Wednesday, November 28, 2012

Moves to codify US drone policy

The New York Times 24 November 2012 reports that with more than 300 drone strikes and some 2,500 people killed by the Central Intelligence Agency and the military since President Obama first took office, the administration is now pushing to make the rules formal and resolve internal uncertainty and disagreement about exactly when lethal action is justified.

NYT  reports:

Mr. Obama and his advisers are still debating whether remote-control killing should be a measure of last resort against imminent threats to the United States, or a more flexible tool, available to help allied governments attack their enemies or to prevent militants from controlling territory.

Though publicly the administration presents a united front on the use of drones, behind the scenes there is longstanding tension. The Defense Department and the C.I.A. continue to press for greater latitude to carry out strikes; Justice Department and State Department officials, and the president’s counterterrorism adviser, John O. Brennan, have argued for restraint, officials involved in the discussions say.

More broadly, the administration’s legal reasoning has not persuaded many other countries that the strikes are acceptable under international law. For years before the Sept. 11, 2001, attacks, the United States routinely condemned targeted killings of suspected terrorists by Israel, and most countries still object to such measures.

But since the first targeted killing by the United States in 2002, two administrations have taken the position that the United States is at war with Al Qaeda and its allies and can legally defend itself by striking its enemies wherever they are found.

Read the full article here.

My thanks to Isabelle Roe for drawing this item to my attention.

Monday, November 26, 2012

Richard Broinowski on Iraq and the War Powers

Letter to the editor of The Canberra Times by IWIG Member Richard Broinowski, published yesterday Sunday 25 November:

I REFER to Paul Malone's article of November 18 disputing John Howard's claim that his decision to invade Iraq had strong community support. It had nothing of the sort. The majority of Australians who expressed any opinion were strongly opposed.

On August 16 this year, a group of citizens led by Malcolm Fraser launched an appeal in Parliament House to hold an inquiry into why Australia went to war in Iraq. The appeal was dismissed by Prime Minister Gillard and Defence Minister Smith as old hat, not to be taken seriously. ''Lessons,'' they asserted, ''had been learnt.''

But no lessons have been learnt, and our urgency in getting to the bottom of what happened in 2003 is driven by the realisation it could easily happen again: the prime minister of the day could without consulting Parliament commit Australian forces to support an American military action - over Iran, Syria, over territorial disputes in the South China Sea, or somewhere less predictable.

We need an inquiry to raise awareness of this danger. An inquiry should logically lead to revision of the war powers in the constitution so that thorough parliamentary debate takes place first.

Richard Broinowski, Paddington, NSW

See the original here - third letter down on the web page.

Tuesday, November 20, 2012

War Powers of President and Congress

Guest post by Isabelle Roe

Jules Lobel from the University of Pittsburgh's School of Law writes a longform article: Conflicts between the Commander in Chief and Congress: Concurrent Power Over the Conduct of War.

The abstract reads:

The Bush Administration argues that the Commander in Chief has exclusive power to decide what military tactics to use to defeat a wartime enemy. The Administration's constitutional position that Congress may not permissibly interfere with these Executive Commander in Chief powers has been heavily criticized, particularly with respect to the Executive power to interrogate prisoners or engage in warrantless wiretapping on American citizens and its argument that Congress cannot limit the Iraq war. Yet, many critics concur in the Administration's starting point - that the President has exclusive authority over battlefield operations.

This article challenges that assumption. It argues that Congress and the President have concurrent power to conduct warfare that has been authorized by Congress, with Congress maintaining the ultimate authority to decide the methods, strategies and tactics by which the United States will wage war, if it chooses to exercise that authority. The President can direct and manage military campaigns in the absence of congressional regulation and restrictions, but the only Commander in Chief power that Congress cannot override is the President's power to command, to be, in Alexander Hamilton's words, the nation's "first general and Admiral." The understanding of concurrent power set forth in this article argues that the two branches power over the conduct of authorized warfare is divided as a practical matter by timing, not subject matter, with the President having the power of initiative over the theatre of war, and Congress having a more deliberative, reflective power, allowing it to check and limit Executive initiative both before and after the Executive acts.

The article is available for download to PDF here.

Rachel Maddow’s “Drift”

Guest post by Isabelle Roe

Paul Barratt has written the introduction to the Australian edition of Rachel Maddow's Drift: The Unmooring of American Military Power. Here is a review, published in the online journal Slate.

As a member of Congress, Cheney insisted that “Iran-Contra was no crime,” because nothing in the Constitution or anywhere else in America “could constrain a president from waging any war he wanted, however he wanted.”

Read the review here.