Obama and our Constitution

Michael Mukasy, President George Bush the Younger’s last Attorney General, in a recent Wall Street Journal op-ed described President Barack Obama’s leaked (should I say “surreptitiously released?”) white paper memo concerning presidential authority to conduct drone warfare, including against American citizens overseas.  Mukasey had this to say, in part, about the memo:

The memo mentions the president’s constitutional responsibility under Article II to defend the country, but it grounds the president’s authority to act not in the Constitution but in “the inherent right of the United States to national self-defense under international law…and the existence of an armed conflict with al-Qa’ida under international law.”

A moment’s reflection yields the insight that the US government’s powers are defined by the Constitution, not by international law, and that in any event international law is a highly elusive concept, there being no universally recognized source for it.  Yet here the Obama administration seems to prefer abandoning the Constitution altogether rather than relying on an inherent presidential power….

Because the Constitution is more than 100 years old, hard to understand, and not binding on anything, anyway.  And a law “professor” says we ought to just do away with it.  Plainly, our president buys that line, too.

In Defense of Drone Strikes

I want to expand on a couple of points from a Stratfor article by George Friedman in which he talks about the use of drones on a modern terrorist war battlefield.  Friedman ultimately finds the utility of relying on drone strikes of dubious value.  Without addressing his utility conclusion, my own conclusion is that drone strikes are a legitimate application of our national defense imperative.

Friedman suggests in a posited anti-drone argument that

What makes unmanned aerial vehicle strikes controversial is that they are used to deliberately target specific individuals…. The modern battlefield—and the ancient as well—has been marked by anonymity.  The enemy was not a distinct individual but an army, and the killing of soldiers in an enemy army did not carry with it any sense of personal culpability.  In general, no individual soldier was selected for special attention, and his death was not an act of punishment.

…the objection is that the use of unmanned aerial vehicles is not so much an act of war as an act of judgment and, as such, violates international law that requires due process for a soldier being judged and executed.

When is the judgment carried out, though?  In a conventional war, an overall judgment is carried out at the war’s outset, with the decision to enter into it, and any enemy or collection of enemies after that entry is shot on sight.  In the terror war, the same total judgment is made as that of the conventional war, differing only in its mechanics—now it’s most often a two-step process.  A secondary judgment is carried out in real time in the terror war that was subsumed into the conventional war’s original judgment: an individual is identified (including being discriminated from an innocent civilian) in real time, within that larger judgment’s framework, and the strike carried out.  But this two-step process is not materially different from the totality of judgment for the conventional war, and it differs not at all from a two-step process often explicitly carried out in a conventional war: consider the capture of a city by ground troops during which the classic house-to-house combat occurs.  The framework judgment—kill the enemy wherever you find him—was carried out at the war’s start.  Now, in the house-to-house environment, the second step is carried out: is this an enemy soldier, or is it an innocent civilian?

Friedman later says

the United States is engaged in a unique sort of war.  Al Qaeda and the allied groups and sympathetic individuals that comprise the international jihadist movement are global, dispersed and sparse.  They are not a hierarchical military organization.  Where conventional forces have divisions and battalions, the global jihadist movement consists primarily of individuals who at times group together into distinct regional franchises, small groups and cells, and frequently even these groups are scattered.

The primary unit is the individual, and the individuals—particularly the commanders—isolate themselves and make themselves as difficult to find as possible.  Given their political intentions and resources, sparse forces dispersed without regard to national boundaries use their isolation as the equivalent of technological stealth to make them survivable and able to carefully mount military operations against the enemy at unpredictable times and in unpredictable ways.

I’ll elide the violation of laws of war at which Friedman hints here and focus on the dispersal aspect.  I suggest that this is not so much a unique sort of war as much as it’s an extension of conventional war tactics carried to an extreme, albeit with a unique set of targets and goals.  The terrorists’ dispersal is simply an extension of conventional infantry tactics writ to a global scale.  Prior to the opening of an infantry assault, the attacking force often attempts to infiltrate as much as possible—through stealth—the defenders’ positions before firing the first shot.  The terror war’s terrorist simply carries this to the next logical step: instead of several infantry units, each consisting of a number of individuals doing the infiltrating, the terrorists’ small units now consists of individual terrorists doing the infiltrating—or the plotting of the attack.

In either of these cases, the drone strike is well within the limits of war: it’s a valid means of killing an enemy—here a terrorist, rather than a soldier—when and where he’s been found, and it’s a valid response to catching a terrorist in his infiltration process (at any stage, from planning it to mid-execution) and interrupting his intended assault.

Cowed by Terrorism

Apparently, terrorism works in Europe.  With Bulgaria having officially determined that Hezbollah was behind the terrorist bombing of an Israeli tour bus in Burgas on the Bulgarian Black Sea last summer, we’re getting some…interesting…responses in the rest of Europe.  These responses center on European continued hesitancy to declare Hezbollah a terrorist organization, as other nations outside of Europe (and one and a half within the EU (the UK is only willing to designate, euphemistically, the “military arm” of Hezbollah a terrorist organization) have done.  We’re getting, for instance, things like the following.

The European Union’s Catherine Ashton, High Representative of the Union for Foreign Affairs and Security Policy (!), says,

The terrorists who planned and carried out the Burgas attack must be brought to justice…the High Representative underlines the need for a reflection over the outcome of (Bulgaria’s) investigation.

She can’t say the word “Hezbollah,” and since it was only Israeli tourists and a Bulgarian (the bus driver) who died, there’s still time, and need, to “reflect” on the meaning of the murders.

EU Counter-Terrorism Coordinator Gilles de Kerchove, expanded on this reluctance:

There is no automatic listing just because you have been behind a terrorist attack…It’s not only the legal requirement that you have to take into consideration, it’s also a political assessment of the context and the timing.

It’s true enough that terrorist butchery has political overtones in the terrorists’ purposes, but responses to such murders have no politics at all involved—there are only morality and the duty of a government to protect its citizens.

Former French intelligence official Claude Moniquet adds

Calling it terrorist would limit France’s ties with Beirut and put French targets and personnel in Lebanon at risk of retaliation.  The Bulgarian report doesn’t alter this realpolitik. There were always plenty of smoking guns.

It’s important to avoid annoying terrorists, lest the latter turn their ire on us.  And there’s the standard offer of excuses for this carpet knightery.

Even the newspapers seem more interested in ducking and covering than in meaningful response.  Sylke Tempel, editor of the German magazine Internationale Politik, told the New York Times,

There’s the overall fear if we’re too noisy about this, Hezbollah might strike again, and it might not be Israeli tourists this time.

There it is again: don’t offend the terrorists; they might hurt us next.

All of this reminds me of Spain’s withdrawal from the war on al Qaeda and the Taliban in Afghanistan in direct response to a terror bombing of a Madrid railroad station.

Indeed, Europe’s reluctance to angrify Hezbollah is an old and venerable policy.  Spiegel International Online notes (the first link above),

For decades, European governments have preferred to avoid confrontation with Hezbollah as long as its terrorism was not directed at continental targets.  In spite of a 1983 Beirut bombing that killed 58 French peacekeepers and 241 American Marines, deadly attacks on Israeli and Jewish targets in Buenos Aires in 1992 and 1994 (which Argentine prosecutors pinned on the group), and its military support for the embattled Syrian regime of Bashar Assad (whom the EU has repeatedly called upon to step down), Brussels has resisted naming Hezbollah a terrorist outfit.

The problem is that this timidity does not affect only Europe.  Like paying the kidnapper’s ransom, it puts the rest of us at risk, also.  It rewards the terrorists for their actions rather than contributing to their destruction.

What’s Being Kept Hidden?—Update

In response to Senate Republicans holding up his SecDEf nominee’s confirmation yesterday, Obama released (at least part of) his answer.

Obama didn’t make any phone calls the night of the Sept 11 attacks on the US Consulate in Benghazi, Libya, the White House said in a letter to Congress released Thursday.

“During the entire attack, the president of the United States never picked up the phone to put the weight of his office in the mix,” said Senator Lindsey Graham (R, SC).

He didn’t talk to anyone in Libya, he didn’t talk to his own Secretary of State, he talked to no one in his own defense establishment—not his Secretary, not any of his generals.

Ann Althouse speculates on why he’s tried to keep all of this hidden.

I think he is ashamed. Here’s what I’ve been assuming happened: It looked like our people were overwhelmed and doomed, so there was shock, sadness, and acceptance.  But then the fight went on for 7 or 8 hours.  The White House folk decided there was nothing to do but accept the inevitable, and then they witnessed a valiant fight which they had done nothing to support.  It was always too late to help.  It was too late after one hour, then too late after 2 hours, then too late after 3 hours….  When were these people going to die already? After that was all over, how do you explain what you did?

It’s not only shameful for the man, this timidity, this defeatist attitude, if accurate, is shameful for our country.  And it’s a reason our enemies—Iran, northern Korea, the People’s Republic of China, Russia—so plainly don’t take anything our government says seriously.

What’s Being Kept Hidden?

Former Senator and Defense Secretary nominee Chuck Hagel’s confirmation is hanging in the balance.  Senate Republicans are holding up a floor vote on his confirmation until President Barack Obama is more forthcoming about his involvement—or lack—in the Benghazi debacle in which an American ambassador was murdered by terrorists.

Naturally, the Democrats are unhappy.  Senate Majority Leader Harry Reid (D, NV) said

Chuck Hagel had nothing to do with the attack on Benghazi.  There are serious consequences to this delay.

Yet, with those consequences, Obama continues to delay and to stonewall.  All he’s allowed to be released so far is a letter from his counsel, Kathryn Ruemmler, to three Republican senators averring that former Secretary of State Hillary Clinton called Libyan President Mohamed Magariaf on his behalf the night of the attack.  ABC News had this portion of Ruemmler’s letter:

This intensive response, which was directed by the President, included 13 meetings of interagency Principals and Deputies within a week of the attack and involved continuous outreach by senior administration officials to the Government of Libya, including by the President and members of his Cabinet.  As to the specific question in your February 12 letter, Secretary Clinton called Libyan President Magariaf on behalf of the President on the evening of the September 11, 2012 to coordinate additional support to protect Americans in Libya and access to the Libyan territory.  At that time, President Magariaf expressed his condemnation and condolences and pledged his government’s full cooperation.  The President spoke to President Magariaf on the evening of September 12th.

What did Obama do in this “outreach?”  What did he instruct Clinton to say to Magariaf on his behalf?  Why didn’t he make the call himself?  What did he say on the 12th?  Did he do anything else?

I have to ask: what is there in Obama’s behavior the day of the attack and that night—other than his decision to absent himself from the White House in favor of a campaign fundraising trip to Las Vegas, I mean—of which he’s so ashamed that he’s willing to blow up the confirmation of his own nominee in favor of keeping it hidden?

Update: Sorry–this should have been published over two hours ago; a software glitch prevented that.