Wednesday, November 06, 2013

Bombs May Be More Dangerous

Barack Obama and Bill Clinton may have had more in common than a burning desire to see Democrat Terry McAuliffe elected governor of Virginia (as he was Tuesday) and no interest in Democrat Barbara Buono elected governor (as expected, she lost) of New Jersey.  In September, 1998 Slate's Timothy Noah wrote of President Clinton's relationship with Monica Lewinsky

Years from now, when we look back on Bill Clinton's presidency, its defining moment may well be Clinton's rationalization to the grand jury about why he wasn't lying when he said to his top aides that with respect to Monica Lewinsky, "there's nothing going on between us." How can this be? Here's what Clinton told the grand jury (according to footnote 1,128 in Starr's report):

"It depends on what the meaning of the word 'is' is. If the--if he--if 'is' means is and never has been, that is not--that is one thing. If it means there is none, that was a completely true statement....Now, if someone had asked me on that day, are you having any kind of sexual relations with Ms. Lewinsky, that is, asked me a question in the present tense, I would have said no. And it would have been completely true."

The distinction between "is" and "was" was seized on by the commentariat when Clinton told Jim Lehrer of PBS right after the Lewinsky story broke, "There is no improper relationship." Chatterbox confesses that at the time he thought all these beltway domes were hyperanalyzing, and in need of a little fresh air. But it turns out they were right: Bill Clinton really is a guy who's willing to think carefully about "what the meaning of the word 'is' is." This is way beyond slick. Perhaps we should start calling him, "Existential Willie."

The prescient Noah suggested Clinton's rationalization might become "the defining moment of his presidency," though years of uninterrupted economic growth and a balanced budget probably have become the defining themes.  Nevertheless, "it depends upon what the meaning of 'is' is" became an enduring punchline.

And then there is Barack Obama's rationalization, less funny but far more damaging.  The Guardian's Jeffrey Bachman analyzes

whether President Obama's targeted killing program, implemented through the use of drone strikes, complies with both international human rights law and international humanitarian law. Outside of a defined conflict zone, international human rights law is the applicable law. This is important because human rights law demands significantly more stringent rules for the use of lethal force than does humanitarian law.

If the United States is only involved in an armed conflict in Afghanistan, international human rights law would be the regime that regulates the use of lethal force in Pakistan and Yemen. Therefore, as noted by Amnesty International, the use of lethal force outside of Afghanistan is legal when it can be demonstrated that:

[It was] only used when strictly unavoidable to protect life, no less harmful means such as capture or non-lethal incapacitation was possible, and the use of force was proportionate in the prevailing circumstances.

Amnesty International concluded that it is highly likely that drone strikes in Pakistan fail to "satisfy the law enforcement standards that govern intentional use of lethal force outside armed conflict", and therefore:

[T]heir deliberate killings by drones … very likely violate the prohibition of arbitrary deprivation of life and may constitute extrajudicial executions.

If we accept the argument made by the Obama administration and the Bush administration before it – that the United States is involved in an armed conflict with al-Qaida and associated forces wherever they are engaged – international humanitarian law is the lex specialis in Pakistan and Yemen. Yet, even with less rigorous limitations on the use of lethal force under international humanitarian law, there is mounting evidence that the Obama administration's use of drones constitute violations of international law in the form of war crimes.

Human Rights Watch examined six strikes in Yemen. According to its report:

Two of these attacks were in clear violation of international humanitarian law – the laws of war – because they struck only civilians or used indiscriminate weapons. The other four cases may have violated the laws of war because the individual attacked was not a lawful military target or the attack caused disproportionate civilian harm.

Going beyond the examination of individual strikes, President Obama has utilized tactics that inherently violate the laws of war. These include the use of so-called "signature strikes" and "double taps". According to Amnesty International:

Under international humanitarian law, US drone operators must at all times abide by the principle of distinction; namely distinguish between civilians and combatants … All feasible precautions must be taken in determining whether a person is a civilian … In case of doubt, the person must be presumed to be protected against direct attack.

Signature strikes target individuals for death based not on the confirmed identity or activities of the targets, but rather "behavioral characteristics" identified as those typical of militants. This is a clear violation of the principle of distinction. Further, Amnesty International questions President Obama's assertion that drone strikes are only launched when there is "near certainty" that civilians will not be killed in the strike – a likely reference to President Obama's disputed method of counting "all military-age males" in the vicinity of an alleged target as militants.

Amnesty International argues that the president's precautionary measures "are only relevant if the US applies the status of 'civilian' to unidentified individuals, rather than presuming they are combatants whom they deem directly targetable. Otherwise, these killings could constitute war crimes or extrajudicial executions."

So for President Obama, it depends upon what the meaning of "defined conflict zone" is. But even if his definition is accurate, it depends upon what the meaning of "civilian" is- and given "civilian" is contrasted with "combatant," it's clear that the Administration is making it up. Clinton's con, by contrast, had the advantage of being true: he wasn't at the time having an affair.  Nor were hundreds of civilians- uh, er, combatants- killed while the President misbehaved.

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