Archive | War on Terror

Obama and the Universal Golden Rule

Over at National Review Online, Cliff May, who is right 99.9% of the time, makes a rare error. He questions President Obama’s Nobel Prize speech claim that “the one rule that lies at the heart of every major religion is that we do unto others as we would have them do unto us.” May points to the Sermon on the Mount and to the teachings of the first-century Rabbi Hillel for evidence of the Golden Rule in Christian and Jewish thought. (An even better Jewish cite would have been Leviticus 19:18–“Thou shalt love they neighbor as thyself”–since Leviticus is Jewish scripture, and Rabbi Hillel’s kind and wise sayings are not.) May then writes: “I don’t think one finds either sentiment in the Koran and the Hadith. Infidels do not enjoy the same status as the Faithful – not in Allah’s eyes and not in the eyes of Allah’s servants. Not unless and until they convert.”
Let’s look at the record. One can find innumerable historical examples of Christians, Jews, Muslims, and others viciously mistreating people who were of different religions. In many cases, the mistreaters could offer some plausible citation to their own religion’s scripture or other teachings. However, if question is: “Does every major world religion contain the Golden Rule?” the answer is “yes.” To wit:
Islam:  “Not one of you (truly) believes until he wishes for his brother what he wishes for himself.” An-Nawawī’s Forty Hadith, transl., Ezzeddin Ibrahim & Denys Johnson-Davies (Damascus, Syria: The Holy Koran Publishing House, 3d ed. 1977), Hadith 13, p. 56 (attributed to Mohammed; parenthetical in original).
Mencius said, “Try your best to treat others as you would wish to be treated yourself, and you will find that this is the shortest way to benevolence.”  Lao Tzu said, “Regard your neighbor’s gain as […]
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Three cheers for President Obama!

For his very good speech accepting the Nobel Prize. Our President affirmed the principle of “just war,” and the righteousness of sometimes using unilateral force against tyranny, for “There will be times when nations–acting individually or in concert — will find the use of force not only necessary but morally justified.” In words reminiscent of John F. Kennedy or Ronald Reagan, President Obama continued:

I face the world as it is, and cannot stand idle in the face of threats to the American people.  For make no mistake:  Evil does exist in the world.  A non-violent movement could not have halted Hitler’s armies.  Negotiations cannot convince al Qaeda’s leaders to lay down their arms.  To say that force may sometimes be necessary is not a call to cynicism — it is a recognition of history; the imperfections of man and the limits of reason.

I raise this point, I begin with this point because in many countries there is a deep ambivalence about military action today, no matter what the cause.  And at times, this is joined by a reflexive suspicion of America, the world’s sole military superpower.

But the world must remember that it was not simply international institutions — not just treaties and declarations — that brought stability to a post-World War II world.  Whatever mistakes we have made, the plain fact is this:  The United States of America has helped underwrite global security for more than six decades with the blood of our citizens and the strength of our arms.  The service and sacrifice of our men and women in uniform has promoted peace and prosperity from Germany to Korea, and enabled democracy to take hold in places like the Balkans.  We have borne this burden not because we seek to impose our will.  We have done

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Targeted Killing, Safe Havens, and the President’s West Point Speech

Several times in his West Point speech on Afghanistan and Pakistan, President Obama declared that the US would not permit Al Qaeda or “violent extremists” the use of safe havens.  He specifically noted Pakistan, Yemen, and Somalia.  The President unsurprisingly never overtly mentioned Predator or drone missile strikes, or the CIA as the operational agents in many instances of these far-from-covert actions.  But there is little doubt that both in the speech and in actual doctrine, targeted killing through drone strikes has been endorsed and indeed extended.

It was a tactic initiated by the Bush administration, but it was embraced and championed by the Obama administration, expanded and made a centerpiece of operations by it, as news stories before and after this speech in the NYT and Washington Post have repeatedly reported.  But an important question remains as to whether the administration is preserving through use and ‘opinio juris’ the legal authority and doctrines that support these sensible tactics.

Not the only tool of US will, of course – the President went to great lengths to discuss diplomacy, values, and many “soft power” options.  Targeted killing is a means, and a limited one; moreover it is not a strategic end in itself.  And it is also quite true that although speeches of this kind are often constructed so as to make oblique references to be understood as such, it is also a mistake to interpret a large policy pronouncement by reference to particular phrases and oblique references in isolation from the larger whole.  But reading the whole speech, there is little doubt that targeted killing is included among the vital tools for the projection of US power – not just in Afghanistan, not just in Pakistan (and the speech several times referred to Afghanistan and Pakistan together, for obvious […]

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Attack of the Drones

The NYT reports that the Administration will increase the use of unmanned drones for targeted killings in Pakistan.

The White House has authorized an expansion of the C.I.A.’s drone program in Pakistan’s lawless tribal areas, officials said this week, to parallel the president’s decision, announced Tuesday, to send 30,000 more troops to Afghanistan. American officials are talking with Pakistan about the possibility of striking in Baluchistan for the first time — a controversial move since it is outside the tribal areas — because that is where Afghan Taliban leaders are believed to hide.

By increasing covert pressure on Al Qaeda and its allies in Pakistan, while ground forces push back the Taliban’s advances in Afghanistan, American officials hope to eliminate any haven for militants in the region.

One of Washington’s worst-kept secrets, the drone program is quietly hailed by counterterrorism officials as a resounding success, eliminating key terrorists and throwing their operations into disarray. But despite close cooperation from Pakistani intelligence, the program has generated public anger in Pakistan, and some counterinsurgency experts wonder whether it does more harm than good. . . .

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DoJ’s Defense of Yoo

Dave Hoffman notes that the Justice Department has filed an interesting amicus brief in Padilla v. Yoo arguing against the availabiltiy of a Bivens action in the national security context.  Here’s a brief excerpt:

The threshold question presented by this case is whether a court should recognize a federal common-law damage action addressing the decisionmaking process within the Executive Branch about whether the military should detain and how it should treat those deemed to be enemies during an armed conflict. As we explain below, this context, which directly implicates war powers and matters of national security, presents compelling “special factors” that strongly counsel against judicial creation of such a money-damage remedy, in the absence of congressional action. The Supreme Court and the courts of appeals have consistently refused to extend Bivens remedies to new contexts. Where there are special considerations or sensitivities raised by a particular context, the courts recognize that it is appropriate for the courts to defer to Congress and wait for it to enact a private damage action if it so chooses. That course is clearly appropriate here.

For what it’s worth, I think this argument would likely appeal to a majority of justices on the current Supreme Court — should the case get that far.  This is not a court eager to expand the scope of existing judicial remedies without an express legislative mandate.

For some of our prior posts on Padilla v. Yoo, see here, here, and here. […]

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Yoo v. Goldsmith on the KSM Trial

Last week, former OLC deputy John Yoo argued in the WSJ that the decision to try Khalid Sheikh Mohammed in New York was a major mistake.

Trying KSM in civilian court will be an intelligence bonanza for al Qaeda and the hostile nations that will view the U.S. intelligence methods and sources that such a trial will reveal. The proceedings will tie up judges for years on issues best left to the president and Congress.

Whether a jury ultimately convicts KSM and his fellows, or sentences them to death, is beside the point. The treatment of the 9/11 attacks as a criminal matter rather than as an act of war will cripple American efforts to fight terrorism. It is in effect a declaration that this nation is no longer at war.

On Friday, two other former Bush Administration Justice Department officials, former Deputy Attorney General James Comey and former OLC head Jack Goldsmith, took a decidedly different tack in the Washington Post.

Reasonable minds can disagree about Attorney General Eric Holder’s decision to prosecute Khalid Sheik Mohammed and four other alleged Sept. 11 perpetrators in a Manhattan federal court. But some prominent criticisms are exaggerated, and others place undue faith in military commissions as an alternative to civilian trials. . . .

Many of Holder’s critics appear to have forgotten that the Bush administration used civilian courts to put away dozens of terrorists, including “shoe bomber” Richard Reid; al-Qaeda agent Jose Padilla; “American Taliban” John Walker Lindh; the Lackawanna Six; and Zacarias Moussaoui, who was prosecuted for the same conspiracy for which Mohammed is likely to be charged. Many of these terrorists are locked in a supermax prison in Colorado, never to be seen again.

In terrorist trials over the past 15 years, federal prosecutors and judges have gained

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President Obama is not a jihadi

A local controversy here in Colorado involves an auto dealer who used the billboard on his property to ask the question “PRESIDENT or JIHAD?” The rest of the billboard attempts (not very successfully in my view) to connect this question to the issue of Obama’s birth certificate. Last night I was briefly interviewed about the billboard by Channel 7 News, the local affiliate of ABC. My view is that there is not a scintilla of evidence to suggest that our President is a jihadi. Accordingly, I exercised my First Amendment rights to criticize someone else’s foolish use of his own First Amendment rights. As is the norm, not every portion of a taped interview gets used on the air. One portion that didn’t make the cut was my equating the allegation of “jihad?” with the earlier claims of some mean-spirited extremists that President Bush was as evil as Hitler. […]

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Retrospective on the Iranian Hostage Crisis

Last week, I was interviewed by Radio Free Europe’s Russian-language station about the 30th anniversary of the Iranian seizure of American diplomatic hostages in Tehran. The transcript, in Russian, is here. For the fraction of VC readers who do not read Russian (a fraction that is smaller than almost any other U.S. law/policy weblog), here’s a summary of my key points: The hostage crisis initially helped President Carter fend off a primary challenge from Sen. Ted Kennedy, as Carter stayed in the White House attending to the issue. However, as the kidnapping wore on, Carter’s weakness became increasingly evident to the American people; it was observed that Soviet government diplomat do not get seized, because everyone realized that the Soviets would respond forcefully. Accordingly, one result of the hostage crisis was the election of Ronald Reagan. (Who of course later made his own terrible mistakes in thinking that he could establish a working relationship with the Iranian tyrants.) Today, Iran is still ruled by tyrants who hate the West in general, and the U.S. in particular, and the West has new leaders who, like many of their predecessors, cling to the vain hope that the Iranian regime can be pacified by concessions. The world’s largest exporter of terrorism, the Iranian regime aims to  dominate the Near East and the Muslim world. With nuclear weapons, the the Iranian regime threatens the whole civilized world. Everything would be different if the Khomeni revolution had been stopped at the very beginning. The longer that regime change in Iranian is delayed, the worse for everyone. […]

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Italy Convicts Twenty-three CIA Agents in Absentia

Unfortunately, I don’t have time to say anything substantive about this now, but AP reports on the conviction of twenty-three CIA agents in absentia in Italy in a trial over an extraordinary rendition.  The AP story is unusually detailed for a wire story and bears reading.  I am in the middle of something and can’t stop to comment  on the substance.

However, I’ll make again the side observation that I have made before that this is the next step in what I have described here and on the OJ blog as “gaming Spain.”  It has been remarked by many observers how the effect of foreign prosecutions or the threat of foreign prosecutions is a backdoor way of punishing administration lawyers and others, such as these CIA agents, for various things that can’t be or are not pursued in American courts.

Less remarked, however, but I predict is the wave of the future, is how these kinds of backdoor prosecutions will, over time, turn out to track Democratic and Republican administrations differently.  Part of this is driven, in my view, simply by a a shared ideology among actors within the Obama administration with the ability to set the agenda on these matters – given the relatively little interest that Republican members of Congress show.  Your mileage may vary on how to interpret the administration’s polite regret and disappointment over the Italian verdicts, for example, and I suppose it is possible that the Bush administration would have shown no greater willingness to use real muscle to make its displeasure felt.

My personal view is that the administration, or at least key players on these matters, however, have concluded that it’s perfectly okay given that the final result is not actual jail for the US persons (I’m lumping together the Italian […]

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The Second Circuit Dismisses Arar Rendition Case, En Banc

My Opinio Juris colleague Julian Ku comments on the dismissal of the Maher Arar rendition case by the Second Circuit in an en banc decision, 7-4.  (Arar is the case of the Canadian who was detained by the US and subjected to extraordinary rendition to Syria.)  Like Julian, and perhaps more strongly, I think the Second Circuit made the right call in deciding not to allow a so-called “Bivens action” for alleged constitutional violations by US officials to go forward, for reasons rooted in the conduct of foreign policy.  Read Julian’s brief comment at the link, but he has an earlier analysis in the links to earlier OJ posts.  (If you want to comment, please do so at OJ.)  (Update:  Another OJ colleague, Kevin Jon Heller, citing to Scott Horton, dissents from Julian and me, citing Judge Calabresi’s dissent.) […]

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UN Special Rapporteur Criticizes US Predator Program in UN Speech

Reuter’s reports on a speech given by Philip Alston at the UN, criticizing the US for its drone attacks or, at a minimum, for not being forthcoming on its drone attacks.  Professor Alston (a friend of mine and well known to many VC professor-readers as an NYU law professor) is the UN special rapporteur on extrajudicial execution.  (I would be curious to see video of the speech if anyone knew of a link; I found the Reuter’s description a little breathless.)

The United States must demonstrate that it is not randomly killing people in violation of international law through its use of unmanned drones on the Afghan border, a U.N. rights investigator said on Tuesday.

Philip Alston, a U.N. special rapporteur on extrajudicial, summary or arbitrary executions, also said the U.S. refusal to respond to U.N. concerns that the use of pilotless drones might result in illegal executions was an “untenable” position.

Alston, who is appointed by the U.N. Human Rights Council, said his concern over drones, or predators, had grown in the past few months as the U.S. military prominently used the weapons in the rugged border area between Afghanistan and Pakistan where fighting against insurgents has been heavy.

“What we need is for the United States to be more up front and say, ‘OK we’re prepared to discuss some aspects of this program,’” the Australian law professor told reporters.

“Otherwise you have the really problematic bottom line, which is that the Central Intelligence Agency is running a program that is killing significant numbers of people and there is absolutely no accountability in terms of the relevant international laws,” he said.

As regular readers know, I think the Predator targeted killing program is perfectly legal; on the other hand, the unwillingness of either the Bush or, now, […]

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A Response to Delahunty’s “The Fourth Amendment Goes to War”

In a forthcoming essay, The Fourth Amendment Goes to War, Professor Robert J. Delahunty defends the October 2001 OLC opinion he and John Yoo wrote while at the Office of Legal Counsel on how the Fourth Amendment applies in the war on terror. The opinion concluded that the Fourth Amendment does not apply “to the use of the military domestically against foreign terrorists,” and that if it did apply, the courts generally would hold the use of the military domestically against foreign terrorists to be constitutionally reasonable without a warrant because the government interest in protecting the nation would outweigh the relevant privacy interests.

Delahunty argues that the opinion is correct, and he concludes by inviting responses:

Despite the shrill criticisms of the opinion, I have yet to see a convincing refutation of it. Let that be a challenge to those of you who think otherwise. I am open to persuasion, as you should be. Let Law and Reason decide.

I think the OLC opinion’s Fourth Amendment analysis is quite weak, so I thought I would take up Delahunty’s offer and explain why I think so. I will first summarize his arguments, and then offer my own response.

I. Professor Delahunty’s Arguments

Delahunty’s basic claim is that the Fourth Amendment applies differently in times of war. There are two basic paradigms for interpreting the Bill of Rights, Delahunty contends: the law enforcement paradigm and the war paradigm. The Bill of Rights as a whole applies differently at war, and after 9/11, we were at war. The OLC opinion properly “read the Fourth Amendment in that light.”

Delahunty bolsters this case by invoking the “special needs” doctrine of Fourth Amendment law that allows warrantless searches and seizures for legitimate government purposes outside of law enforcement if the searches and seizures […]

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