Torture and the mass arrest and indefinite imprisonment without charge of Muslims imputed by U.S. officials to belong to Al Qaeda or to one of its offshoots have become routine parts of the Bush-Obama global war on terror. So too have targeted killing operations against jihadists residing far from the battlefronts in Afghanistan. These unlawful behaviors on our part constitute criminal acts as defined at Nuremberg. The Nuremberg tribunal held after World War II punished Nazis who acted on the premise that in a "state of exception" necessity trumps the laws of international conduct. Yet it is precisely that principle, rejected by the victors, that the Obama administration invokes when publicly declaring its determination to act preemptively and aggressively to avert a strategic setback anywhere in the world.
For the past decade the U.S. military, U.S. Special Forces, and the CIA have committed massive war crimes and most American commentators in the corporate news media have either remained silent in the face of their crimes or celebrated them as great victories over terrorism. The torture of Abu Zubaydah on President George W. Bush's order, the assassinations of Osama bin Laden and two American citizens — Anwar al Awlaki and Samir Khan — on President Barack Obama's order are recent examples of war crimes hailed as victories, when in fact they may be signs of U.S. weakness and political decline.
The Awlaki case in particular is a watershed moment illuminating both the American political system's unconstrained executive power when it comes to war and foreign policy, and the moral degeneration of its ruling elites. Just as their Bush/Cheney predecessors had done with respect to the crime of aggression, the Obama officials who ordered Awlaki's killing subverted the Constitution and flouted international law. They acted in blatant violation of due-process of law and without even revealing evidence to support clearly specified charges against him. The legal experts in the executive branch who ran cover for the Obama decision when they should have challenged and resisted it are only slightly less culpable, as are the CIA and air force officers who carried out the murder.
A substantive democracy resists the class exploitation of others and responds to the voice of the people when they overwhelmingly oppose war. By contrast, a so-called procedural democracy, such as the U.S. proclaims itself to be, prides itself on safeguards and procedures for insuring justice and accountability. They are supposed to matter. By what procedure, on the basis of what evidence and what legal reasoning was this presidential decision to take the lives of U.S. citizens arrived at? George W. Bush and Dick Cheney invoked the "unitary executive" theory to justify torture of war prisoners and warrantless spying on citizens on the basis of mere suspicion. Obama's assassination of the fugitive terrorist Osama bin Laden, who could have been captured by American commandoes and put on trial rather than shot on sight, was an illegal action ordered for domestic political purposes, in violation of international law, U.S. military law, and the U.S. Constitution that Obama promised to obey when he became president. But Awlaki's assassination took the American legal order into a destructive new phase. How did this happen?
Confronted with the rising cost of simultaneous American wars in Iraq, Afghanistan, Libya, and parts of Pakistan, while having also embarked on new proxy wars in behalf of warlords in the impoverished states of the South, such as Somalia, President Obama in 2009 increased U.S. reliance on unmanned, robotic, missile-firing drones. The drone became the "U.S. military's most important weapons system," its "tool of choice." Obama ordered the building of new secret drone bases and stepped-up the drone war inside the client states of Afghanistan, Yemen and Somalia. In the latter two, civil wars compound the suffering of people from the effects of severe climate change. Anyone living anywhere within the American-decreed global war zone stretching from Asia to Africa, and from Europe to the Middle East, whom the president designated an enemy became eligible for summary execution, even though his order was unconstitutional and trampled on the laws of war.
To shield the president from future prosecution for illegal behavior, interagency deliberations were begun in 2009 "involving top lawyers for the Pentagon, State Department, National Security Council and intelligence agencies." As described by Washington Post journalist Charlie Savage to whom the state secrets were leaked, the talks resulted in 2010 in a long (50-plus page) memorandum justifying Awlaki's killing.
Two lawyers in the president's Office of Legal Council — David Barron and Martin Lederman — were the main drafters. One might say that the role John Yoo, David Addington, Jay S. Bybee, and Jack Goldsmith played in justifying torture, the Democratic liberals Barron and Lederman and other White House participants played in justifying assassination. These legal minions of the Democratic president were his assassination authorizers, uncritically accepting the intelligence that came to them. Operating under the aegis of the National Security Council but without meaningful Congressional oversight, they made law in secret. Transparency is as lacking in the Obama presidency's decision-making as it was in that of the Bush presidency. Nor do facts matter: Executive branch proceedings remain secret, not to be shown to the public in whose name war crimes are committed.
According to Savage, who learned about the contents of the secret memo from anonymous administration sources, the drafters simply assumed that Awlaki was a "co-belligerent' playing an operational role in a war between the U.S. and Al Qaeda in the Arabian Peninsula, with a goal of encouraging the terrorist organization to attack the U.S. The lawyers did not "independently analyze the quality of the evidence against" Awlaki. Instead they considered and rejected possible arguments against his murder. Thus they concluded that neither the Fourth nor Fifth Amendment to the Federal Constitution nor Executive Order 12333, forbidding assassination, applied in this case. Whether they addressed Article 23(b) of the Annex to Hague Convention IV, which forbids treacherous acts such as assassination, and found it too to be merely a scrap of paper, is unknown. Nor is it clear whether they took account of Articles 37 and 44 of the Additional Protocol to the 1949 Geneva Conventions, which forbid the "perfidious killing of enemies."
What we do know for sure is that under both international and domestic law, assassination is illegal per se, a proscription that traces back to the Lieber Code of 1863. But now a legal precedent has been set whereby the First, Fourth, and Fifth Amendments to the Federal Constitution plus Executive Order 12333 of 1981, forbidding assassination, have been shredded.
After the administration lawyers, without any reported dissent, signed on to the "legality" of committing the murder of a U.S. citizen, Obama sanctioned the hit in his capacity as commander-in-chief. He did so even though the evidence his lawyers sifted was patchy at best. No wonder that Cheney repeatedly demanded an apology. As constitutional scholar Glenn Greenwald commented, "it is simply a fact that many of the actions for which [Cheney] was so harshly condemned by Democrats and Obama himself (not all, but many) have become Democratic Party dogma under Obama, beginning with the notion that slogans such as We're at War! justify whatever the Leader does and dispenses with quaint, obsolete, pre-9/11 concepts like evidence, charges, trials and due process."
Precedents for Obama's decision had already been well established. Even before the writing of the secret Memo Anwar al-Awlaki had been placed on a hit list maintained by the "Joint Special Operations Command" and for years American drone forces in Yemen had been killing Yemeni civilians. The administration's real nemesis, the missed target of its December 2009 missile strike that killed 30 Yemeni civilians, was Awlaki, a Yemeni-American who had turned against the U.S. because of its foreign policies in the Middle East and Central Asia. Awlaki became a radical preacher, and was alleged to have been an inspirational propagandist. U.S. Special Forces had hunted him, but he managed to elude them until the air force put Operation Troy into effect.
On September 30, 2011, at a remote spot some five miles from the town of Khashef in northern Yemen, a single "hellfire" missile fired from a CIA-operated drone that was flying from a newly built base destroyed the vehicle in which al Awlaki was traveling. Only Awlaki was on the hit list but a young Pakistani-American, Samir Khan, died in the attack because, as routinely happens in drone strikes, no effort was made to prevent civilian deaths. Khan, a journalist, was collateral damage along with three other nameless persons who lost their lives. Because their location for the purposes of a drone strike was clearly known to the administration, the two Americans and those traveling with them could have been captured alive and eventually tried in a court of law, on the basis of evidence that the administration says it has but still refuses to disclose.
Was it domestic political considerations that drove Obama to secretly order the murder of these two American citizens? Did he believe their killing in violation of the due process clause of the U.S. constitution and the laws of war would enhance his "national security credentials as he heads into an election year when the strength of his leadership will undoubtedly be questioned." And should we not also see this event as part of a much larger covert war to roll back the Arab spring wherever opportunity allows, using military aid in Egypt and client armies such as Saudi Arabia's in Bahrain?
Whatever the reason for these murders, Obama immediately went to a military base in Virginia and hailed Awlaki's death as "another significant milestone in the broader effort to defeat al-Qaeda and its affiliates." Thereafter everything he said was unproven. He claimed that "Awlaki was the leader of external operations for Al Qaeda in the Arabian Peninsula," and had taken "the lead in planning and directing efforts to murder innocent Americans. There was no concrete, specific threat to American life at the time of Obama's decision, nor was there any evidence to support his assertions of self-defense and imminent threat as justifications for his decision. Obama conjured the authority to authorize Awlaki's extrajudicial killing on the basis of a legal policy crafted in secrecy by his own functionaries. Moreover, his administration "invoked state secrecy to prevent disclosing to either the public or the judiciary the evidence pointing to Awlaki's "operational involvement" with al Qaeda. In fact, as Glenn Greenwald noted, Awlaki was merely an uncharged, unindicted suspect.
Obama also publicly commended Yemen's strongman dictator-for-life, President Ali Abdullah Saleh, whose misrule ignited the civil war that is now in its eighth month. At the time of the drone killing Saleh had killed, injured, and imprisoned thousands of Yemeni pro-democracy demonstrators who had been seeking his immediate ouster after thirty-four years in power. As journalist Jim Lobe noted, Obama strengthened the impression that Saleh was back in Washington's good graces, having previously called on him to step down while substantiating Saleh's claim to be an "indispensable" American ally.
Reaction in the government and corporate news media has been highly supportive. Congressional Republicans and Democrats, right-wingers and liberals alike, praised the president's action. Mitt Romney called it "a major victory against Islamist terrorism." Since the attitudinal basis for a positive public response to state-ordered murder already existed in the widespread American fear of Muslims and illegal immigrants, it is not surprising that a "CNN poll found 70 percent of Americans supportive of the strike" that killed Awlaki and his companions. Many Americans also delight in the image of elite Special Forces swooping down on Afghan homes in the dead of night, kicking in doors, killing Taliban resistance fighters and any innocent civilians who happen to be present. The dynamic of militarism is at work here, helping to convince Americans who otherwise dislike Obama that at least in this case he acted rightly.
We are living through the historic degeneration of our official form of government — the self-proclaimed American procedural democracy. It has become incompatible with a law-abiding society at home let alone a peaceful world. Due-process-free drone assassinations (like preemptive self-defense strikes, and indefinite detention without trial of non-citizens and citizens who challenge America's unrestrained exercise of power, such as whistle blower Bradley Manning) doom all of us to live in fear inside a fictitious "state of exception," where killing is permanent and the line between politics and law is forever blurred.
The roots of America's crusading course are multiple and go back long before 9/11. But Bush and Cheney partially altered the path the U.S. was on by overreacting to 9/1l and invading and occupying Afghanistan, and later on false pretexts Iraq. The USA Patriot Act, passed without being read by most members of the U.S. Senate on October 26, 2001, was followed two weeks later by Bush's military order, authorizing the indefinite detention and trial by military commissions "of noncitizens suspected of involvement in terrorist activities." The government thereby created persons without legal status and embarked on a path destructive of the rule of law. As Michael Ratner, president of the Center for constitutional Rights, opined, "The dire implications of this killing should not be lost sight of. There appears to be no limit to the president's power to kill anywhere in the world, even if it involves killing a citizen of his own country. Today, it is in Yemen; tomorrow, it could be in the UK or even in the United States." The slow rotting out of America from within by its systems of state capitalism and corrupt, dysfunctional government is getting harder than ever to miss.
Concurrently, the U.S., the first and only nation to use nuclear weapons, and against civilian targets, and the nation that initiated the nuclear arms race, has now accelerated a global arms race in drone weaponry. This new military technology is transforming warfare, undermining international law, and might eventually have lethal blowback effects on Americans at home. Today over 50 nations have missile-firing drones and the number has since increased. Foreign leaders reason that if the U.S. can send unmanned military aircraft over international borders to kill suspected enemies, including its own citizens, they can certainly do the same. Already Britain and Israel have used drone strikes against suspected enemies; Russia and China will not lag far behind.
Meanwhile, as the Obama administration wrestles with its failed foreign and domestic policies, it has chosen the post-Awlaki moment to launch a new, worldwide anti-Iranian propaganda campaign, charging Iran's highest leaders, whom it always demonizes, with a plot to assassinate the Saudi ambassador in Washington, DC. In this instance, the FBI appears to have induced two people, one allegedly deranged, to set the crime in motion; but so far the foiled plot appears to be a fake and the charges unsupported by any direct evidence. But supposing Iran's leaders were to seek to kill one of their enemies in the U.S, why would that be different from the U.S. assassination of its own citizens in Yemen, albeit with the Yemeni dictator's permission, or its repeated assassination of enemies in Pakistan without that country's permission? The double standard of the U.S. government is all too familiar in the present stage of national emergency.
1. David Bomwich, "The Unitary Executive Congress," The Huffington Post, July 10, 2008.
2. Herbert P. Bix, "The Assassination of Osama bin Laden: American Vengeance as Justice," May 26, 2011.
3. Noah Shachtmann, "A Danger Room Exclusive: Computer Virus Hits US Drone Fleet," Oct. 7, 2011.
4. Charlie Savage, "Secret U.S. Memo Made Legal Case to Kill a Citizen," New York Times, Oct. 9, 2011.
5. Justin Raimondo, "Obama's Death Panel," Oct. 6, 2011.
6. Peter Finn, "Secret U.S. memo sanctioned killing Aulaqi," Washington Post, Sept. 30, 2011.
7. Glenn Greenwald, "So much evidence, there is no need to show it," posted Oct. 3, 2011.
8. According to Amnesty International, a strike carried out in the southern Yemeni village of al-Ma'laja on December 17, 2009, took the lives of from fifty-five to over sixty Yemenis, mostly civilians. See Herbert P. Bix,"The North African-Middle East Uprisings from Tunisia to Libya," The Massachusetts Review (Summer 2011), p. 337; Justin Elliot, "Obama set to escalate secret war in Yemen," Nov. 11, 2010; Dana Priest and William M. Arkin, "'Top Secret America': A look at the military's Joint Special Operations Command," Washington Post, Sept. 2, 2010.
9. Scott Wilson, "Obama pushes boundaries in targeting al Aulaqi," Washington Post, posted Sept. 30, 2011.
10. Scott Horton, "Secrecy: Making America Dumber and Less Democratic?" Oct. 7, 2011, harpers.org.
11. Jim Lobe, "Awlaki killing sparks propaganda battle," Asia Times on line, Oct. 4, 2011; Jason Ditz, "Saleh Hopes to Parlay Awlaki's Kiling Into Continued Rule," Oct. 4, 2011.
12. Anthony Gregory, "Obama, the Ground-Breaking President?" Huffington Post, Oct. 7, 2011.
13. Gareth Porter, "How McChrystal and Petraeus Built an Indiscriminate 'Killing Machine,'" Truthout, Sept. 26, 2011.
14. Giorgio Agamben, State of Exception, transl. by Kevin Attell (Univ. of Chicago Press, 2005), pp. 1-3.
15. Michael Ratner, "Anwar al-Awlaki's extrajudicial murder," Guardian UK, Sept. 30, 2011.
16. John Horgan, "Drone Assassinations Hurt the U.S. More Than They Help Us," Scientific American, Oct. 3, 2011.
17. Scott Shane, "Coming Soon: The Drone Arms Race," New York Times, Oct. 8, 2011.
18. CBS News, "U.S. aims to 'unite the world' against Iran," Oct. 12, 2011; John Glaser, "No Direct Evidence of Iranian Government Complicity in Plot," antiwar.com, Oct 12, 2011.
Herbert Bix, author of Hirohito and the Making of Modern Japan, which won the Pulitzer Prize, teaches at Binghamton University and writes on problems of war and empire.