Friday, March 26, 2010

The National Security State & the Presidency

For your consideration, three recent news stories and related readings:

1. “Obama Backtracking on Detainee Rights, Critics Say:”

The newest option for detaining terrorism suspects—an Afghan prison that serves the same purpose as the lockup in Guantanamo Bay, Cuba—suggests that President Obama's policies are becoming more like those of his predecessor, George W. Bush, in the view of human rights groups and legal experts.

Obama began his presidency vowing to close Guantanamo, end CIA detention practices and transform the post-9/11 system created by Bush. But the administration gradually has backtracked, and is now revisiting some of the practices in use under Bush: military tribunals, detention without trials and overseas prisons.

Human rights activists have objected to what they see as a trend in the administration toward favoring long-term detention of terrorism suspects and military commission proceedings rather than public court trials. In the latest possible shift, administration officials said last week that they may use a prison at the Bagram air base in Afghanistan for long-term detainees captured elsewhere. [….]

2. From IntLawGrrls: Harold Koh on Targeted Killing:

As detailed via quotes in the post below, the Legal Adviser to the U.S. Department of State, Harold Hongju Koh, yesterday outlined a multi-pronged defense of the Obama Administration’s use of drones for targeted killings of presumed al Qaeda operatives. Among the statements made during Koh’s keynote speech to the American Society of International Law was this:

[S]ome have argued that the use of lethal force against specific individuals fails to provide adequate process and thus constitutes unlawful extrajudicial killing. But a state that is engaged in armed conflict or in legitimate self-defense is not required to provide targets with legal process before the state may use lethal force.

For some prominent views analyzing the bulk of pertinent legal questions here, please see the following, several of which lack the confidence and certainty which marks, in turn, Koh’s reasoning and conclusion:

Akande, Dapo. “Clearing the Fog of War? The ICRC’s Interpretive Guidance on Direct Participation in Hostilities,” EJIL Analysis, EJIL: Talk!/Blog of the European Journal of International Law:

Kaplan, Eben. “Targeted Killings,” Backgrounder (March 2, 2006) Council on Foreign Relations:

Melzer, Nils. Targeted Killing in International Law. New York: Oxford University Press, 2008.

O'Connell, Mary Ellen. “Unlawful Killing with Combat Drones: A Case Study of Pakistan,” 2004-2009 (November 1, 2009). Shooting to Kill: The Law Governing Lethal Force in Context, Simon Bronitt, ed., Forthcoming. Notre Dame Legal Studies Paper No. 09-43. SSRN:

“On the Legal Aspects of ‘Targeted Killings:’ Review of the Judgment of the Israeli Supreme Cout,” Policy Brief, May 2007, Program on Humanitarian Policy and Conflict Research, Harvard University:

Patel, Mayur. “Israel’s Targeted Killings of Hamas Leaders,” (May 2004), The American Society of International Law/ASIL Insights:

Paust, Jordan J. “Self-Defense Targetings of Non-State Actors and Permissibility of U.S. Use of Drones in Pakistan” (December 8, 2009). Journal of Transnational Law & Policy, Vol. 19, 2010, University of Houston Law Center No. 2009-A-36. SSRN:

Paust, Jordan J. (et al.), “The United States’ Use of Drones in Pakistan,” (Sept. 29, 2009) EJIL Analysis, EJIL: Talk!/Blog of the European Journal of International Law:

3. Glenn Greenwald at Salon: “When Presidential Sermons Collide”:

President Obama gave an interview earlier this week to an Indonesian television station in lieu of the scheduled trip to that country which was canceled due to the health care vote. In 2008, Indonesia empowered a national commission to investigate human rights abuses committed by its own government under the U.S.-backed Suharto regime “in an attempt to finally bring the perpetrators to justice,” and Obama was asked in this interview: “Is your administration satisfied with the resolution of the past human rights abuses in Indonesia?” He replied:

"We have to acknowledge that those past human rights abuses existed. We can’t go forward without looking backwards . . . . "

When asked last year about whether the United States should use similar tribunals to investigate its own human rights abuses, as well his view of other countries’ efforts (such as Spain) to investigate those abuses, Obama said:

"I’m a strong believer that it’s important to look forward and not backwards, and to remind ourselves that we do have very real security threats out there."

That “Look-Forward/Not-Backward” formulation is one which Obama and his top aides have frequently repeated to argue against any investigations in the U.S. Why, as Obama sermonized, must Indonesians first look backward before being able to move forward, whereas exactly the opposite is true of Americans? If a leader is going to demand that other countries adhere to the very “principles” which he insists on violating himself, it’s probably best not to use antithetical clichés when issuing decrees, for the sake of appearances if nothing else.

The New Yorker’s Jane Mayer—in the last paragraph of her new article documenting the multiple lies told by former Bush speechwriter and current Washington Post columnist Marc Thiessen in his pro-torture book—offered the best summary yet as to why Obama’s “Look Forward/Not Backward” mentality is so destructive:

The publication of “Courting Disaster” suggests that Obama’s avowed determination “to look forward, not back” has laid the recent past open to partisan reinterpretation. By holding no one accountable for past abuse, and by convening no commission on what did and didn’t protect the country, President Obama has left the telling of this dark chapter in American history to those who most want to whitewash it.

Nothing enables the glorification of crimes, and nothing ensures their future re-occurrence, more than shielding the criminals from all accountability. It’s nice that Barack Obama is willing to dispense that lecture to other countries, but it’s not so nice that he does exactly the opposite in his own.

Do the above count as evidence for the strength of Garry Wills’s argument that follows?

The Entangled Giant
The York Review of Books, Vol. 56, No. 15 (October 8, 2009)

George W. Bush left the White House unpopular and disgraced. His successor promised change, and it was clear where change was needed. Illegal acts should cease—torture and indefinite detention, denial of habeas corpus and legal representation, unilateral canceling of treaties, defiance of Congress and the Constitution, nullification of laws by signing statements. Powers attributed to the president by the theory of the unitary executive should not be exercised. Judges who are willing to give the president any power he asks for should not be confirmed.

But the momentum of accumulating powers in the executive is not easily reversed, checked, or even slowed. It was not created by the Bush administration. The whole history of America since World War II caused an inertial transfer of power toward the executive branch. The monopoly on use of nuclear weaponry, the cult of the commander in chief, the worldwide network of military bases to maintain nuclear alert and supremacy, the secret intelligence agencies, the entire national security state, the classification and clearance systems, the expansion of state secrets, the withholding of evidence and information, the permanent emergency that has melded World War II with the cold war and the cold war with the “war on terror”—all these make a vast and intricate structure that may not yield to effort at dismantling it. Sixty-eight straight years of war emergency powers (1941–2009) have made the abnormal normal, and constitutional diminishment the settled order.

The truth of this was borne out in the early days of Barack Obama’s presidency. At his confirmation hearing to be head of the CIA, Leon Panetta said that “extraordinary rendition”—the practice of sending prisoners to foreign countries—was a tool he meant to retain. Obama’s nominee for solicitor general, Elena Kagan, told Congress that she agreed with John Yoo’s claim that a terrorist captured anywhere should be subject to “battlefield law.” On the first opportunity to abort trial proceedings by invoking “state secrets”—the policy based on the faulty Reynolds case—Obama’s attorney general, Eric Holder, did so.
Obama refused to release photographs of “enhanced interrogation.” The CIA had earlier (illegally) destroyed ninety-two videotapes of such interrogations—and Obama refused to release documents describing the tapes.

The President said that past official crimes would not be investigated—certainly not for prosecution, and not even by an impartial “truth commission” just trying to establish a record. He said, on the contrary, that detainees might be tried in “military tribunals.” When the British government, trying a terrorist suspect, decided to use some American documents shared with the British government, Obama's attorney general pressured it not to do so. Most important, perhaps, was the new president's desire to end the nation-building in Iraq while substituting a long-term nation-building effort in Afghanistan, run by a government corrupted by drug trafficking and not susceptible to our remolding.

Now a new president quickly becomes aware of the vast empire that is largely invisible to the citizenry. The United States maintains an estimated one thousand military bases in other countries. I say "estimated" because the exact number, location, and size of the bases are either partly or entirely cloaked in secrecy, among other things to protect nuclear installations. The secrecy involved is such that during the Cuban Missile Crisis, President Kennedy did not even know, at first, that we still had nuclear missiles stationed in Turkey.

An example of this imperial system is the Indian Ocean island of Diego Garcia. In the 1960s, to secure a military outpost without fear of any interference from indigenous peoples, the two thousand Chagossian inhabitants were forcibly expelled, deprived of their native land, and sent a thousand miles away. (It is the same ploy we had used in removing native peoples from the Bikini and Enewetak atolls and Lib Island, so that we could conduct our sixty-eight atomic and hydrogen bomb tests there.) Though technically Diego Garcia is leased from the British, it is entirely run by the United States. It was the United States that expelled the Chagossians and confiscated their property. Diego Garcia has become a vast armory, as well as a storage and staging area and harbor and launch site, from which supplies and air strikes are fanned out over the Middle East, especially to the Persian Gulf and the Afghanistan and Iraq wars. No journalists are allowed to visit it. It was funded on a vast scale by various deceptions of Congress. Even the leasing terms with Great Britain were kept secret, to avoid congressional oversight.

That is just one of the hundreds of holdings in the empire created by the National Security State. A president is greatly pressured to keep all the empire's secrets. He feels he must avoid embarrassing the hordes of agents, military personnel, and diplomatic instruments whose loyalty he must command. Keeping up morale in this vast, shady enterprise is something impressed on him by all manner of commitments. He becomes the prisoner of his own power. As President Truman could not not use the bomb, a modern president cannot not use the huge powers at his disposal. It has all been given him as the legacy of Bomb Power, the thing that makes him not only Commander in Chief but Leader of the Free World. He is a self-entangling giant.

And see Wills’s recent book, Bomb Power: The Modern Presidency and the National Security State (2010)

Update: With regard to No. 2 above, a recent post by Kevin Jon Heller at Opinio Juris brought my attention to Marko Milanovic's post at EJIL Talk!: “Drones and Targeted Killings: Can Self-Defense Preclude Their Wrongfulness?

It seems this is one of those very rare occasions I'm in agreement with Julian Ku at Opinio Juris: “In other words, the basic legal framework of the Bush Administration's ‘war on terrorism’ has been adopted and maintained by the Obama Administration.”

Cross-posted at ReligiousLeftLaw.Com


Post a Comment

<< Home