A Midterm Review of the Middle East, Torture, and Trials
Meet the new boss, same as the old boss.*
The Bush administration hobbled out of office after narrowly avoiding prosecution for war crimes and did so with the opprobrium of the American people: At the end of the Bush presidency, a third of the country approved of Bush’s job and two-thirds disapproved of the job he did.1 That was before we knew the less-than-full extent of what happened during his administration that we do at this writing in 2014.
The American people, however, would not be fooled again!2 They voted out the old Republican autocracy and would then bring about change. There was hope for the future in an intelligent new Democratic presidential candidate: Barack H. Obama, the legal scholar and young senator from Illinois. He was being inaugurated while the Cheney-Bush administration was on its way back to Texas, and Yoo was back at UCLA Berkeley Law School. Obama promised to reject Bush-era war hawkishness by ending the Middle Eastern wars quickly, closing Guantanamo, and running a more transparent government. His high-handed talk and personal credibility earned him a Nobel Peace Prize within days after he took office.
Bush was the great “tragedy,”3 but Obama has become the great hypocrite. He took on the mantle of his predecessor’s wars and expanded on his powers just as Bush had expanded on Clinton’s.4 Despite his promises to rebuild our international relations after the Bush years, our allies find him an “unreliable partner.”5 President Obama, the ebullient and intelligent new face on the oldest of despotic institutions—commander in chief in a time of war—took the power even further: The unilateral ability to claim a citizen’s life without judicial process.
In 2010, Bob Woodward of the Washington Post, one of the reporters who broke the Watergate scandal in the 1970s, published a book on Obama’s alteration of Afghanistan and Iraq war policy in the Pakistani Theatre entitled Obama’s Wars.6 The book title was, like Obama’s Nobel Peace Prize, premature. Obama continued the Bush odyssey into perpetual war, giving Bush’s neoconservative wars the neoliberal, bipartisan imprimatur.7 Specifically, he advanced the presence of the United States in Somalia, Yemen, Pakistan, and Libya, bringing the United States into a total, unending war in the Middle and Near East—and he did it in secret.8
Moreover, he attacked the natural right of people to elect their own government in the same fashion as the predecessor he denounced and claimed further war powers. The Bush-Obama Wars maintained the health of the state in terms of fear and government power, however, Obama would also claim he could wage a geographically unlimited war on terror through the AUMF.
A perfect example of the total lack of change in foreign policy between the Bush and Obama administrations is the Somali Theatre of the Middle and Near East Wars.
Following the Battle of Mogadishu in 1993 where U.S. forces under Clinton took a demoralizing loss in the Black Hawk Down incident, and the subsequent U.N. withdrawal in 1994, Somalia returned to its “perpetual state of civil war.”9
During the Bush years in late 2002 and 2003, U.S. intelligence officials made contact with Mohamed Afrah Qanyare, a Somali warlord, to “ ‘[discuss] intelligence business.’ ”10 Al Qaeda had hit Kenya in November, and they believed that the same cell responsible for those attacks and the 1998 embassy bombings was operating in Somalia.11 Although “[r]adical Islam was new to Somalia and was not widespread before the launch of the Global War on Terror,” the Bush administration saw “the governmentless nation of Somalia [as] prime territory for al Qaeda [and its leaders fleeing Afghanistan] to set down new roots.” “[E]minent analysts of the country’s affairs” considered the threat of an al Qaeda takeover minimal or nonexistent.12
Thus, Operation Black Hawk was born: A U.S. “old-fashioned proxy” war being carried out by brutal Somali warlords whose power the United States expanded.13 The U.S. plan was simple:
Instead of strengthening the Somali government, [Somalia’s then foreign minister] said, “they started cooperating with the warlords, thinking that the best way to combat terrorism was to help the warlords become stronger, and chase away the fundamentalists from Somalia. That backfired. . . .”
Although US forces did not immediately move into Somalia . . . the expanded US base at Camp Lemonnier in Djibouti was rapidly becoming a hub in the Horn of Africa for JSOC and the CIA.14
This plan “caused a radical backlash in Somalia.”15 JSOC was set to back up the CIA and its warlords.16
Warlords like Qanyare went crazy with the free rein of the Bush era’s hunting program, “engag[ing] in an all-out targeted kill and capture campaign against anyone—Somali or foreign—they suspected of being a supporter of any Islamic movement.”17 Somali captives were rendered via the U.S. navy to Ethiopian prisons and tortured using “electric shocks,” then returned to “the Somaliland gulag.”18 “[I]n many cases, [the warlords] were chopping [suspected Islamists’] head[s] off and taking the head[s] to the Americans.”19 The error rate for warlords was rumored to be as high as seventeen civilians to three “targets.”20 It was a “[n]o mercy” program, in the words of Qanyare.21 And it was facilitated by the U.S. government.
The United States’ Somali program, however, “open[ed] the doors . . . for al Qaeda to step in,” creating a problem where there was once none in a foreign country.22 “By 2004, the [Central Intelligence] Agency’s outsourced Somalia campaign was laying the groundwork for a spectacular series of events that would lead to an almost unthinkable rise in the influence of al Qaeda in the Horn of Africa.”23
The warlord alliance was detested because “they were killing Somalis in the service of a foreign power.”24 The United States was growing more and more obsessed with perpetual war and “want[ed] to start an open war in Mogadishu.” “It was this horrific era that gave birth to the Islamic Courts Union (ICU).”25
The ICU was a non–al Qaeda response to the years of brutal warlordism.26 In 2004, several local Sharia courts formed under Sheikh Sharif Sheikh Ahmed to fight back against the oppressive warlord agents of the United States and Ethiopia, Somalia’s longtime enemy and U.S. ally.27
Philosophically speaking, the Somali people were the closest thing to a State of Nature in 2004. They began to organize spontaneously into a system of laws and adjudication across tribal lines—they were creating a social compact. The United States and Ethiopia flooded in weapons and backed the warlords (sometimes with JSOC personnel) in order to prevent this order from establishing. The U.S.-Ethiopian forces were thwarting the voluntary social compact of another country, a violation of the right to enforce the Natural Law, and the American people and Western press did not know the gravity of this.
In February 2006, the CIA-warlord alliance responded by creating the Alliance for the Restoration of Peace and Counterterrorism with a six-month goal to wipe out the ICU and the terrorists.28 An open declaration of war between the warlords and the ICU followed.29 During the war with the CIA warlords, the ICU made uneasy allies with the terrorist organization Harakat al Shabab al Mujahideen (al Shabab)—but did not permit them to join the courts.30
In “just four months . . . [the ICU] d[rove] out the CIA’s warlords.”31 The ICU took control of the Somali capital, Mogadishu, on June 5th 2006.32 Much like our Founding Fathers had their Tory neighbors and England out of their land to enforce their social compact and natural rights, the ICU prevailed over the mercenary-warlord forces of the CIA in a surprising victory. Like King George III, George Bush II was stunned by the sting of loss, “[W]e will strategize more when I get back to Washington [from Texas] as to how to best respond to the latest incident there in Somalia.”33
The ICU took down roadblocks and other governmental military institutions that were inhibiting commerce and brought a “modicum of stability” to Somalia.34 Food prices dropped in the starved country, crime rates dropped, and people “felt safer than they had at any point in sixteen years.”35 The Bush administration elected “not [to] allow” this multi-group, consent-based government to continue.36 It contemplated killing Sheikh Sharif and made a deal with the Devil.37 The United States got Somalia’s “historical enemy” Ethiopia to invade, bringing a cavalcade of “horror and chaos” to Somalia.38
In 2006, the U.S. government was “nobly” lying through its teeth in characteristic fashion as the United States saber-rattled about al Qaeda being in bed with the ICU.39 Ethiopia’s warlord era was over, but its occupation had begun in the new year of 2007. Al Shabab, one of the only Somali groups sympathetic to al Qaeda, began an insurgency against the U.S.-Ethiopian foreign overlords, ruling from thousands of miles away.40
The 2007 campaign/occupation involved a “concentrated campaign of targeted assassinations and snatch operations by JSOC [and Ethiopians] in Somalia,” which had the benefit of “producing few significant counterterrorism results.”41 The United States and the proxy Ethiopians were wiping out a bunch of civilians through machine-gun strafing and running a terror campaign.42 They tapped Sheikh Sharif to become a new leader, despite planning to kill him and usurping his government a few months earlier. The occupation was ugly:
By early February 2007, the Ethiopian invasion had become an occupation, which was giving rise to widening unrest. . . . The occupation was marked by indiscriminate brutality against Somali citizens. Ethiopian and U.S.-backed Somali government soldiers secured Mogadishu’s neighborhoods by force, raiding houses in search of ICU loyalists, looting civilian property, and beating or shooting anyone suspected of collaboration with antigovernment forces. They positioned snipers on the roofs of buildings and would reportedly respond to any attack with disproportionate fire, shelling densely populated areas and several hospitals. . . . Extrajudicial killings were widely reported, particularly during the final months of 2007. Accounts of Ethiopian soldiers “slaughtering” men, women and children “like goats”—slitting their throats—were widespread, Amnesty International noted. Both Somali Transitional Government forces, led by exiles and backed by the United States, and Ethiopian forces were accused of horrific sexual violence. Although forces linked to al Shabab were also accused of war crimes, a large portion of those reported . . . were committed by Somali government and Ethiopian forces.43
Whether American or not, people have natural rights that differ from and overlap with their constitutional and statutory rights—the Natural Law is discoverable through reason, and the rights it conveys are reposed in the bosom of all humanity. One of those rights is self-determination. Clearly, respect for natural liberty from Americans who had no business there would have worked out better for Somalia and the ICU. The United States and its proxies had usurped the Somalis’ natural right to form a governmental compact, killing more than six thousand civilians and imposing despotic law without the consent of the governed44—a typical outcome of U.S. proxy war taking the background in civil conflicts.
“[A]l Shabab emerged as the vanguard against foreign occupation.”45 As Jeremy Scahill pointedly noted in his book Dirty Wars, “Every step taken by the United States benefited al Shabab.”46 The insurgency bombed the prime minister’s house, killed hundreds of U.S. proxy troops, and brought the expert fighters—the former Afghani mujahideen, al Qaeda—into the mix.47 In 2008, the Ethiopians left, and the transitional government under the rebranded Sheikh Sharif was labeled as turncoats and scalawags.48
Al Shabab, despite a hard-line Sharia philosophy, won cultural support to defeat the Somali government, soon “control[ling] more land than any other al Qaeda-affiliated group in history.”49 They established Sharia courts to fill the absent judicial system and brought “food, money,” and water.50 They negotiated with clan leaders for bloodless takeovers and dismantled roadblocks, which, as discussed earlier, were economic dampers—“checkpoints here historically used by warlords as tools of extortion rather than security.”51 All in all, America was losing the culture war to al Qaeda because of Bush’s stupidity and his agents’ brutality.
What would Bush’s successor do with the benefit of hindsight? Despite the clear learning experience of the Bush administration, Obama made considerable headway, as a Russian foreign minister would point out, handling “the Islamic world like ‘a monkey with a grenade.’ ”52
Upon taking office, Obama immediately shifted funding to another foreign mission in Somalia, the African Union Mission (AMISOM), in order to counter the growing and widely successful al Shabab insurgency.53 He wanted JSOC to get “more aggressive” in Somalia and shipped weapons to the Sharif government.54 The Speaker of the Somali Parliament at one point even called for, among others, Ethiopian troops to come back to support the Sharif government.55 Propping up a government without the consent of the governed was proving to be Obama’s game as well.
In 2010, al Shabab joined with local militias and al Qaeda international by conflating “its embrace of the terror group with resistance against foreign aggression.”56 Warlords switched sides based on internal politics, showing the utter lack of cogency to the plan of foreign intervention.* Suicide bombings continued.57
Continuing through 2011, the render-then-interrogate program was a large part of Obama’s war in Somalia.58 However, the assassinate-and-intervene plan was having success in Somalia. By August, al Shabab was in a “weakened state” losing the war and had almost no money due to military losses and a drought; but it had Mogadishu.59 It appeared “on the ropes.”60 With the economic devastation, winning the culture war would have been possible through tactics similar to how al Shabab rose in the first place—some people need water, not bombs.
The United States, however, opted for the route of perpetual war and “total savagery throughout the country.”61 Al Shabab engaged in a strategic retreat and then came out again, attacking the U.S.-backed AMISOM mission with guerilla terrorist tactics. It also began to use al Qaeda to strengthen its hold over the hearts and minds of the Somali people. “[Al Qaeda high-up Abu Abdullah al-]Muhajir and his allies distributed food, Islamic books and clothes at the [Somali refugee] camp [they were visiting], which housed more than 4,000 people.”62 The al Qaeda delegation also brought an ambulance. . . . [Muhajir] handed out bags full of Somali shillings, equaling about $17,000.”63
The sobering realization is that despite what party is elected, the ways of creating perpetual war under noble lies—foreign influence in civil wars, assassinations, clandestine paramilitary, and covert military operations—remain the same. This is how Obama carried out Bush’s foreign policy: He expanded on it with minor modifications. Thus, the theme throughout this section is that Obama did little else but endorse Bush-era policies and enlarge the executive power at the expense of the civil liberties of hundreds of millions of Americans.
Bush bears at least half the blame for the disaster that continues to be Somalia, but Obama primarily is to blame in three other theatres: Waziristan, Libya, and the one discussed here, Yemen.
Ali Abdullah Saleh had been president of North Yemen and then unified Yemen since the Carter administration. He was a shrewd power broker and knew how to keep himself and his family ruling Yemen across the administrations of six different American presidents and avoided going “the way of the Taliban” by using terrorism and instability to scare the United States into helping him.64 In 2001, Saleh decided to be forthcoming and helpful to the United States, and he traveled to visit Bush and Cheney.65 He granted permission to the United States to fly drones freely in Yemeni skies.66 Saleh carried out a good-faith raid for the United States (which failed miserably) to get some terror suspects, and U.S. military “trainers” were sent to him.67 Bush had enlisted a second proxy ally. By 2002, the United States was running drone assassinations and enlisting local tribal leaders with Saleh “to kill people it designated as terrorists, in any country, even if they were US citizens.”68
In 2003, several terrorist attacks in Yemen resulted in a crackdown on terrorism and several hundred arrests and incidents of violence.69 However, between 2004 and 2010, Saleh was engaged in a civil war against the Houthi minority with the support of U.S. drones and Special Forces, and Saudi Arabia.70 He “consistently used allegations of Iranian support for the Houthis and deliberately conflated them with al Qaeda.”71 This laid the groundwork for the “sleeping giant” al Qaeda in the Arabian Peninsula (AQAP) to come into being in the Obama years.72
Several al Qaeda leaders escaped prison in Yemen in 2006 and began building up AQAP.73 By 2008, a few months before Obama took office, they had launched “a massive kamikaze attack on the US Embassy in Sana’a[, Yemen],” to which the campaigning Obama responded war hawkishly.74 “JSOC teams carried out unilateral, direct actions against al Qaeda suspects in Yemen. These operations were never mentioned in public.”75 By January 2009, the stage was set: AQAP was a full force, and JSOC was working in Yemen.76 Would Obama divert from his predecessor’s imperial whimsy?
In the first year of the Obama presidency, “the security situation deteriorated significantly.”77 Obama adopted a plan that was “ ‘heavily militarized, [and] heavily focused on directly neutralizing the threat, instead of kind of draining the swamp.’ ”78 JSOC took the lead in the new Yemeni theatre, and the United States sent over more military trainers following a defeat of Saleh’s forces by al Qaeda in summer 2009.79 By December 2009, the U.S. proxy was ingratiating the enemy to the local population, and Saleh was destabilizing. Scahill used the case of Sheikh Saleh bin Fareed as an example of how factions who would otherwise be allies against terrorism turned into anti-American fighters because of the aggressive U.S. policy—which had nothing to do with 9/11.
Bin Fareed was a powerful tribal leader. His territory included the town of al Majalah. On December 17th 2009, Fareed learned that al Majalah was the subject of an aerial attack, ostensibly by the Yemeni government, which claimed credit for the attack, but in reality the attack was the “opening salvo in America’s newest war.”80 Bodies were everywhere in the massacre: “Five pregnant women were killed.”81 The town was “littered” with cluster bombs that had U.S. markings on them, including serial numbers.82 The United States covered up the incident and let Yemen take the blame, calling al Majalah an al Qaeda terrorist camp.
Bin Fareed would have none of it. He hosted a large conference of tribal leaders “to show their solidarity with the victims of the missile strike.”83 When members of al Qaeda asked to speak at it, he prohibited them, and when they violated his wishes, he unsuccessfully tried to kill the al Qaeda recruiters.84 The al Majalah massacre was becoming a rallying cry for opposition against foreign missiles from the skies.85
By January 2010, JSOC was moving at a two-dozen-operations-a-month pace in Yemen, and the regional instability coupled with the rise of AQAP, in which the United States played no small part, began to garner media and administration attention.86 It was “The Year of the Drone.”87 Obama “formaliz[ed] the process for conducting assassinations against terror suspects,” permitting three executive organs of government—the National Security Council, CIA, and military—to maintain active and open kill lists that he personally approved.88 That year the CIA took its first attempt at killing the imam Anwar al-Aulaqi by drone.89 Through 2010, however, the Yemeni forces continued to kill civilians ineptly while letting al Qaeda forces escape, much to the chagrin of the equally challenged JSOC.90
By 2011, the Arab Spring had hit Yemen, and thousands of protesters were in the streets of Sana’a seeking President Saleh’s ouster.91 The United States was getting involved in Libya’s civil wars but was concerned over potentially losing Saleh and AQAP’s advances in southern Yemen, so it continued to run the strategy of “bomb[ing] [AQAP] out of existence.”92 The United States “was shifting tactics. With the Saleh regime severely weakened, the Obama administration calculated that it had little to gain from that alliance at this stage. The United States would double down on its use of air power and drones, striking in Yemen at will to carry on its campaign against AQAP. The Obama administration began quick construction of a secret base in Saudi Arabia.”93
America became like the terrorists it had fought to kill: “ ‘The US sees al Qaeda as terrorism, and we consider the drones terrorism,’ [major tribal leader Mullah Zabara] said. ‘The drones are flying day and night, frightening women and children, disturbing sleeping people. This is terrorism.’ ”94 President Obama said it best, “[N]o country on Earth . . . would tolerate missiles raining down on its citizens from outside its borders.”95
The Waziristani (Pakistani) Theatre
The U.S. presence in Pakistan, or more accurately the war in Waziristan (a tribal region of northern Pakistan) is the subject of intense investigation (as relatively little is known about its proceedings) and is the subject of significant treatment by commentators.* Much as they did in Yemen, covert and clandestine operators would carry out the war with drones hovering high above.96 Unlike Yemen, however, the Pakistani government cared about sovereignty, and the United States had to conduct its Pakistani war in a more limited manner, so as not to appear to be at war with Pakistan.97
In 2002, the Pakistani and U.S. officials then in power brokered an arrangement where the United States could engage in hot pursuit of terrorist suspects entering Pakistani territory, and that was the extent of U.S. involvement.98 However, “[e]veryone in Pakistan knew the CIA [and JSOC were] operating extensively in the country—every drone strike was a stark reminder—but the US military could not be perceived to be in the country for any purpose other than training Pakistani forces.”99 And there it was: A third secret war theatre.
The plan to get deep into Pakistan with the global War on Terror “stalled as a result of the ongoing fight for control of Pakistani operators between the CIA and the Pentagon,” as late as 2008.100 After years of drone wars, when the Bush administration finally got its act together enough to carry out the war with ground forces, it was a few months until the guard changed to President Obama, and the SEAL team’s first attack was a blunder, resulting in many civilian deaths—men, women, and children—displeasing Pakistan.101
After taking office, “Obama began striking Pakistan almost weekly.”102 He gave theretofore unauthorized access to sensitive government facilities to Blackwater drone contractors and broadened the acceptable zone of military action in Pakistan.103 He even let the conflict spill over into nearby Uzbekistan.104 That’s the world under the AUMF. What did Uzbekistan have to do with 9/11?
The extent of the U.S. clandestine involvement in Pakistan and the unbridled liberty with which it acts there are not fully known. However, the 2011 “curious case of Raymond Davis” sheds some light.105 Davis, a clandestine operative reporting to JSOC with diplomatic immunity under a nonsense cover, was conducting intelligence in the streets of Lahore when the ISI, the Pakistani intelligence services, decided to send him a message. As he was traveling on January 27th, two young men on a motorcycle pulled in front of him:
At some point, Davis pegged the two guys on the motorcycle in front of him as a threat. As he told it, one of the men brandished a firearm in a menacing way. Davis grabbed his Glock 9 and fired five shots through his front windshield, with deadly precision, taking down Muhammed Faheem, who was on the back of the bike. One shot hit him in the head, just above his ear. Another pierced his stomach. The driver of the motorcycle, Faizan Haider, hopped off the bike and started to flee. Davis, Glock in hand, stepped out of his car, aimed and fired five more shots. Haider fell thirty feet from his motorcycle. At least two shots hit him in the back. He later died in the hospital.106
“The postmortem report indicated that both men who were killed by Davis were shot from behind.”107 Davis’s nonsense cover was that he worked for the Regional Affairs Office as “a bureaucrat who stamped passports and performed administrative duties—essentially a pencil pusher.”108 President Obama, nobly lying, proudly claimed Davis as a member of our diplomatic corps.109 However, a later search of his car by the Pakistani police would reveal a spy kit worthy of James Bond, including makeup, surveillance equipment, extra ammunition, various IDs, ATM cards, night equipment, and a cache of other spy tools.110 Moreover, his background wasn’t exactly the run-of-the-mill, Ivy League diplomat—Davis was “a seasoned Special Forces operator,” with experience from the Green Berets to JSOC, to Blackwater in Pakistan, from laundering money to conducting clandestine operations.111 Needless to say, the plain evidence belied his and Obama’s cockamamie diplomat line.
Of course, as Scahill pointed out, “accept[ing] this version of the story would require believing” a completely absurd series of events: “[T]hat an administrative staffer at the consulate would, by chance, be so cool-headed . . . so skilled with a glock . . . [that] with an assassin’s precision, [he would kill] . . . two assailants by firing his weapon from behind the steering wheel through the windshield of his car.”112
Was this paper-shuffling diplomat in any way fazed by this encounter? Did he call the police to assist him? No:
According to eyewitnesses, after shooting the two men, Davis returned calmly to his vehicle and took out a military grade radio. He called for backup.
Before getting back into his vehicle, onlookers in the crowded intersection watched as Davis walked over to the blood-soaked bodies of the two men he had shot and photographed them. As crowds began to descend on the streets, the potential for a mob was forming. Traffic police called out for Davis to stop. He ignored them, got back in his car—the windshield riddled with bullet holes made by his own Glock—and sped off.113
The backup that he radioed operated with equally reckless disregard for the rule of law. As soon as it hit traffic, the backup vehicle hopped up on a median and “punched it,” “darting into oncoming traffic.”114 Predictably, the backup vehicle “slammed into the motorcycle of a Pakistani man, Ibadur Rehman.” The man was crushed.115 The vehicle continued to the scene, but it fled after the occupants realized Davis was already gone.116
By February the case was a nightmare for the United States. Davis played the diplomatic immunity line and claimed he fired in self-defense.117 The case, the intrusion upon sovereignty, and the blatancy of the U.S. lies incensed the Pakistani people. The widow of one of the men, Shumaila Kanwal, recorded a video of herself demanding revenge on the Americans—“ ‘blood for blood. . . . No deals.’ ”118 Shumaila had swallowed rat poison before the video, protesting her husband’s killing.119 It was recorded as a death message to ensure justice for his murderer. “Back in Washington,” however, “the full weight of the Obama administration was being thrown behind the cause of his freedom.”120
The administration’s lie machine was in full swing, and “Obama, Kerry, and other US officials publicly characterized Davis as a diplomat” and pressured the media into suppressing the story.121 The New York Times, true to form since withholding the Total Information Awareness–program story in 2004, withheld the fact that Davis was an active CIA agent at the time of his capture.122 Also true to form, the Guardian, despite CIA and MI5 pressure not to print the story, went ahead and let the people know the truth.123 However, as Glenn Greenwald pointed out in a piece for Salon, “The NYT’s Journalistic Obedience,” in this case the Times was not merely concealing a story; it was contributing to spreading false propaganda for the government—the exact antithesis of the function of a free press.124
Once the CIA-Davis link was officially reported, the ISI began cracking down on CIA agents in Pakistan, and “dozens of ‘contractors’ fled the country.”125 Relationships between the ISI and the CIA had soured to an unprecedented level.126 This was a total disaster because without operations and war in Pakistan, there was no chance of winning in Afghanistan. America’s global war machine depended on the critical link of ISI compliance and Pakistani subservience.
ISI, CIA, and military officials from both countries met in a luxury beach resort in Muscat, Oman, and began to hammer out a deal for blood money.127 Of course, this was despite the fact that the families and the dead widow had been adamant in insisting upon justice by law rather than bribes. The U.S.-Pakistani cabal came up with a plan to use a provision of Sharia law, diyyat, in order to receive a pardon from the family in exchange for money.128
The family’s reluctance to accept such an arrangement was also no obstacle:
[At the first day of Raymond Davis’s trial,] . . . instead of witnessing the presentation of evidence, the testimony of eyewitnesses or the questioning of Davis, the family members were ordered to sign papers pardoning the American. “I and my associate were kept in forced detention for hours,” claimed an attorney for the family of Faizan Haider. Each of the family members was brought before the judge and asked if he or she pardoned Davis. Under intense pressure, all of them answered yes. The judge then dismissed the case against Davis and ordered his release. “This all happened in a court and everything was according to law,” [the Punjabi Law Minister] declared.129
The United States paid $2.3 million to the families of his victims and to some people in the local government at Lahore. Hillary Clinton “praised the arrangement.”130 Pakistani sovereignty was a convenient fiction for a government selling the sovereignty of its people to an American government that had no pause for even a moment in seizing it.
In 2011, the world tossed the American perpetual war machine a freebee—the health of the state would be supported by the toppling of an ancient enemy from the days of Reagan: Col. Muammar Qaddafi. The Libyan civil war and the ill-fated prospect of rebel success in the war provided convenient “window dressing to cover a western military intervention that was supposedly for humanitarian purposes.”131
The phrase “ancient enemy” is a bit questionable. Ronald Reagan called Qaddafi the “mad dog of the Middle East” who aimed to achieve a global “Moslem fundamentalist revolution.”132 Indeed, in 1986 Qaddafi’s government supported the Berlin discotheque bombing and later supported the 1988 Lockerbie bombing. Reagan launched strikes in Libya aimed at killing Qaddafi on April 15th 1989, merely six days after calling him a mad dog. To President Bush and Prime Minister Tony Blair, however, Qaddafi was an ally and an asset.
In 2003, Qaddafi began courting the West and renounced terrorism.133 In response and eyeing Libyan oil, Bush lifted economic sanctions in 2004.134 Moreover, Libya became part of Bush’s rendition and torture program, with victims telling their stories for the “first time . . . because until last year [2011] they were locked up in Libyan prisons.”135 Secretary of State Condoleezza Rice made public that the administration was “restoring full diplomatic relations with Libya” in 2006 and opened an embassy.136 By 2008, Qaddafi had paid for the victims of the Lockerbie bombing, and President Bush engaged in the unprecedented step of speaking directly to Qaddafi over the phone. They were on the road to “full normalization of diplomatic relations between the United States and Libya.”137
By August 2009, well into the Obama administration and with the blessing of Secretary of State Hillary Clinton, the McCain-led senatorial delegation to Libya hailed him as “an important ally in the war on terrorism” and “a peacemaker in Africa.”138 A little more than two years later, his “allies” ensured that he would be ousted and killed by rebels.
Then the Arab Spring came; in February 2011, Libyan rebels under the National Transitional Council began fighting against Qaddafi. Initially, many senior Libyan politicians defected, and the rebels gained large swaths of territory in the east, but Qaddafi was quick to respond and by March, it appeared that he was going to win. Reacting to the asymmetrical fighting between Qaddafi’s professional army and air force, and Libyan rebels trying to topple his government, the U.N. Security Council adopted a resolution that created a no-fly zone over Libya.139
President Obama had a problem: The United Nations is not Congress and can’t commit U.S. troops to war. The Security Council resolution was not enough to declare war formally. Obama began by following the requirements of the War Powers Resolution of 1973 (WPR): “When Mr. Obama first announced American military involvement in Libya, he notified Congress within 48 hours, as prescribed by the War Powers Act.”140 However, that was the end of his legal compliance.
Obama’s OLC acting head, Caroline D. Krass, “told the president that he had to abide by the act’s requirements.”141 This would have interfered with Obama’s power to operate unilaterally in global war, so “the White House counsel [Robert F. Bauer] decided to pre-empt the Justice Department’s traditional role.”142 Similar to the OLC and White House counsel splitting over the Torture Memos, “[a]s the war powers deadline approached, Mr. Bauer held a series of White House meetings at which he contested the Office of Legal Counsel’s interpretation [of the WPR] and invited leading lawyers from the State Department and the Pentagon to join him in preparing competing legal opinions for the president.”143
Needless to say, Obama selected Bauer’s opinion: “[T]he billion-dollar bombing campaign in Libya does not amount to ‘hostilities’ under the War Powers Act.”144 This is, of course, absurd. The WPR broadly uses the term hostilities to avoid the distinction between war and policing actions or the many other euphemisms for war that presidents claim create a distinction between their “limited” armed conflicts and the previous four thousand years of war history. For example, as was discussed earlier, Vietnam was a war in every real sense but not a legal one. After notifying Congress, the president has sixty days to get authorization, and if it is not provided thereafter, then thirty days to end hostilities. According to Yale Law School Professor Bruce Ackerman writing in the New York Times on June 20th 2011: “Last Sunday was the 90th day of bombing in Libya, but Mr. Obama—armed with dubious legal opinions—is refusing to stop America’s military engagement there.”145
On March 19th 2011, with no formal declaration of war and in violation of the WPR, the United States and its allies shot cruise missiles, enforced the no-fly zone, began toppling an evil dictator, and promised what would become a catchphrase of the Obama administration’s lies: “[N]o boots” on the ground.146 On March 24th, boots did hit the ground, and hostilities continued when NATO took over, which, of course, would involve American boots and troops. NATO action also is not an exception to the War Powers Resolution. It doesn’t matter what a treaty says—the power to declare war rests solely with the Congress, regardless of whether it is called hostilities, action, intervention, or war. By October, the United States had killed Qaddafi through its proxies and its clandestine operators.
In an August 2011 article, John Barry detailed the fourth U.S. secret theatre in the Middle and Near Eastern Wars:
The U.S. military has spent about $1 billion so far and played a far larger role in Libya than it has acknowledged, quietly implementing an emerging “covert intervention” strategy that the Obama administration hopes will let America fight small wars with a barely detectable footprint. . . .
But behind the scenes, the U.S. military played an indispensable role in the Libya campaign, deploying far more forces than the administration chose to advertise. And at NATO headquarters outside Brussels, the U.S. was intimately involved in all decisions about how the Libyan rebels should be supported as they rolled up control of cities and oil refineries and marched toward the capital, Tripoli.147
The United States provided CIA, intelligence, surveillance, Special Forces support, drones, refueling ships, missiles, air support, bombs, and NATO to support the rebels148—another clandestine, proxy civil war. Boots were definitely on the ground on October 5th 2013 when—despite Libya’s claims that it gave no permission to impede on its sovereignty and that Libyan government officials “have vowed for months that their new government would never countenance Western military action on Libyan soil for any reason”—U.S. Special Forces operators captured accused terrorists Abu Anas al-Libi and Nazih Abdul-Hamed al-Ruqai.149
And for all of America’s drones and planes, how is Libya faring post-Qaddafi? On the eleventh anniversary of 9/11, AQAP and radical militants attacked the U.S. embassy in Benghazi, killing the U.S. ambassador and three State Department contractors hired to protect him.150 “Protests and strikes . . . have throttled Libya’s daily oil production to one-tenth its capacity, jeopardizing the national economy.”151 “[N]ational military and police forces remain largely impotent.”152
Torture and Unlimited Rendition
George Washington once said, “Should any American soldier be so base and infamous as to injure any [prisoner] . . . I do most earnestly enjoin you to bring him to such severe and exemplary punishment as the enormity of the crime may require.”153 In that spirit, on January 22nd 2009, President Obama signed Executive Order 13491, “Ensuring Lawful Interrogation.”154 In large part the world believes that Obama has fundamentally changed the game forever on American torture regimes.
However, this is an important misunderstanding of what Obama did. There is a difference between saying, “The president does not have the power to torture” and saying, “The president does not torture.” One denies the premise; the other grants it, but shows the president is electing not to exercise the power. Obama’s order suffers from two fatal flaws: The Army Field Manual Appendix M loophole and the veil of secrecy.
Obama’s order states, “[A]n individual in the custody or under the effective control of . . . the United States Government, or detained within a facility owned, operated, or controlled by a department or agency of the United States, in any armed conflict, shall not be subjected to any interrogation technique or approach, or any treatment related to interrogation, that is not authorized by and listed in Army Field Manual 2-22.3 (Manual).”155
However, Appendix M of the Army Field Manual (with amendments from the Bush era) permits the isolation of prisoners; forty straight hours of interrogation with four-hour rests; “goggles, blindfolds and handcuffs” for up to twelve hours; and “physical stress.”* Moreover, as the Human Rights Watch reported in 2012, individuals who were rendered to third countries, such as Libya, were still being released well into 2011.156
Thus, despite all the puffery of the order, American soldiers can certainly be so base as to strike prisoners and do much worse. Of course, this is all still shrouded in secrecy: “The Pentagon, even in the more transparent Obama era, has been rather testy about allowing human rights observers free access to any of the detention facilities at Bagram or the right to interview prisoners—though it has invited observers to tour its new prison.”157 Even in the Obama era, several witnesses have complained of Bush era–like torture at the hands of U.S. officials at Bagram.158 Moreover, the government eschewed the American “rich history of military ethics dating back to General George Washington.”159
And what about punishment for the enormity of the crime? What ever happened to the commanding U.S. officials who ordered war crimes committed by institutionalizing prisoner abuse? Nothing. The Obama administration hushed up Abu Ghraib photographs, gave immunity to officials, and performed a giant cover-up.160 The American presidency has shifted over the last two hundred years from giving exemplary punishment for the enormity of the crime of torture to facilitating it, then sweeping it under the rug. Obama’s record on torture is not quite as clean as his acolytes make it out to be.
The Right to Trial: Commissions Stand
President Obama voted against the Military Commissions Act of 2006 when he was a senator and while campaigning pledged in a speech at the Woodrow Wilson Center, “As President, I will close Guantanamo, reject the Military Commissions Act, and adhere to the Geneva Conventions. Our Constitution and our Uniform Code of Military Justice provide a framework for dealing with the terrorists.”161 And in 2008, it seemed as though he had the political impetus to do so: The international community hated Gitmo, the people of the United States were against Gitmo, and the Supreme Court had declared in Boumediene that the latest attempt to isolate Gitmo from judicial review was unconstitutional.
By the time Obama entered office, the detainees had been held for almost seven years without trial (the sole exception being David Hicks, who is free at this writing). Obama, however, would prove similar to his predecessor: “He was reluctant to surrender executive powers that his predecessor had claimed,” giving Gitmo and the Pink Palace court “a bipartisan imprimatur that virtually ensures they will be a fixture of American law for years to come.”162 Or in the words of former Gitmo Chief Prosecutor Col. Morris Davis, “Obama ‘has now embraced and kissed on the lips the whole Bush concept [of military commissions]. He failed to keep a single promise he made in that speech [at the Wilson Center].’ ”163
Initially, the Obama administration showed signs of a commitment to the Constitution and a willingness to wind down the Bush legal regime of rendition, indefinite detention, torture, and unfair prosecution. In his second day in office, President Obama issued three executive orders: 13491, 13492, and 13493. Executive Order 13491 set the Geneva Conventions’ Common Article 3 as the “minimum baseline” for detainee treatment and compelled all interrogations to follow the Army Field Manual, rather than the system set out in Yoo’s draconian and medieval OLC memos.164 Executive Order 13492 ordered a review of Gitmo detainees to ascertain their statuses (due for transfer, for prosecution, etc.).165 Executive Order 13493 created a task force to develop policies on disposing of the Gitmo cases.166 He also “suspended commissions proceedings indefinitely.”167 Administration officials saw this as a good opportunity to make a “clean break with Bush’s legal experiments.”168 However, it went downhill from there.
By May 2009, Obama had reversed his position: “Following months of pressure from Defense Department and National Security officials, according to three knowledgeable sources, Obama changed course and announced that his administration would resurrect the Bush-era military commissions he had vowed to oppose.”169 In his May 15th 2009 press release, Obama’s position was significantly different from the vitriolic distaste for military commissions he had previously espoused:
Military commissions have a long tradition in the United States. They are appropriate for trying enemies who violate the laws of war, provided that they are properly structured and administered. In the past, I have supported the use of military commissions as one avenue to try detainees, in addition to prosecution in Article III courts. In 2006, I voted in favor of the use of military commissions. But I objected strongly to the Military Commissions Act that was drafted by the Bush Administration and passed by Congress.170
The hypocrisy characteristic of the Obama administration had begun to show. On November 13th 2009, however, Attorney General Eric Holder announced at last that Khalid Sheikh Mohammed would be tried with half of the other 9/11 conspirators in federal district court in New York City.171
Military Commissions Act of 2009
Obama, having now flipped on the issue, set the stage for Congress to force his hand. On October 28th 2009, Congress sent its first act to the new president for the continuation of military tribunals: The Military Commissions Act of 2009, which Obama signed into law on October 28th 2009. The Act made concessions to the Supreme Court. The Act limited hearsay and coercion testimony and improved the ability of the defense to obtain witnesses and present its case.172 It also included prohibitions on double jeopardy.173 However, it still fell “far short of the requirements imposed by the Constitution and Geneva Conventions.”174 It did not bar all coercion testimony and generally “retained many of the structural flaws that had hobbled [commissions] since 2001.”175
National Defense Authorization Act for Fiscal Year 2012
The National Defense Authorization Act for Fiscal Year 2012 (2012 NDAA) was another nail in the coffin of constitutional norms. The NDAA included three provisions which are constitutionally repugnant and render the commissions system permanent. First is Section 1021, which states: “Congress affirms that the authority of the President to use all necessary and appropriate force pursuant to the Authorization for Use of Military Force includes the authority for the Armed Forces of the United States to detain covered persons . . . pending disposition under the law of war.”176 This detention, however, could be indefinite, on U.S. soil, and extends so far as to cover U.S. citizens, in even their private homes, as well as aliens—clearly a violation of constitutional due process. Section 1022 requires that foreigners, not citizens or lawful resident aliens, be held in military custody rather than civilian custody.177 Thus, they may be military prisoners subject to military jurisdiction and not subject to outside civilian jurisdiction. The 2012 NDAA included Section 1027, which prohibits using defense funds to transfer Guantanamo detainees off base.178 They are permanently there until Congress or their home country funds their transfer, or the president disposes of their cases via adjudication. Amnesty International noted, “The bill will make President Obama the first President since the red scare in the McCarthy era to sign a law to introduce indefinite detention in the US. It will keep the detention facility at Guantanamo Bay open, potentially forever.”179
All in all, the detainees at Guantanamo have been waiting more than a decade for trial. Their rights to due process, personhood, speedy trial, and fair adjudication have all fallen flat on their faces in the wake of Bush and Obama with hundreds of individuals left in uncertain and indefinite detention—a fate to which America never subjected its worst enemies before this War on Terror.
And what did America get out of all of this? Certainly not the speedy and satisfying prosecution of the 9/11 masterminds, and certainly not peace or justice: “[T]he maximum number of prisoners that the US military intends to prosecute, or has already prosecuted, is 20—or just 2.5 percent of the 779 men held at the prison since it opened in January 2002.”180 Khalid Sheikh Mohammed was transferred back to Gitmo for military trial, despite Attorney General Eric Holder’s public promises and private objections.181 A decade later we still have nothing to show for this clearly failed, irreparable experiment besides a litany of monumental civil rights violations.
One of the hallmarks of due process—the basic fairness which the Natural Law and the Constitution require the government to exercise whenever it is adverse to any person—is fidelity to rules and procedures that are generally acceptable and universally applicable. The procedures also must be in place before adversity began. The persistent efforts of the Bush administration to reject these norms has brought much woe and no justice.
* The Who, “Won’t Get Fooled Again,” recorded March 16, 1971, http://thewho.com/album/whos-next/.
* In Dirty Wars, Scahill used the example of “career jihadist commandeer” Ahmed Madobe, whom “JSOC nearly killed . . . in 2007.” Scahill, Dirty Wars, 394; ibid., 202–22. He became an American-Somali-backed warlord after being released from Ethiopian custody in 2009. Ibid., 394–95.
* Bob Woodward of the Washington Post, for example, has written an entire book on Obama’s ramping up and revamping of the Pakistani strategy he inherited from Bush. See Bob Woodward, Obama’s Wars (New York: Simon & Schuster, 2010).
* Sarah Childress, “Six Reasons the ‘Dark Side’ Still Exists Under Obama,” PBS Frontline, April 22, 2013, http://www.pbs.org/wgbh/pages/frontline/criminal-justice/six-reasons-the-dark-side-still-exists-under-obama/; Nat Hentoff, “Torture Under Obama,” Cato Institute, February 17, 2010, http://www.cato.org/publications/commentary/torture-under-obama.