Partial Readings: The Rule of Law

Partial Readings: The Rule of Law

A Hellfire missile loaded on a U.S. Predator drone.

Last Thursday, in a major policy speech at the National Defense University, President Obama unveiled the legal scaffold his Department of Justice has been erecting, one piece at a time, around the “targeted killing” program that has become the signature of his administration’s foreign policy. Facing tough questions, as he put it, “about who is targeted, and why; about civilian casualties, and the risk of creating new enemies; about the legality of such strikes under U.S. and international law; about accountability and morality,” Obama began by boasting that, “Simply put, these strikes have saved lives.” Besides being effective, he said,

America’s actions are legal. We were attacked on 9/11. Within a week, Congress overwhelmingly authorized the use of force. Under domestic law, and international law, the United States is at war with al Qaeda, the Taliban, and their associated forces. We are at war with an organization that right now would kill as many Americans as they could if we did not stop them first. So this is a just war — a war waged proportionally, in last resort, and in self-defense.

In this instance, illustrative of his artfully-crafted speech, the president shows an apparent willingness to engage his critics; in fact, he comes close to channeling Dissent editor emeritus Michael Walzer—whether the latter’s contributions to just war theory or his more recent warnings about drone warfare in Dissent. Obama’s bow to both moderate and more radical critics, such as Medea Benjamin, who repeatedly interrupted Obama’s Thursday speech (she is also the founder of CodePink and author, most recently, of Drone Warfare: Killing By Remote Control, just out from Verso) is disarming. But Obama’s speech remains a resounding affirmation of his policies’ legitimacy. Targeted killings are not only necessary and just, the president insists; they are also legal. There’s nothing you can do about it, he seems to say. Check, and mate.

Authorities on international law—for example, the U.N.—don’t necessarily agree with him. But, as a Senate hearing on the Authorization for Use of Military Force (AUMF) reminded us last week, current U.S. laws, as the Obama administration has interpreted them, largely empower the Obama administration to assassinate, without any independent oversight, suspected terrorist leaders around the world.

Two Pentagon officials testifying in the hearing shared Senator Lindsey Graham’s opinion that “when it comes to international terrorism, we’re talking about a worldwide struggle.” Their conversation continued:

SEN. LINDSEY GRAHAM: Would you agree with me the battlefield is wherever the enemy chooses to make it?

MICHAEL SHEEHAN: Yes, sir, from Boston to the FATA.

SEN. LINDSEY GRAHAM: I couldn’t agree with you more. We’re in a—do you agree with that, General?

BRIG. GEN. RICHARD GROSS: Yes, sir. I agree that the enemy decides where the battlefield is.

SEN. LINDSEY GRAHAM: And it could be anyplace on the planet, and we have to be aware and able to act. And do you have the ability to act, and are you aware of the threats?


To the delight of his staunchest Republican opponents, Obama’s willingness to target forces “associated” with al Qaeda and the Taliban signals his full approval of the notion that “the battlefield is wherever the enemy chooses to make it.” If we add to this notion the definition of enemy combatants that his administration apparently endorsed last year—“all military age males in a strike zone”—the logic justifying drone attacks comes full circle: we kill them because they are our enemies, and they are our enemies because we kill them.

In the three-page “Presidential Policy Guidance” Obama signed in tandem with this week’s speech, a sole footnote purports to retract this definition of a combatant: “it is not the case,” the footnote ends, “that all military-aged males in the vicinity of a target are deemed to be combatants.” But the previous sentence, through a double negative, does include, in the definition of a combatant, “an individual who is targetable in the exercise of national self-defense.” Rather than reversing the chilling “military-aged males” definition of a combatant, Obama’s new “Policy Guidance” merely reinforces the same circular logic through a still vaguer formulation. Who, once targeted, cannot retrospectively be defined as “targetable”?

To round out this hollow—if not outright deceitful—gesture towards accountability in drone warfare, Wednesday’s “Presidential Policy Guidance” concludes by noting that “These new standards and procedures do not limit the President’s authority to take action in extraordinary circumstances when doing so is both lawful and necessary to protect the United States or its allies,” and that a select few members of Congress will be notified—not consulted—when the executive branch is planning to assassinate an enemy abroad. Is this really the bold new framework for accountability that the Obama administration “has worked vigorously” to produce?

The shamelessness of the endeavor is impressive—a far cry, in many ways, from the CIA’s secretive Cold War–era assassination plots. Obama has succeeded in anchoring a legal infrastructure for state-sponsored assassinations on foreign soil while trumpeting it, in broad daylight, as a framework for accountability. Peppered with allusions to the Constitution and to “the law” more generally, the call for transparency instead appears to provide an Orwellian foil for a remarkable expansion of executive powers.

Existing laws, domestic or international, are proving a hopelessly inadequate framework with which to hold the Obama administration accountable for arbitrary assassinations abroad.

No doubt it is tempting to turn to the Constitution, the Universal Declaration of Human Rights, and other relevant legal documents as a litmus test for the validity of government actions. Many progressive media outlets have a tendency to seize on international law, especially, as a straightforward barometer of injustice: this is particularly true in the case of the Israel-Palestine conflict, as an editorial in the current issue of Jacobin points out.

Both domestic and international legal systems often do afford a certain clarity in diagnosing excesses of state power, as well as a certain amount of leverage with which to pressure the states committing the injustices. To hope, however, that legal systems alone can redress gross injustices is naive.

Many leftists—and not just “bloodless liberals”—feel obliged to retain faith in laws and courts as a lifeline against oppression, rather than as mere instruments of that same oppression. Even Marx, when he was subjected, along with fellow Communist League exiles, to a mass show trial in Prussian courts in the 1850s, was convinced that providing sufficient evidence of his innocence would turn the case against his accuser, Wilhelm Stieber, a Prussian secret agent who reportedly forged his evidence against the communists.

In his writings, Marx expressed his disillusionment with all bourgeois institutions, including the courts; in practice, he hoped that the law would serve him justice. Richard Evans highlights this tension in his insightful review of Jonathan Sperber’s Karl Marx: A Nineteenth-Century Life, published in the most recent London Review of Books. “Naively forgetting,” writes Evans, “what they had said in the Manifesto – that the law was just an instrument of class interests – Marx and Engels expected [their evidence against Stieber] to lead to an acquittal, but the jury found several of the defendants guilty, and Stieber went unpunished.”

Marx’s disappointment is all too familiar. It is familiar from situations of international conflict, illustrated by Obama’s drone strikes justifications; it is evident, too, when a police officer shoots dead an unarmed Bronx teenager in his own bathroom, and the charge of manslaugher—not murder—brought against the officer is dropped for procedural reasons by the presiding judge.

This is hardly the first such callous ruling by a New York court in police violence cases; the last time charges were brought against an NYPD officer relating to a fatal shooting on duty, in 2007, they were also dropped. Dozens of New Yorkers have died at the hands of the police since then, and Ramarley Graham’s case was the first that even came close to a criminal conviction—only to be dropped for ludicrous reasons.

Yet New York’s stop-and-frisk opponents are still fighting their battle out in the courts. In recent months, many activists have invested their hopes for fairer policing in a civil class action suit, Floyd, et. al. vs. City of New York, which may just convict the NYPD of discrimination despite the odds. District court judge Shira Scheindlin, profiled in this week’s New Yorker, has gained a reputation for ruling against the NYPD in stop-and-frisk cases, even when it has meant letting apparently dangerous criminals off the hook. In coming weeks, she is likely to do the same for the landmark Floyd case, in what may be a rare affirmation of constitutional law as a bulwark against state violence and for civil liberties. Even if the city wins the case, the spotlight that stop-and-frisk opponents have shined on the NYPD has already led to a 51 percent drop in police stops in the first quarter of this year.

Still, when the powerful choose the battlefield and write the laws of war, meeting them on their terms is a dangerous game.


Elsewhere online:

When police states take lessons from the NYPD.

The Ronald Reagan Building: a fitting location for retaliation against striking workers.

South Asian migrant workers face mass deportation after striking against “slave conditions” in Dubai.

Hundreds of migrants are still dying on the U.S.-Mexico border each year.

The Farm Bill passed by the House last week and currently being debated in the Senate includes new concessions to the biotech industry and an amendment that would block former felons from access to food stamps.

You don’t need a 3D printer to build your own machine gun, but we might need a few to end world hunger.

“Having sought above all to prevent riots, ensure stability and prevent disease, the responders helped spark the first, undermine the second and by all evidence caused the third”: the London Review of Books surveys the grim record of foreign intervention in Haiti. Why is its New York counterpart providing a mouthpiece for the occupying forces?

Obama appears poised to approve the Keystone XL pipeline, even as tar sands investments stall.

California’s pending MOOC accreditation bill—the object of a forceful critique by the New Inquiry‘s Aaron Bady last week—is not the only “capacity fix” reformers have proposed for the state’s overcrowded community colleges: one legislator has also put a proposal for a two-tiered tuition system back on the table. “If students choose to pay a higher fee during a summer or winter session,” said state assembly member Dan Williams, “this would allow them that opportunity.”

Via Michael Walzer: Can there still be a left Zionism?

A bathroom break with Rahm Emanuel.

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