogers. Worried about leaks, Nixon told Henry A. Kissinger, his national security adviser: "State is to be notified only after the point of no return."

The bombing campaign, called Operation Breakfast, was carried out through out-and-out deception. Sixty B-52 bombers were prepared for a bombing run over targets in Vietnam. After the usual pre-mission briefing, pilots and navigators of 48 planes were then pulled aside and informed that they would receive new coordinates from a radar installation in Vietnam. Their planes would be diverted to Cambodia.

But the destination was kept secret even from some crew members. The historian Marilyn B. Young found an "elaborate system of double reporting," such that "even the secret records of B-52 bombing targets were falsified so that nowhere was it recorded that the raids had ever taken place."

So the sort of "scattered instances of returning fire across the border" cited by Mr. Stevenson were actually regular bombing runs by B-52's. Over 14 months, nearly 4,000 flights dropped 103,921 tons of explosives, followed by more extensive bombing farther into Cambodia.

Mr. Kissinger later claimed that he had been assured that there were no civilians in the area, which was not the case. Meanwhile, the North Vietnamese response was to move farther into Cambodia. The bombers followed.

Eventually, select members of Congress were notified, and an effort by Representative John Conyers Jr., a Michigan Democrat, to add the bombing to the Watergate articles of impeachment failed. Critics have argued that the ultimate result of Nixon's strategy was to destabilize the government of Prince Norodom Sihanouk and enable the Khmer Rouge's ascent to power in 1975, and the subsequent genocide.

The Cambodia bombing, far from providing a valuable precedent for today's counterterrorism campaign, illustrates the trouble with secrecy: It doesn't work. If Nixon had gone to Congress or announced the plan publicly, the historian Jeffrey P. Kimball has written, "there would have been an uproar." But disclosure was ultimately forced upon him when he decided to send ground troops into Cambodia. A new wave of giant antiwar protests erupted, and Nixon's ability to take further aggressive action became infeasible.

Barack Obama is, of course, no Richard Nixon - we expect better of him. And we deserve the transparency he promised us, not a new version of secret warfare.

Mary L. Dudziak, a professor of law and director of the Project on War and Security in Law, Culture and Society at Emory University, is the author of "War Time: An Idea, Its History, Its Consequences."

© 2012 The New York Times Company

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