“Wherever Law ends Tyranny begins”

John_Locke1 “Wherever Law ends Tyranny begins”

The assessment of English philosopher John Locke (1632 – 1704)  that wherever law ends tyranny begins seems to be borne out by present-day reality as concerns are mounting over the implications of the legal vacuum, weak policy guidance and lack of civilian control under which the American War on Terror  — with at least the silent , if at times awkward, consent of its NATO allies —  is conducted.

The muddled legal, institutional accountability and moral environment around this War on Terror since the  9/11 attacks on New York, have global implication far beyond the issue of the security of the US.

Some elements of the way this war is being conducted, like seemingly indiscriminate attacks by American unmanned aerial vehicles(UAVs) or drones, according to an article by Fred Branfman, prompted Philip Alston, the United Nations special representative on extrajudicial executions, to  state that “this strongly asserted but ill-defined licence to kill without accountability is not an entitlement which the USA or other states can have without doing grave damage to the rules designed to protect the right to life and prevent extrajudicial executions”.

In the same article Branfman writes that the “notion that a handful of US military and CIA officials have the right to unilaterally and secretly murder anyone they choose in any nation on earth, without even outside knowledge let alone oversight, is deeply troubling to anyone with a conscience, belief in democracy, or respect for international law”.

A UN report earlier this year stated that “some have suggested that drones as such are prohibited weapons under international humanitarian law because they cause, or have the effect of causing, necessarily indiscriminate killings of civilians, such as those in the vicinity of the targeted person”.

Not only a remote-control war

It is, however not only these remote-control attacks on funeral processions in Pakistan from as far away as 7 000 km that are problematic. Different reports quote different figures, but the US now has, according to a June report in the Washington Post Special Operations forces (SOF) “deployed in 75 countries, compared with about 60 at the beginning of last year. In addition to units that have spent years in the Philippines and Colombia, teams are operating in Yemen and elsewhere in the Middle East, Africa and Central Asia”.

It is estimated that some 13 000 SOF troops are deployed world-wide in 40% of the 192 countries that make up the United Nations.

These SOF units operate under top-secret conditions off so-called killing lists (compiled by a secret bureaucratic process) and according to an official quoted by the Washington Post the Special Operations capabilities requested by the White House go beyond unilateral strikes and include the training of local counter-terrorism forces and joint operations with them. ” In Yemen, for example we are doing al three.”

In September of this year there were also reports about the deployment of a fleet of US Predator B drones along the US border with Mexico aimed at the illegal drug trade and the cultural and linguistic threats Mexican migrants pose to the US leading to what Professor Juanita Darling of San Francisco State University calls “a feeling of increased militarisation on the border”.

Blurring of mandates

Referring to the blurring of chains of command and mandates of various instruments of state the New York Times in December last year reported: “The political consensus in support of the drone programme, its antiseptic, high-tech appeal and its secrecy have obscured just how radical it is. For the first time in history, a civilian intelligence agency is using robots to carry out a military mission, selecting people for killing in a country where the United States is not officially at war.”

According to one former intelligence official “the extraordinary power ceded to the CIA operations directorate … evoked serious concerns in the intelligence community. It allowed the directorate to collect the intelligence on potential targets in (Pakistan’s) Federally Administered Tribal Areas, interpret its own intelligence and then make lethal decisions based on that interpretation – all without any outside check on the judgments it was making, even from the CIA’s own directorate of intelligence”.

At the same time Tom Englehardt reports on his TomDispatch.com-site: “…Oh, and keep in mind that more than two-thirds of the IC’s intelligence programmes are controlled by the Pentagon, which also means control over a major chunk of the combined intelligence budget, announced at $75 billion (2 1/2 times the size it was on Sept. 10, 2001, according to Priest and Arkin), but undoubtedly far larger).

“And when it comes to the Pentagon, that’s just a start. Massive expansion in all directions has been its m.o. since 9/11.  Its soaring budget hit about $700 billion for fiscal year  2010 and is projected to hit $726 billion in fiscal year 2011.  Some experts claim, however, that the real figure may come closer to the trillion-dollar mark when all aspects of national security are factored in.  Not surprisingly, it has taken over a spectrum of State Department-controlled civilian activities, ranging from humanitarian relief and development (aka “nation-building”) to actual diplomacy.  And don’t forget its growing roles as a domestic-disaster manager and a global arms dealer, or even as a Green Revolution energy innovator. “

What about the cyber war

The legal and policy challenges the US Department of Defence (DOD) — which has created a US Cyber Command — and other national governments face in dealing with the increasing threat of cyber war was also highlighted by a panel discussion hosted by theHeritage Foundation in August this year.

It came to the conclusion that: “The United States is hamstrung in defending itself in cyberspace by a lack of policies and legal framework for waging war in the new military domain.”

The national and international laws of armed conflict that govern conventional warfare don’t adequately address issues raised about fighting a war online with digital weapons against enemies who cannot be identified, according to this panel of government and private-sector experts.panelists said.

Offensive action by the military will require policy decisions and legal authorities that have not yet been made, said Herb Lin, chief scientist on the Computer Science and Telecommunications Board at the National Academy’s National Research Council.

At present the US National Security Agency’s (NSA) “warrantless dragnet surveillance” programme, is being challenged in the Appeal Court. The case follows on reports in December of last year that the NSA has been domestically intercepting the phone calls and Internet communications of millions of ordinary Americans in what is claimed to be in violation of the privacy safeguards established by Congress and the US Constitution.

At the same time there are increasing tensions between Washington and members of the European Union over   insistence by the Americans for  access to information  on international internet transactions concluded by European citizens.

From the UK The Telegraph reports on moves that are afoot by Britain’s Home Office to revive plans that will allow security services and the police to spy on the activities of every Briton who uses a phone or the internet.

The newspaper reports that the “move was buried in the Government’s Strategic Defence and Security Review, which revealed: We will introduce a programme to preserve the ability of the security, intelligence and law enforcement agencies to obtain communication data and to intercept communications within the appropriate legal framework.

“This programme is required to keep up with changing technology and to maintain capabilities that are vital to the work these agencies do to protect the public.

“Communications data provides evidence in court to secure convictions of those engaged in activities that cause serious harm. It has played a role in every major Security Service counter-terrorism operation and in 95 per cent of all serious organised crime investigations.

“We will legislate to put in place the necessary regulations and safeguards to ensure that our response to this technology challenge is compatible with the Government’s approach to information storage and civil liberties.

Guy Herbert, general secretary of the No2ID campaign group, reportedly said: “We should not be surprised that the interests of bureaucratic empires outrank liberty.

Not the end of the list

This article but scratches the surface of the issue of the legal, policy and oversight vacuum in which present-day warfare — which, more often than not, is not on a state-on-state basis —  is developing.

Other aspects of it include:

The handling of prisoners of war:  HYPERLINK “http://harpers.org/archive/2010/10/hbc-90007739” ;  HYPERLINK “http://www.washingtonpost.com/wp-dyn/content/article/2009/05/21/AR2009052103483.html” ;  HYPERLINK “http://www.politico.com/news/stories/1010/43649.html#ixzz133KC1LAu“.

The strain it puts on civil-military relations:  HYPERLINK “http://www.worldpoliticsreview.com/articles/6774/over-thehorizon-warning-signs-in-u-s-civil-military-relations” http://www.worldpoliticsreview.com/articles/6774/over-thehorizon-warning-signs-in-u-s-civil-military-relations

To what extent the privatisation of war is creating problems in enforcing legal accountability for acts of war:  HYPERLINK “http://www.alternet.org/story/148007/” http://www.alternet.org/story/148007/

The extent to which one country passes laws to conduct war on terror impacts on other jurisdictions:  HYPERLINK “http://www.gasandoil.com/goc/company/cnm102852.htm” http://www.gasandoil.com/goc/company/cnm102852.htm

(Next week we will look at the cost and the effectiveness of the War on Terror)