The US Is Defending Not Just Its Closest Ally in Israeli Raid, but Also Approach to War

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I think there’s more to America’s defense of Israel’s attack on the Free Gaza flotilla than simply more blind support for Israel. By defending Israel’s attack, members of the US elite are also defending a problematic legal stance–one that the US has adopted in its own counterterrorist efforts.

Let’s start with this premise: the only way Israel’s attack on the flotilla was legal under international law was if it can argue that it is at war with Gaza–which also means that the only way the attack was legal was if Israel treats Gaza as a state. A number of people have made this observation, but for our purposes Craig Murray’s explanation will suffice.

Every comments thread on every internet site on the world which has discussed the Israeli naval murders, has been inundated by organised ZIonist commenters stating that the Israeli action was legal under the San Remo Manual of International Law Applicable to Armed Conflicts at Sea.

They ignore those parts of San Remo that specifically state that it is illegal to enforce a general blockade on an entire population. But even apart from that, San Remo simply does not apply.

The manual relates specifically to legal practice in time of war. With whom is Israel at war?

There is no war.

Israeli apologists have gone on to say they are in a state of armed conflict with Gaza.

Really? In that case, why do we continually hear Israeli complaints about rockets fired from Gaza into Israel? If it is the formal Israeli position that it is in a state of armed conflict with Gaza, then Gaza has every right to attack Israel with rockets.

But in fact, plainly to the whole world, the nature and frequency of Israeli complaints about rocket attacks gives evidence that Israel does not in fact believe that a situation of armed conflict exists.

Secondly, if Israel wishes to claim it is in a state of armed conflict with Gaza, then it must treat all of its Gazan prisoners as prisoners of war entitled to the protections of the Geneva Convention. If you are in a formal state of armed conflict, you cannot categorise your opponents as terrorists.

But again, it is plain for the world to see from its treatment and description of Gazan prisoners that it does not consider itself to be in a formal position of armed conflict.

Israel is seeking to pick and choose which bits of law applicable to armed conflict it applies, by accepting or not accepting it is in armed conflcit depending on the expediency of the moment.

This is the same principle that says we can’t simultaneously argue CIA can target Predator drones at people in countries we’re not at war with, while at the same time insisting that when Omar Khadr allegedly threw a grenade during hostilities it was illegal.

Yet as last week’s UN report on targeted killings makes clear, both Israel and the US (and some other countries) have tried to make similar claims as they expand the application of targeted killings, including the use of Predator drones.  The report traces the use and dubious legality of targeted killings by Israel against Palestinians to the 1990s and by Russia against Chechnyans to 1999. It’s in that tradition that our own program of targeted killing started shortly after 9/11.

The report goes on to explain why both the US and Israel might be inclined to treat their actions against terrorists as an armed conflict.

47. On the other hand, both the US and Israel have invoked the existence of an armed conflict against alleged terrorists (“non-state armed groups”).95 The appeal is obvious: the [international humanitarian law] applicable in armed conflict arguably has more permissive rules for killing than does human rights law or a State’s domestic law, and generally provides immunity to State armed forces.96 Because the law of armed conflict has fewer due process safeguards, States also see a benefit to avoiding compliance with the more onerous requirements for capture, arrest, detention or extradition of an alleged terrorist in another State. IHL is not, in fact, more permissive than human rights law because of the strict IHL requirement that lethal force be necessary. But labeling a situation as an armed conflict might also serve to expand executive power both as a matter of domestic law and in terms of public support.

48. Although the appeal of an armed conflict paradigm to address terrorism is obvious, so too is the significant potential for abuse. Internal unrest as a result of insurgency or other violence by non-state armed groups, and even terrorism, are common in many parts of the world. If States unilaterally extend the law of armed conflict to situations that are essentially matters of law enforcement that must, under international law, be dealt with under the framework of human rights, they are not only effectively declaring war against a particular group, but eviscerating key and necessary distinctions between international law frameworks that restricts States’ ability to kill arbitrarily. [my emphasis]

Israel is currently asserting its commando team is immune from laws about murder and piracy. And the reference to the appeal of an armed conflict as a rationale to expand executive power really sums up the last nine years of American history.

Where the US and Israeli preference to treat counterterrorism as armed conflict really goes astray of the law is in the definition of whom they may target.

58. In international armed conflict, combatants may be targeted at any time and any place (subject to the other requirements of IHL).108 Under the IHL applicable to noninternational armed conflict, the rules are less clear. In non-international armed conflict, there is no such thing as a “combatant.”109 Instead – as in international armed conflict – States are permitted to directly attack only civilians who “directly participate in hostilities” (DPH).110 Because there is no commonly accepted definition of DPH, it has been left open to States’ own interpretation – which States have preferred not to make public – to determine what constitutes DPH.

59. There are three key controversies over DPH. First, there is dispute over the kind of conduct that constitutes “direct participation” and makes an individual subject to attack. Second, there is disagreement over the extent to which “membership” in an organized armed group may be used as a factor in determining whether a person is directly participating in hostilities. Third, there is controversy over how long direct participation lasts.

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Ed Koch Calls Jeremy Scahill a Terrorist Supporter for Defending Children

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Onscreen, Ed Koch’s stupidest statement in this interview was when he responded to Jeremy Scahill’s question about how a goat or a horse or a children’s toy would be used as rocket to hit Israel by saying only, “that’s nonsense.” Or maybe when Koch said, in response to Scahill’s question whether Hamas’ refusal to recognize Israel justified strangling children, “Don’t tell me children!”

But his most troubling comment came during the commercial break–apparently Koch was too chicken to say it publicly.

During the break on MSNBC, Ed Koch called me a “terrorist supporter” I said, “Say it on the air.”

Update: Here’s Scahill’s post on the exchange, including a link to the list of items prohibited by the blockade, including:

  • sage
  • cardamom
  • cumin
  • coriander
  • ginger
  • nutmeg
  • chocolate
  • seeds and nuts
  • fishing rods
  • various fishing nets
  • fabric (for clothing)
  • sewing machines and spare parts
  • size A4 paper
  • writing implements
  • notebooks
  • razors
  • toys

The Impending Intelligence Games

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After the Israelis attacked a flotilla carrying humanitarian aid the other night, and particularly after the US quietly stated it would wait to learn all the details of the attack, I knew the US and Israel would claim to have had intelligence about the flotilla that would somehow “justify” violations of international law.

Sure enough, Israel told other countries that members of Hezbollah were on the flotilla.

Israeli officials are privately telling their international counterparts that they had intelligence that Hezbollah operatives were hidden among the crew and passengers of several ships. The initial plan was to board all the ships, separate the alleged terrorists, bring the flotilla to Ashdod, and then deal separately with the Gaza activists.  But the intelligence was apparently non-specific, the commandos were trigger-happy and tense (unusually so for the Israelis) and they did not anticipate that passengers and crew on one of the ships would turn against them. A cascade of failures, unclear rules of engagement and a climate of tension –> a tragedy. [emphasis Marc Ambinder’s]

And, as Max Blumenthal reports, they even tried to make–then backed off of–a claim that some flotilla participants were members of al Qaeda.

In a special meeting of the Security Cabinet it was disclosed that a group of 40 people on board the Mavi Mamara with no identification papers belong to Al Qaeda. The terrorists were equipped with bullet proof vests, night-vision goggles, and weapons.

Hey, Israel?!? You should check for those members of Hezbollah-I-mean-al-Qaeda inside those aluminum tubes over there. Right. Right over there, next to that fancy letter from Niger.

Mind you, I have absolutely zero doubt that the US, if not Israel itself, has detailed intelligence on the planning and make-up of the participants in the flotilla. The flotilla has been planned very publicly for months, flotilla members openly challenged Israel and its blockade of Gaza, and presumably planners used email and phones to plan the trip. The US government would require no warrant to wiretap all but the few American participants in the flotilla. Plus, the IDF has openly admitted it sabotaged five of the six ships in the flotilla (though I wonder whether they did this with some kind of electromagnetic pulse).

During his briefing on the operation to the Knesset’s Foreign Affairs and Defense Committee, Colonel Itzik Turgeman hinted that the IDF had sabotaged the engines of the other five ships, saying that “they took care of them.”

But that’s why the described vagueness of the intelligence, the release of very limited, edited videos by Israel, and the immediate preference on the part of both the US and Israel for an Israeli-led, um, “investigation” stinks so much. If the evidence really justified killing civilians, Israel would state as much and show the proof it assuredly does have. But thus far, at least, rather than show proof, they’re making unsubstantiated and changing claims.

Maybe they have proof, but they’re not showing it.

Then again, if I were a Turkish activist hoping to incite Israel into doing something really stupid and I had reason to assume I was being wiretapped, I might plant a vague suggestion Israel (and the US, with its trigger-happy weak intelligence analysis) might overreact to.

Which is why I expect we’re in for some months of claims and counterclaims about intelligence relating to this flotilla.

If Ever You Doubted Water-Boarding KSM Was a Bad Decision…

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George Bush is on the rubber chicken circuit in anticipation of the release of his book, A’m the Deciderer Decision Points. Which means he’s now out in public defending two of his “greatest” decisions, side-by-side:

George Bush admitted yesterday that Khalid Sheik Mohammed, the self-proclaimed mastermind of the 9/11 attacks, was waterboarded by the US, and said he would do it again “to save lives”.

“Yeah, we waterboarded Khalid Sheikh Mohammed,” the former president told a business audience in Grand Rapids, Michigan. “I’d do it again to save lives.”

[snip]

In his speech, Bush also defended the decision to go to war with Iraq in 2003. He said ousting Saddam Hussein “was the right thing to do and the world is a better place without him”.

Of course, Bush has absolutely zero proof that waterboarding KSM saved lives. Just as he can’t be sure that the world is better without Saddam, hundreds of thousands of Iraqis (and almost 5,000 American servicemen and women), with the US deep in debt, and the seeds of the same kind of abusive government–this one with close ties to Iran–in place in Iraq.

But the really telling bit about this news is that it puts the decision to waterboard KSM right there next to the decision to launch a war of choice rather than focus on beating the terrorists who attacked us. That is, it puts Bush’s decision to embrace torture right there next to what many consider one of the biggest foreign policy mistakes in history.

UN Special Rapporteur Condemns America’s Killer Drones

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One of last Friday’s big stories somewhat lost in the hustle and focus on the BP Gulf oil disaster and the holiday weekend concerned the continuing outrage of the US drone targeted assassination program. Specifically, Charlie Savage’s report at the New York Times that the United Nations Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, Philip Alston, was expected to issue a report calling on the United States to stop Central Intelligence Agency drone strikes thus “complicating the Obama administration’s growing reliance on that tactic in Pakistan”.

Today, the report is out, and Charlie Savage again brings the details in the Times:

A senior United Nations official said on Wednesday that the growing use of armed drones by the United States to kill terrorism suspects is undermining global constraints on the use of military force. He warned that the American example will lead to a chaotic world as the new weapons technology inevitably spreads.

In a 29-page report to the United Nations Human Rights Council, the official, Philip Alston,the United Nations Special Rapporteur on extrajudicial executions, called on the United States to exercise greater restraint in its use of drones in places like Pakistan and Yemen, outside the war zones in Afghanistan and Iraq. The report — the most extensive effort by the United Nations to grapple with the legal implications of armed drones — also proposed a summit of “key military powers” to clarify legal limits on such killings.

In an interview, Mr. Alston, said the United States appears to think that it is “facing a unique threat from transnational terrorist networks” that justifies its effort to put forward legal justifications that would make the rules “as flexible as possible.”

Here is Alson’s official report.

Interestingly, Alston’s report comes hot on the heels of the news the biggest get yet for the Obama drone assassination program, Al-Qaida Number Three (or at least the latest Number Three) Mustafa Abu al-Yazid. But Alston, although indicating that al-Yazid migh could be distinguished because of the direct al-Qaida status, nevertheless expressed reservations even is such situations.

For example, it criticized the United States for targeting drug lords in Afghanistan suspected of giving money to the Taliban, a policy it said was contrary to the traditional understanding of the laws of war. Similarly, it said, terrorism financiers, propagandists and other non-fighters should face criminal prosecution, not summary killing. Read more →

The National Security Strategy

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In this thread, a couple of us starting talking about word counts for the National Security Strategy. So I decided to put together a word map of the document for our fun and enlightenment. Click the image to enlarge it.

Cutting Social Security in the Name of National Security

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As a number of people have observed, the National Security Strategy Obama released last week prioritizes the economic vitality of the US as one source of security. Much of this discussion places a predictable focus on trade, technology, and education. But I was shocked by the almost mindless privileging on deficit reduction in the document.

For example, the overview paragraph that introduces the importance of our economic health puts reducing the deficit on par with education, science, energy, and health care.

At the center of our efforts is a commitment to renew our economy, which serves as the wellspring of American power. The American people are now emerging from the most devastating recession that we have faced since the Great Depression. As we continue to act to ensure that our recovery is broad and sustained, we are also laying the foundation for the long term growth of our economy and competitiveness of our citizens. The investments that we have made in recovery are a part of a broader effort that will contribute to our strength: by providing a quality education for our children; enhancing science and innovation; transforming our energy economy to power new jobs and industries; lowering the cost of health care for our people and businesses; and reducing the Federal deficit. [my emphasis]

The paragraph immediately following tries to connect all of these ideas directly with security. Yet its explanation for the importance of deficit reduction is so vague as to be meaningless.

Each of these steps will sustain America’s ability to lead in a world where economic power and individual opportunity are more diffuse. These efforts are also tied to our commitment to secure a more resilient nation. Our recovery includes rebuilding an infrastructure that will be more secure and reliable in the face of terrorist threats and natural disasters. Our focus on education and science can ensure that the breakthroughs of tomorrow take place in the United States. Our development of new sources of energy will reduce our dependence on foreign oil. Our commitment to deficit reduction will discipline us to make hard choices, and to avoid overreach. These steps complement our efforts to integrate homeland security with national security; including seamless coordination among Federal, state, and local governments to prevent, protect against, and respond to threats and natural disasters. [my emphasis]

We don’t get any better explanation of the importance of deficit reduction in the paragraphs dedicated to economic issues later in the document. The NSS first claims that deficit reduction, along with an emphasis on savings and reforming our financial system, will be all that it takes to make the US economy more export-driven–a claim that ignores a number of the reasons we’ve become less competitive internationally.

Save More And Export More: Striking a better balance at home means saving more and spending less, reforming our financial system, and reducing our long-term budget deficit. With those changes, we will see a greater emphasis on exports that we can build, produce, and sell all over the world, with the goal of doubling U.S. exports by 2014. This is ultimately an employment strategy, because higher exports will support millions of well-paying American jobs, including those that service innovative and profitable new technologies. As a part of that effort, we are reforming our export controls consistent with our national security imperatives.

And then it throws in a paragraph dedicated to deficit reduction which offers little to explain why that–rather than a range of other actions–is so central to our national security (though it does make it pretty clear this deficit reduction won’t focus on military spending).

Reduce the Deficit: We cannot grow our economy in the long term unless we put the United States back on a sustainable fiscal path. To begin this effort, the Administration has proposed a 3-year freeze in nonsecurity discretionary spending, a new fee on the largest financial services companies to recoup taxpayer losses for the Troubled Asset Relief Program (TARP), and the closing of tax loopholes and unnecessary subsidies. The Administration has created a bipartisan fiscal commission to suggest further steps for medium-term deficit reduction and will work for fiscally responsible health insurance reform that will bring down the rate of growth in health care costs, a key driver of the country’s fiscal future.

The thing is, there are a number of economically-related issues that are more closely connected with our national security yet receive inadequate attention, in some cases because doing so would conflict with the ideology of the deficit hawks.

Manufacturing: For example, there is absolutely no discussion of the role of manufacturing in national security. The NSS sees investing in science, technology, engineering, and math education as one means to keep American competitive technologically. It calls for federal investment in science research. But it neglects the way in which manufacturing turns this know-how into capacity that has always been central to US dominance. At a time when we risk losing key capacities to make our nifty war toys because of the decline in manufacturing, this silence is particularly troubling. But rebuilding our manufacturing capacity takes more than investment in basic science; it requires a concerted strategy to help the US compete with the mercantilist economies that increasingly dominate manufacturing.

Real Financial Reform: While the NSS–as the fourth blockquote above makes clear–pays lip service to reforming our financial system, it never explicitly acknowledges that this must mean more than restoring stability. It must also incent investment in productive capacity rather than bubbles. And the Administration has repeatedly stopped far short of such reforms. Indeed, the Administration has pointedly avoided doing the things that might return our economy to making things again, rather than encouraging finance as a key driver of economic growth.

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Apparently Missing Biblical Irony, Nuclear Power Israel Complains about Slingshot Attacks

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As Siun reported earlier, last night some Israeli commandos attacked some humanitarian ships bringing supplies to Gaza. A number of civilians were killed.

Since then, the IDF has released a series of videos, captioned in English, apparently attempting to spin their own raid as an attack on the poor defenseless Israelis. I found this one–in which a latter-day Israeli Goliath complains about the slingshots civilians used to defend themselves–particularly ironic.

That Iraq Withdrawal We Elected in 2008?

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Not gonna happen.

I have sent the enclosed notice to the Federal Register for publication, continuing the national emergency with respect to the stabilization of Iraq. This notice states that the national emergency with respect to the stabilization of Iraq declared in Executive Order 13303 of May 22, 2003, as modified in scope and relied upon for additional steps taken in Executive Order 13315 of August 28, 2003, Executive Order 13350 of July 29, 2004, Executive Order 13364 of November 29, 2004, and Executive Order 13438 of July 17, 2007, is to continue in effect beyond May 22, 2010.

Obstacles to the orderly reconstruction of Iraq, the restoration and maintenance of peace and security in the country, and the development of political, administrative, and economic institutions in Iraq continue to pose an unusual and extraordinary threat to the national security and foreign policy of the United States. Accordingly, I have determined that it is necessary to continue the national emergency with respect to this threat and maintain in force the measures taken to deal with that national emergency.

Love, Barack Obama.

So even as Obama asks for more money for Afghanistan, he’s officially telling Congress the  national emergency with respect to the stabilization of Iraq Iraq War isn’t going to end anytime soon, either.

The Guardian reports the same, though from the perspective of Odierno, not Obama, missing deadlines.

Update: I was too snide when I wrote this. The fatigue of watching the President’s deficit committee argue that we need to cut Social Security just as we’re about to get a $30 billion supplemental (remember, we weren’t supposed to get anymore of those?) to fight a war in Afghanistan many think we can’t win really got to me.

At one level, this appears to be fairly nondescript: it simply says that certain financial arrangements in place today will extend out past ten days from now. So it’s not an indefinite extension, it’s a bureaucratic detail.

But this language does worry me:

The Iraqi government continues to take steps to resolve debts and settle claims arising from the actions of the previous regime. Before the end of the year, my Administration will review the Iraqi government’s progress on resolving these outstanding debts and claims, as well as other relevant circumstances, in order to determine whether the prohibitions contained in Executive Order 13303 of May 22, 2003, as amended by Executive Order 13364 of November 29, 2004, on any attachment, judgment, decree, lien, execution, garnishment, or other judicial process with respect to the Development Fund for Iraq, the accounts, assets, and property held by the Central Bank of Iraq, and Iraqi petroleum-related products, should continue in effect beyond December 31, 2010, which are in addition to the sovereign immunity ordinarily provided to Iraq as a sovereign nation under otherwise applicable law. [my emphasis]

That is, it’s not just a bureaucratic extension of financial protections for Iraq past the next ten days. It’s a formal notice that Iraq will have its financial training wheels on until December, maybe, or maybe longer. It seems like it’s for the interest of Iraq, but I worry that it’s for the interest of ongoing US control over Iraq’s finances.

John Rizzo: DOD Engaged in Cyberwarfare with Limited Oversight

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I’ve done two posts on John Rizzo’s recent address to ABA’s Standing Committee on Law and National Security. But I wanted to call attention to a few more things he said in his talk.

Slightly more than halfway through his talk, he talks about how DOD gets to conduct what seem to him to be covert actions in the field of cyberwarfare without the Congressional oversight that CIA would have. (Note, this is my transcription and he’s a big mumbler, so I’m not sure of the accuracy of this transcription.)

I did want to mention–cause I find this interesting–cyberwarfare, on the issue of cyberwarfare. Again, increasing discussion there clearly is an active arena, will continue to be active. For us lawyers, certainly for the lawyers in the intelligence community, I’ve always found fascinating and personally I think it’s a key to understanding many of the legal and political complexities of so-called cyberlaw and cyberwarfare is the division between Title 10, Title 10 operations and Title 50 operations. Title 10 operations of course being undertaken by the Pentagon pursuant to its war-making authority, Title 50 operations being covert action operations conducted by CIA.

Why is that important and fascinating? Because, as many of you know being practitioners, how these cyber-operations are described will dictate how they are reviewed and approved in the executive branch, and how they will be reported to Congress, and how Congress will oversee these activities. When I say, “these activities,” I’m talking about offensive operations–computer network attacks.

This issue, this discussion, has been going on inside the executive branch for many years, actually. I mean I remember serious discussions during the Clinton Administration. So, again, this is not a post-9/11 phenomenon. Now, I’m speaking her from a CIA perspective, but I’ve always been envious of my colleagues at the Department of Defense because under the rubrik of Title 10, this rubrik of “preparing the battlefield.” They have always been able to operate with a–to my mind [?] a much greater degree of discretion and autonomy than we lawyers at CIA have been, have had to operate under, because of the various restrictions and requirements of Title 50 operations. Covert actions require Presidential Findings, fairly explicit reports to the Intelligence Oversight Committees. We have a very, our Intelligence Committees are … rigorous, rigorous and thorough in their review. I’ve never gotten the impression that the Pentagon, the military, DOD is subject to the same degree of scrutiny for their information warfare operations as CIA. I’m actually very envious of the flexibility they’ve had, but it’s critical–I mean I guess I could say interesting but critical how–I mean if there were operations that CIA was doing, they would be called covert actions, there’s no getting around that. To the extent I’ve ever understood what DOD does in this arena, they certainly sound like covert actions to me but given that I’ve had more than my hands full over the years trying to keep track of what CIA’s doing at any given time, I’ve never ventured deeply into that area. But I think it’s fascinating.

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