ACLU Comment on Eric Holder Speech on Targeted Killing Program

FOR IMMEDIATE RELEASE
March 5, 2012
5:03 PM

CONTACT: ACLU

Josh Bell, (212) 549-2666; media@aclu.org
ACLU Comment on Eric Holder Speech on Targeted Killing Program

NEW YORK - March 5 - In a speech today at Northwestern University School of Law, Attorney General Eric Holder on national security issues and addressed the government’s targeted killing program.

“While the speech is a gesture towards additional transparency, it is ultimately a defense of the government’s chillingly broad claimed authority to conduct targeted killings of civilians, including American citizens, far from any battlefield without judicial review or public scrutiny,” said Hina Shamsi, director of the American Civil Liberties Union’s National Security Project. “Few things are as dangerous to American liberty as the proposition that the government should be able to kill citizens anywhere in the world on the basis of legal standards and evidence that are never submitted to a court, either before or after the fact. Anyone willing to trust President Obama with the power to secretly declare an American citizen an enemy of the state and order his extrajudicial killing should ask whether they would be willing to trust the next president with that dangerous power.”

The ACLU has filed a lawsuit to enforce its Freedom of Information Act lawsuit seeking information about the targeted killing program, but the Justice Department and the CIA have responded to the request by saying they can neither confirm nor deny the existence of any records.

“The government has told the courts that its targeted killing program is so secret that even its existence can’t be acknowledged, but that proposition can no longer be taken seriously. If the attorney general can discuss the targeted killing program at a law school, then the administration can surely release the legal memos it uses to justify its claimed killing authority, and also defend its legal justifications in court,” Shamsi said. “The targeted killing program raises profound legal and moral questions that should be subjected to public debate, and constitutional questions that should be considered by the judiciary.”

More information about the ACLU’s FOIA lawsuit is available at:

www.aclu.org/national-security/anwar-al-awlaki-foia-request

###

The American Civil Liberties Union (ACLU) conserves America's original civic values working in courts, legislatures and communities to defend and preserve the individual rights and liberties guaranteed to every person in the United States by the Constitution and the Bill of Rights.

ACLU Links:
http://www.aclu.org/

The Day 'Due Process' Died: Obama, Holder and the End of Rights

by Peter Van Buren

Historians of the future, if they are not imprisoned for saying so, will trace the end of America's democratic experiment to the fearful days immediately after 9/11, what Bruce Springsteen called the days of the empty sky, when frightened, small men named Bush and Cheney made the first decisions to abandon the Constitution in the name of freedom and created a new version of the security state with the Patriot Act, Guantanamo, secret prisons and sanctioned torture by the U.S. government. They proceeded carefully, making sure that lawyers in their employ sanctioned each dark act, much as kings in old Europe used the church to justify their own actions.

Those same historians will remark from exile on the irony that such horrendous policies were not only upheld by Obama, a Nobel Peace Prize winner and professor of Constitutional law, but added to until we came to the place we sadly occupy today: the Attorney General of the United States, Eric Holder, publicly stating that the American Government may murder one of its own citizens when it wishes to do so, and that the requirements of due process enshrined in the Constitution's Fifth Amendment, itself drawn from the Magna Carta that was the first reflowering of basic human rights since the Greeks, can be satisfied simply by a decision by that same president.

Yesterday will thus be remembered as the day we gave up. No more clever wordplay (enhanced interrogations, "patriot" act, targeted killing, kinetic operations) but a simple declaration that the U.S. government will kill its own citizens when it wishes to, via a secret process we, and our victims, are not allowed to know or contest.

Brevity in Our Freedom

Like most of the Bill of Rights, the Fifth Amendment to the Constitution is beautiful in its brevity and clarity. When you are saying something true, pure, clean and right, you often do not need many words: "... nor be deprived of life, liberty, or property, without due process of law."

There are no footnotes in the Fifth Amendment, no caveats, no secret memos, no exceptions for war, terrorism, mass rape, creation of concentration camps, acts of genocide, child torture or any evil. Those things are unnecessary, because in the beauty of what Lincoln offered to his audience as "a government of the people, by the people, for the people," the government would be made up of us, the purpose of government was to serve us, and the government would be beholden to us. Such a government would be incapable of killing its own citizens without care and debate and open trial.

With the excuse all tyrants proclaim, protecting the nation, on or about September 30, 2011 a U.S. drone fired a missile in Yemen and killed American Citizen Anwar al Awlaki, born in the United States and tragically devoted to al Qaeda. About a week later, the U.S. murdered al Awaki's 16 year old son. The U.S. had shot at the elder al Awlaki before, on May 7, 2011 under Obama's orders, and under the Bush administration. Before the U.S. government killed his son, attorneys for al Awlaki's father tried to persuade a U.S. District Court to issue an injunction preventing the government killing of al Awlaki. A judge dismissed the case, ruling the father did not have standing to sue. This was the first time in our nation's history that a father sought to sue to prevent the government from extra-legally killing his son. The judge in the case surrendered to his post-9/11 fear and wrote that it was up to the elected branches of government, not the courts, to determine whether the United States has the authority to murder its own citizens by decree.

Fear Shaped by Lies to Compel Compliance

In his speech, Attorney General Holder said things no honest man would ever believe would be said by the highest law officer in the United States.

Holder said "that a careful and thorough executive branch review of the facts in a case amounts to 'due process' and that the Constitution's Fifth Amendment protection against depriving a citizen of his or her life without due process of law does not mandate a 'judicial process.'"

Holder thus also declaimed that the victim also has no right to a defense, no right to speak on his behalf, no right to examine and refute the evidence against him and no right even to know his life will be taken under the decision of a few men in Washington. Indeed, Holder made clear that the government's decision to kill overshadowed the right to self-defense in saying "An individual's interest in making sure that the government does not target him erroneously could not be more significant. Yet it is imperative for the government to counter threats posed by senior operational leaders of al Qaeda, and to protect the innocent people whose lives could be lost in their attacks."

Holder said he rejected any attempt to label such operations assassinations, invoking the same airbrush of lawfulness that fueled the Inquisition, the Salem Witch Trials and the Holocaust. "Assassinations are unlawful killings. The U.S. government's use of lethal force in self-defense against a leader of al Qaeda or an associated force who presents an imminent threat of violent attack would not be unlawful."

Sluts All

So while the popular media remembers yesterday as the day Rush apologized for calling someone a slut and Republican candidates ignored the wave of history to carp about birth control, historians will look back on March 5, 2012 as the day America gave up on its experiment with unalienable rights, rights that are natural, not given, rights independent of governments, what our Declaration explained to an unsure forming nation as "Life, Liberty and the pursuit of Happiness. That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed."

And that is the saddest part of a very sad day: the majority of Americans -- the consent of the governed -- seemingly do not care what Holder said, and are even now bleating on internet forums and likely in comments below to this article about the need to kill more terrorists, adding terrified, empty justifications to Holder's clever Newspeak. We did not have our freedom taken from us, we gave it away.

© 2012 Peter Van Buren
http://www.wemeantwell.com/

Peter Van Buren spent a year in Iraq as a State Department Foreign Service Officer serving as Team Leader for two Provincial Reconstruction Teams (PRTs). Now in Washington, he writes about Iraq and the Middle East at his blog, We Meant Well. His new book is We Meant Well: How I Helped Lose the Battle for the Hearts and Minds of the Iraqi People (The American Empire Project, Metropolitan Books).

Attorney General Holder Says Murder Is Legal

By leading anti-war activist David Swanson, author of Day Break and War Is A Lie, who runs the websites DavidSwanson.org and WarIsACrime.org (formerly AfterDowningStreet.org)

Attorney General Eric Holder on Monday explained why it’s legal to murder people — not to execute prisoners convicted of capital crimes, not to shoot someone in self-defense, not to fight on a battlefield in a war that is somehow legalized, but to target and kill an individual sitting on his sofa, with no charges, no arrest, no trial, no approval from a court, no approval from a legislature, no approval from we the people, and in fact no sharing of information with any institutions that are not the president. Holder’s speech approached his topic in a round about manner:

“Since this country’s earliest days, the American people have risen to this challenge – and all that it demands. But, as we have seen – and as President John F. Kennedy may have described best – ‘In the long history of the world, only a few generations have been granted the role of defending freedom in its hour of maximum danger.’”

Holder quotes that and then immediately rejects it, claiming that our generation too should act as if it is in such a moment, even if it isn’t, a moment that Holder’s position suggests may last forever:

“Half a century has passed since those words were spoken, but our nation today confronts grave national security threats that demand our constant attention and steadfast commitment. It is clear that, once again, we have reached an ‘hour of danger.’

“We are a nation at war. And, in this war, we face a nimble and determined enemy that cannot be underestimated.”

So, if I were to estimate that Al Qaeda barely exists and is no serious threat to the Homeland formerly known as the United States, I would not be underestimating it? If I were to point out that no member of that horrifying outfit has been killed in Afghanistan this year, that fact would not contribute to an unacceptable underestimation? What fun it is to fight the most glorious of wars in the hour of maximum danger against an enemy so pitiful that it literally cannot be underestimated.

If the people of Iraq and Afghanistan hadn’t risen up and defeated the trillion-dollar U.S. military with some homemade bombs and cell phones, and were Iran not threatening to fight back if attacked, this might be all fun and games. Except that Holder isn’t talking about those wars that still sort of look like wars. He’s talking about a war paralleling the Soviet Threat, a war that is everywhere all the time, a war that encompasses the murder of anybody anywhere as an “act of war,” even if there’s nothing warlike about the victim or the situation other than the fact that we are mudering him or her.

“I know that – more than a decade after the September 11th attacks; and despite our recent national security successes, including the operation that brought to justice Osama bin Laden last year – there are people currently plotting to murder Americans, who reside in distant countries as well as within our own borders. Disrupting and preventing these plots – and using every available and appropriate tool to keep the American people safe – has been, and will remain, this Administration’s top priority.”

Osama bin Laden was murdered. No attempt was made to capture him. You can defend that murder, but to call it “bringing to justice” and to get away with that characterization is to win the argument before you’ve begun it. This speech was advertised as a legal defense of such murders, and such a defense can hardly begin and end with equating murder with justice.

Nor can promising not to spy on U.S. citizens without proper procedures satisfy concerns with the claiming of power to kill people, including U.S. citizens. Here’s Holder:

“Let me give you an example. Under section 702 of the Foreign Intelligence Surveillance Act, the Attorney General and the Director of National Intelligence may authorize annually, with the approval of the Foreign Intelligence Surveillance Court, collection directed at identified categories of foreign intelligence targets, without the need for a court order for each individual subject. This ensures that the government has the flexibility and agility it needs to identify and to respond to terrorist and other foreign threats to our security. But the government may not use this authority intentionally to target a U.S. person, here or abroad, or anyone known to be in the United States.”

Nor can promising to imprison people without a fair trial justify murdering people. But Holder does not do that. He promises kangaroo courts:

“Much has been made of the distinction between our federal civilian courts and revised military commissions. The reality is that both incorporate fundamental due process and other protections that are essential to the effective administration of justice – and we should not deprive ourselves of any tool in our fight against al Qaeda.”

Even though al Qaeda cannot be underestimated! Most legal obeservers do not take this seriously for a minute. Here’s 2008 presidential candidate Barack Obama: “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 … Our Constitution works. We will again set an example for the world that the law is not subject to the whims of stubborn rulers, and that justice is not arbitrary.” Go Team!

Holder then explains, sensibly enough, why non-military courts work just fine (unless an extreme record of nearly 100% convictions worries you):

“Simply put, since 9/11, hundreds of individuals have been convicted of terrorism or terrorism-related offenses in Article III courts and are now serving long sentences in federal prison. Not one has ever escaped custody. No judicial district has suffered any kind of retaliatory attack.”

But he returns immediately to defending courts that lack basic protections, claims those protections have now been put in place, and asserts that military commissions have been successfully reformed. Among those who have not been convinced is the former chief prosecutor of the military commissions at Guantanamo, Col. Morris Davis who said in November: “a decision to use both legal settings is a mistake. It will establish a dangerous legal double standard that gives some detainees superior rights and protections, and relegates others to the inferior rights and protections of military commissions. This will only perpetuate the perception that Guantanamo and justice are mutually exclusive.” Of course the question of how bad military commissions are also does nothing to advance a case for legal murder.

Holder turns next to the presidential power to imprison people that was signed into law on New Year’s Eve as part of the National “Defense” Authorization Act:

“This Administration has worked in other areas as well to ensure that counterterrorism professionals have the flexibility that they need to fulfill their critical responsibilities without diverging from our laws and our values. Last week brought the most recent step, when the President issued procedures under the National Defense Authorization Act. This legislation, which Congress passed in December, mandated that a narrow category of al Qaeda terrorist suspects be placed in temporary military custody.”

This legislation did nothing of the sort. For one thing, Obama unconstitutionally altered it in a signing statement as it applied to a huge prison full of largely non-al Qaeda prisoners in Afghanistan. In addition, there has been quite a bit of discussion of the power this bill creates to imprison U.S. citizens. The State of Virginia has forbidden state employees from assisting with that. Senator Diane Feinstein has introduced a bill to undo it. And, despite tremendous, often willful, confusion, the history is clear that Obama insisted on the power to imprison U.S. citizens and to do so outside of the military.

Three quarters of the way through a speech on the legality of murdering people, Holder begins to approach that touchy topic. Here is what he says:

“Now, I realize I have gone into considerable detail about tools we use to identify suspected terrorists and to bring captured terrorists to justice. It is preferable to capture suspected terrorists where feasible – among other reasons, so that we can gather valuable intelligence from them – but we must also recognize that there are instances where our government has the clear authority – and, I would argue, the responsibility – to defend the United States through the appropriate and lawful use of lethal force.”

By “government” Holder means the president, whether President Obama or President Romney or President Santorum or any man or woman who later becomes president, and nobody else. That one person alone is to decide what is appropriate and lawful and feasible. If the Vice President thinks it is feasible to capture somene, too bad for him. He should have gotten a better job if he wanted to be a decider. If the Chief Justice of the Supreme Court thinks preaching against the United States is not a capital offense, tough tamales. He shouldn’t dress in his bathrobe if he wants to be taken seriously. If the United States Congress objects that the president’s “surgical strikes” tend to kill too many random men, women, and children, well they know what they can do: Run for president! If the United Nations special rapporteur on extrajudicial killings has objections, well — Isn’t that SPECIAL? And the American people? They can shut up or vote for a racist buffoon from the bad party. Holder continues:

“This principle has long been established under both U.S. and international law. In response to the attacks perpetrated – and the continuing threat posed – by al Qaeda, the Taliban, and associated forces, Congress has authorized the President to use all necessary and appropriate force against those groups. Because the United States is in an armed conflict, we are authorized to take action against enemy belligerents under international law. The Constitution empowers the President to protect the nation from any imminent threat of violent attack. And international law recognizes the inherent right of national self-defense. None of this is changed by the fact that we are not in a conventional war.”

In reality, the 2001 authorization to use military force violates the Kellogg-Briand Pact, the UN Charter, and the U.S. Constitution. It dates to only 10 years ago. And it is already getting old, as it is becoming harder and harder to accuse people of involvement in the attacks of September 11, 2001. No international law recognizes secret global war without limitation in time or space. There is no long established tradition of this madness. There has never been any type of violence that somebody wouldn’t call “defensive,” but the traditional right to national military defense applies only to nations being attacked by other nations, and not in a mystical or ideological sense, but actually attacked in the geographic area formerly known as the nation. Holder says that’s old hat:

“Our legal authority is not limited to the battlefields in Afghanistan. Indeed, neither Congress nor our federal courts has limited the geographic scope of our ability to use force to the current conflict in Afghanistan. We are at war with a stateless enemy, prone to shifting operations from country to country. Over the last three years alone, al Qaeda and its associates have directed several attacks – fortunately, unsuccessful – against us from countries other than Afghanistan. Our government has both a responsibility and a right to protect this nation and its people from such threats.”

Several attacks? Against the United States? In the last three years? By al Qaeda and its associates? If Holder had been willing to take any questions after tossing out so many topics, someone might have asked for documentation of this. And if people, as opposed to media employees, had been allowed to ask questions, someone might have inquired how whatever actions Holder described were war rather than crime. If war, then they ought to be legal. Holder just said that attacks are legal if you’re at war. But he also said he only wanted to kill people if they couldn’t be captured, and he prefaced this with claims that everybody captured gets a fair trial. That would seem to suggest a crime for which they might be tried. But then why not try them for the crime in absentia and build pressure for their capture and extradition? Why not at least state what the crime is, even after murdering them? Why not at least state which murdered people were criminals and which just happened to be in the wrong place, unaware that they happened to be walking through a war?

Holder goes on to explain that the president will only murder someone in a foreign country if he’s decided that that country won’t do it for him. This, Holder says, constitutes “respect for another nation’s sovereignty.”

Moreover, says Holder, we murdered important Japanese officers during World War II. Of course, the United States was at war with Japan at the time, and Congress had declared that war. The United States also committed numerous hideous crimes during that war, including the lawless imprisonment of Japanese-Americans that created the laws Holder tossed out during the first part of his speech. Holder explains that murder is not assassination when the president does it, because he only murders people he declares to constitute an imminent threat:

“Some have called such operations ‘assassinations.’ They are not, and the use of that loaded term is misplaced. Assassinations are unlawful killings. Here, for the reasons I have given, the U.S. government’s use of lethal force in self defense against a leader of al Qaeda or an associated force who presents an imminent threat of violent attack would not be unlawful — and therefore would not violate the Executive Order banning assassination or criminal statutes.”

But Obama has not so much as claimed that each person he killed constituted an imminent threat, much less convinced any independent body (sorry, Eric, you don’t count) of this.

I think the speech could have ended there. But many in the United States believe such flimsy justifications for presidential killings only fall apart when U.S. citizens are the victims. So, Holder goes on to argue that U.S. citizens are fair game. The protest of this outrage, were Obama a Republican, is one for the record books in some alternative universe!

“Now, it is an unfortunate but undeniable fact that some of the threats we face come from a small number of United States citizens who have decided to commit violent attacks against their own country from abroad. Based on generations-old legal principles and Supreme Court decisions handed down during World War II, as well as during this current conflict, it’s clear that United States citizenship alone does not make such individuals immune from being targeted. But it does mean that the government must take into account all relevant constitutional considerations with respect to United States citizens – even those who are leading efforts to kill innocent Americans. Of these, the most relevant is the Fifth Amendment’s Due Process Clause, which says that the government may not deprive a citizen of his or her life without due process of law.

“The Supreme Court has made clear that the Due Process Clause does not impose one-size-fits-all requirements, but instead mandates procedural safeguards that depend on specific circumstances. In cases arising under the Due Process Clause – including in a case involving a U.S. citizen captured in the conflict against al Qaeda – the Court has applied a balancing approach, weighing the private interest that will be affected against the interest the government is trying to protect, and the burdens the government would face in providing additional process. Where national security operations are at stake, due process takes into account the realities of combat. . . .

“Let me be clear: an operation using lethal force in a foreign country, targeted against a U.S. citizen who is a senior operational leader of al Qaeda or associated forces, and who is actively engaged in planning to kill Americans, would be lawful at least in the following circumstances: First, the U.S. government has determined, after a thorough and careful review, that the individual poses an imminent threat of violent attack against the United States; second, capture is not feasible; and third, the operation would be conducted in a manner consistent with applicable law of war principles.”

How are we supposed to know that Awlaki was a senior opeational leader of al Qaeda? And his teenage son? Was he that too? By “government” Holder means Obama. Obama determined these things.

“The evaluation of whether an individual presents an ‘imminent threat’ incorporates considerations of the relevant window of opportunity to act, the possible harm that missing the window would cause to civilians, and the likelihood of heading off future disastrous attacks against the United States. As we learned on 9/11, al Qaeda has demonstrated the ability to strike with little or no notice – and to cause devastating casualties. Its leaders are continually planning attacks against the United States, and they do not behave like a traditional military – wearing uniforms, carrying arms openly, or massing forces in preparation for an attack. Given these facts, the Constitution does not require the President to delay action until some theoretical end-stage of planning – when the precise time, place, and manner of an attack become clear. Such a requirement would create an unacceptably high risk that our efforts would fail, and that Americans would be killed.”

The Constitution doesn’t describe this sort of madness at all, so how could it possibly include such a requirement? The appeal to “defensive war” cited by Holder above itself requires more than awaiting the moment an attack becomes clear. It requires awaiting an actual attack. Law enforcement does not require that. Diplomacy does not require that. Ceasing to occupy, bomb, and pillage people’s countries, motivating hostile terrorism, doesn’t require that. But defensive war does.

“Some have argued that the President is required to get permission from a federal court before taking action against a United States citizen who is a senior operational leader of al Qaeda or associated forces. This is simply not accurate. ‘Due process’ and ‘judicial process’ are not one and the same, particularly when it comes to national security. The Constitution guarantees due process, not judicial process.”

The president alone can give you due process without ever explaining it to anybody else. Who knew?

“That is not to say that the Executive Branch has – or should ever have – the ability to target any such individuals without robust oversight. Which is why, in keeping with the law and our constitutional system of checks and balances, the Executive Branch regularly informs the appropriate members of Congress about our counterterrorism activities, including the legal framework, and would of course follow the same practice where lethal force is used against United States citizens.”

Why “would”? This is not theoretical. Informing a handful of Congress members, and no doubt forbidding them to repeat what they are told, does not create Congressional oversight. It just creates a Bush-era excuse for lawlessness.

Holder planned to take no questions following his remarks. I wonder why.

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The 0% Doctrine: Obama Breaks New Ground When It Comes to War

by Tom Engelhardt

When I was young, the Philadelphia Bulletin ran cartoon ads that usually featured a man in trouble -- dangling by his fingers, say, from an outdoor clock. There would always be people all around him, but far too engrossed in the daily paper to notice. The tagline was: “In Philadelphia, nearly everybody reads the Bulletin.”

Those ads came to mind recently when President Obama commented forcefully on war, American-style, in ways that were remarkably radical. Although he was trying to ward off a threatened Israeli preemptive air strike against Iran, his comments should have shocked Americans -- but just about nobody noticed.

I don’t mean, of course, that nobody noticed the president’s statements. Quite the contrary: they were headlined, chewed over in the press and by pundits. Mitt Romney, Rick Santorum, and Newt Gingrich attacked them. Fox News highlighted their restraint. (“Obama calls for containing Iran, says ‘too much loose talk of war.’”) The Huffington Post highlighted the support for Israel they represented. (“Obama Defends Policies Toward Israel, Fends Off Partisan Critiques.”) Israeli Prime Minister Netanyahu pushed back against them in a potentially deadly U.S.-Israeli dance that might bring new chaos to the Middle East. But somehow, amid all the headlines, commentary, and analysis, few seemed to notice just what had really changed in our world.

The president had offered a new definition of “aggression” against this country and a new war doctrine to go with it. He would, he insisted, take the U.S. to war not to stop another nation from attacking us or even threatening to do so, but simply to stop it from building a nuclear weapon -- and he would act even if that country were incapable of targeting the United States. That should have been news.

Consider the most startling of his statements: just before the arrival of Israeli Prime Minister Benjamin Netanyahu in Washington, the president gave a 45-minute Oval Office interview to the Atlantic’s Jeffrey Goldberg. A prominent pro-Israeli writer, Goldberg had produced an article in the September issue of that magazine headlined “The Point of No Return.” In it, based on interviews with "roughly 40 current and past Israeli decision makers about a military strike," he had given an Israeli air attack on Iran a 50% chance of happening by this July. From the recent interview, here are Obama’s key lines:

“I think that the Israeli government recognizes that, as president of the United States, I don't bluff. I also don't, as a matter of sound policy, go around advertising exactly what our intentions are. But I think both the Iranian and the Israeli governments recognize that when the United States says it is unacceptable for Iran to have a nuclear weapon, we mean what we say.”

Later, he added this chilling note: “I think it's fair to say that the last three years, I've shown myself pretty clearly willing, when I believe it is in the core national interest of the United States, to direct military actions, even when they entail enormous risks.”

The next day, in a speech meant to stop “loose talk about war” in front of a powerful pro-Israeli lobbying outfit, the American Israel Public Affairs Committee (AIPAC), the president offered an even stronger formula, worth quoting at length. Speaking of seeing the consequences of his decisions to use force “in the eyes of those I meet who’ve come back gravely wounded,” he said:

“And for this reason, as part of my solemn obligation to the American people, I will only use force when the time and circumstances demand it... We all prefer to resolve this issue diplomatically. Having said that, Iran’s leaders should have no doubt about the resolve of the United States -- just as they should not doubt Israel’s sovereign right to make its own decisions about what is required to meet its security needs. I have said that when it comes to preventing Iran from obtaining a nuclear weapon, I will take no options off the table, and I mean what I say. That includes all elements of American power... and, yes, a military effort to be prepared for any contingency.

“Iran’s leaders should understand that I do not have a policy of containment; I have a policy to prevent Iran from obtaining a nuclear weapon. And as I have made clear time and again during the course of my presidency, I will not hesitate to use force when it is necessary to defend the United States and its interests.”

An American president couldn’t come closer to saying that, should American intelligence conclude the Iranians were building a nuclear weapon, we would attack. The next day, again addressing an AIPAC audience, Secretary of Defense Leon Panetta set the president’s commitment in stone: “No greater threat exists to Israel, to the entire region, and indeed to the United States, than a nuclear-armed Iran... Military action is the last alternative if all else fails, but make no mistake: When all else fails, we will act.”

The Power of Precedents

To understand what’s truly new here, it’s necessary to back up a few years. After all, precedent is a powerful thing and these statements do have a single precedent in the atomic age (though not one the president would profess to admire): the Bush administration’s 2003 invasion of Iraq. After all, one clearly stated reason for the invasion was Saddam Hussein’s supposed nuclear program as well as one to produce biological and chemical weapons of mass destruction (WMD).

In a series of speeches starting in August 2002, President George W. Bush publicly accused the Iraqi dictator of having an active nuclear program. His vice president hit the news and public affairs talk show circuit with a set of similar accusations, and his secretary of state spoke of the danger of mushroom clouds rising over American cities. (“We do know that [Saddam] is actively pursuing a nuclear weapon... [W]e don't want the smoking gun to be a mushroom cloud.”)

At the same time, the Bush administration made an effort -- now long forgotten -- to convince Congress that the United States was in actual danger of an Iraqi WMD attack, possibly from anthrax, in the immediate future. President Bush suggested publicly that, with unmanned aerial vehicles (drones), Saddam might have the ability to spray East Coast cities with chemical or biological weapons. And Congress was given fear-inducing classified private briefings on this.

Democratic Senator Bill Nelson of Florida, for example, claimed that he voted for the administration's resolution authorizing force in Iraq because "I was told not only that [Saddam had weapons of mass destruction] and that he had the means to deliver them through unmanned aerial vehicles, but that he had the capability of transporting those UAVs outside of Iraq and threatening the homeland here in America, specifically by putting them on ships off the eastern seaboard."

Driving the need to produce evidence, however fantastic or fabricated, of a possible threat to the U.S. was a radical new twist on war-making 101. In the days after 9/11, Vice President Dick Cheney proposed that even a 1% chance of an attack on the United States, especially involving weapons of mass destruction, must be dealt with as if it were a certainty. Journalist Ron Suskind dubbed it “the one percent doctrine.” It may have been the rashest formula for "preventive" or "aggressive" war offered in the modern era.

Of course, the fact that Saddam’s Iraq had no nuclear program, no biological or chemical weapons, no functioning drones, and no way of reaching the East Coast of the United States proved strike three for critics of the Bush administration. Missed was what was truly new in the invasion: not just the 1% doctrine itself, but the idea -- a first on planet Earth -- of going to war over the possibility that another country might be in possession of nuclear or other weapons of mass destruction.

Until then, such a concept hadn’t been in the strategic vocabulary. Quite the opposite: in the Cold War years, nuclear weapons were thought of as “deterrence” or, in the case of the two massively nuclear-armed superpowers of that era, “mutually assured destruction” (with its fabulously grim acronym MAD). Those weapons, that is, were considered guarantors, however counterintuitively, against an outbreak of war. Their possession was a kind of grisly assurance that your opponent wouldn’t attack you, lest you both be destroyed.

In that spirit, between the dropping of atomic bombs on the Japanese cities of Hiroshima and Nagasaki in August 1945 and the Iraqi invasion of March 2003, seven countries -- the Soviet Union, England, France, China, Israel (though its large nuclear arsenal remains unacknowledged), India, and Pakistan -- all went nuclear without anybody suggesting that they be attacked simply for possessing such weapons. An eighth country -- white-ruled South Africa -- actually assembled six nuclear weapons, and later became the only country to de-nuclearize itself. South Korea, Taiwan, Argentina, and Brazil all had incipient nuclear programs, though none produced weapons. Japan is today considered to be at a point the Iranians have not yet reached: “breakout capacity,” or the ability to build a nuclear weapon relatively quickly if a decision to do so were made. In 2006, North Korea set off its first nuclear test and, within years, had become the ninth active nuclear power.

In other words, in 2003, the idea that the possession of nuclear weapons or simply of an "active" nuclear program that might one day produce such weapons was a casus belli represented something new. And when it became clear that Saddam had no nuclear program, no weapons of mass destruction at all, that explanation for American war-making, for what Jonathan Schell once dubbed “disarmament wars” -- so visibly fraudulent -- seemed to disappear into the dustbin of history.

War and the Presidential “I”

Until now, that is.

Whether he meant to or not, in his latest version of Iran war policy President Obama has built on the Bush precedent. His represents, however, an even more extreme version, which should perhaps be labeled the 0% Doctrine. In holding off an Israeli strike that may itself be nothing but a bluff, he has defined a future Iranian decision to build a nuclear weapon as a new form of aggression against the United States. We would, as the president explained to Jeffrey Goldberg, be committing our military power against Iran not to prevent an attack on the U.S. itself, but a nuclear arms race in the Middle East.

And by the way, note that he didn’t say, “We don’t bluff.” His formulation was: “I don’t bluff.” And that “I” should not be ignored. The Bush administration promoted a cult of presidential power, of (as they called it at the time) a “unitary executive.” No one in the White House uses such a term these days, any more than they use the term “Global War on Terror,” but if both terms have disappeared, the phenomena they named have only intensified.

The Global War on Terror, with its burgeoning secret military, the elite special operations forces, and its growing drone air force, controlled in part by the CIA, should be thought of as the president’s private war. In addition, as legal scholar Jonathan Turley wrote recently, when it comes to drone assassinations (or “targeted killings” as they are now more politely known), Attorney General Eric Holder has just claimed for the president the “authority to kill any American if he unilaterally determines them to be a threat to the nation.” In doing so, added Turley, “Obama has replaced the constitutional protections afforded to citizens with a ‘trust me’ pledge.” With terror in its crosshairs, war, in other words, is increasingly becoming the president’s private preserve and strikes on the enemy, however defined, a matter of his own private judgment.

It is no longer a matter of “we,” but of a presidential “I” when it comes to unleashing attacks in what has become a global free fire zone for those drones and special ops forces. War, in other words, is increasingly lodged in the Oval Office and a commander-in-chief executive. As the Libyan intervention suggested, like the American people, Congress is, at best, an afterthought -- even though this Congress would rubber-stamp a presidential act of war against Iran without a second thought.

The irony is that the president has propounded a war-making policy of unprecedented extremity at a moment when there is no evidence that the Iranians are pursuing a bomb -- not yet at least. The “supreme leader” of their theocratic state has termed the possession of nuclear weapons “a grave sin” and U.S. national intelligence estimates have repeatedly concluded that the Iranians are not, in fact, moving to build nuclear weapons. If, however -- and it’s a giant if -- Iran actually got the bomb, if a 10th country joined the nuclear club (with others to follow), it would be bad news, and the world would be a worse place for it, but not necessarily that greatly changed.

What could change the world in a radical way, however, is the 0% doctrine -- and the trend more generally to make war the personal prerogative of an American president, while ceding to the U.S. military what was once the province and power of diplomacy.

© 2012 TomDispatch.com
http://www.tomdispatch.com/post/175514/tomgram%3A_engelhardt%2C_war_as_t...

Tom Engelhardt, co-founder of the American Empire Project, runs the Nation Institute's TomDispatch.com. His latest book is the The United States of Fear (Haymarket Books). Previous books include The End of Victory Culture: a History of the Cold War and Beyond, The American Way of War: How Bush's Wars Became Obama's, as well as of a novel, The Last Days of Publishing. His most recent book is (Haymarket Books.)

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