NC: Just driving in this morning I was listening to NPR news. The program opened by announcing, very excitedly, that the drone industry is exploding so fast that colleges are trying to catch up and opening new programs in the engineering schools and so on, and teaching drone technology because that’s what students are dying to study because of the fantastic number of jobs going on.
And it’s true. If you look at the public reports, you can imagine what the secret reports are. It’s been known for a couple of years, but we learn more and more that drones, for one thing, are already being given to police departments for surveillance. And they are being designed for every possible purpose. I mean, theoretically, maybe practically, you could have a drone the size of a fly which could be buzzing around over there [points to window] listening to what we’re talking about. And I’d suspect that it won’t be too long before that becomes realistic.
And of course they are being used to assassinate. There’s a global assassination campaign going on which is pretty interesting when you look into how it’s done. I presume everyone’s read the front page of the New York Times story, which is more or less a leak from the White House, because they are apparently proud of how the global assassination campaign works. Basically President Obama and his national security advisor, John Brennan, now head of the CIA, get together in the morning. And Brennan’s apparently a former priest. They talk about St. Augustine and his theory of just war, and then they decide who is going to be killed today.
And the criteria are quite interesting. For example, if, say, in Yemen a group of men are spotted by a drone assembling near a truck, it’s possible that they might be planning to do something that would harm us, so why don’t we make sure and kill them? And there’s other things like that.
And questions did come up about what happened to due process, which is supposedly the foundation of American law — it actually goes back to Magna Carta, 800 years ago — what about that? And the justice department responded. Attorney General Holder said that they are receiving due process because it’s “discussed in the executive branch.” King John in the 13th century, who was compelled to sign Magna Carta, would have loved that answer. But that’s where we’re moving. The foundations of civil law are simply being torn to shreds. This is not the only case, but it’s the most striking one.
And the reactions are pretty interesting. It tells you a lot about the mentality of the country. So one column, I think it was Joe Klein, a bit of a liberal columnist for one of the journals, was asked about a case in which four little girls were killed by a drone strike. And his answer was something like, “Well, better that their little girls should be killed than ours.” So in other words, maybe this stopped something that would ultimately harm us.
There is a reservation in the United Nations Charter that allows the use of force without Security Council authorization, a narrow exception in Article 51. But it specifically refers to “imminent attack” that’s either underway or imminent so clearly that there is no time for reflection. It’s a doctrine that goes back to Daniel Webster, the Caroline Doctrine, which specifies these conditions. That’s been torn to shreds. Not just the drone attacks, but for a long time.
And so slowly the foundations of liberty are ripped to shreds, torn apart. Actually Scott Shane, one of the authors of the Times story, did write an article responding to the various criticisms that appeared. His ending was quite appropriate, I thought. He said something like, “Look, it’s better than Dresden.” Isn’t it? Yeah. It’s better than Dresden. So that’s the bar: we don’t want to just totally destroy everything. We’ll just kill them because maybe someday they will harm us. Maybe. Meanwhile, well of course, what are we doing to them?
I think it’s everything from that to surveillance systems that will be of unimaginable scale and character. And of course now data can be collected endlessly. In fact Obama supposedly has a data storage system being constructed in Utah somewhere where all kinds of data are being poured in. Who knows what? Probably all your emails, all your telephone conversations, someday what you’re saying to people in the streets, where you’ve been lately, you know, who do you talk to, probably a ton of stuff like that will be there. Does it mean anything? Actually, probably not as much as many people fear. I don’t think that that data is actually usable. In fact I think, I suspect it’s usable only for one purpose: if the government for one reason or another is homing in on someone. They want to know something about this guy, well, then they can find data about him. But beyond that, history and experience suggest that there’s not much that can be done about it.
Even 40 years ago, 50 years ago — I actually was involved at the time in trials of the resistance against the Vietnam War. I was an unindicted co-conspirator in one trial, coming up for trial myself, and following other trials. I got to look fairly carefully at what prosecutions were like based on FBI data about people. They were comical. I mean, there were cases where they picked the wrong people. They picked one person, they meant someone else. In one of the trials, I kept being confused with a guy named Hershel Cominsky; they could never get the Jewish names straight. Unbelievable. In fact, in the Spock trial they really angered two people: Mark Raskin, who they put on trial and he didn’t want to be on trial, and Art Waskow, who did want to be put on trial and who they didn’t put on trial. It’s possible that Waskow was the person that they were looking for, but they couldn’t distinguish him from Raskin. And they just couldn’t put cases together.
The Spock trial is a very interesting case. I followed that one closely. That’s the one where I was an unindicted co-conspirator, so I was sitting in with the defense team, talking to the lawyers and knew all the people. The prosecutor, being the FBI, put on such a rotten case in the prosecution that the defense decided just to rest. They didn’t put on a defense, because the defense would have just tied together things that they hadn’t found. It was a conspiracy trial; all they had to do was tie things together. And it was transparent because it was all happening totally publicly. That was the whole point. And the FBI apparently was simply ignoring everything that was public, not believing it, which is almost all there was. Almost all there was; not everything. And looking for some kind of secret connections to who-knows-what, North Korea or whatever was in their minds.
But here they have plenty of data, right in front of their eyes and they don’t know how to use it. And I think that there is quite a lot of that.
SG: Getting back to that New York Times article that you mentioned: It outlines the process behind the “kill list” and the Pentagon-run meetings where they determine if a name can be added. Traditionally, presidents have kept a distance from legally murky CIA operations. But the Times article says that Obama is the final authority on a name being added to the list. Can you comment on the existence of the list and how close Obama is to the process?
NC: Well, any of these lists should be subjected to severe criticism. Including the terrorist list. Now there is a list of terrorists, you know, a State Department list of terrorists. Just take a look at it one day. Nelson Mandela was on the list until four years ago. There’s a reason: Ronald Reagan was a strong supporter of apartheid, and one of the last, practically until the end. And certainly at the end of his term, he continued to support the apartheid regime. In 1988 the ANC, Mandela’s African National Congress, was declared to be one of the more notorious terrorist groups in the world.
So that’s justification for supporting the apartheid regime: It’s part of Reagan’s war on terror. He’s the one that declared the war on terror, not Bush. Part of it was, “We have to defend the white regime against the terrorists of the ANC.” Then Mandela stayed on the list. It’s only in the last couple of years that he can travel to the United States without special authorization.
That’s the terrorist list. There are other cases. So take, for example, Saddam Hussein. Saddam Hussein had been officially considered a terrorist. He was taken off the list by Ronald Reagan and his administration in 1982 because the United States wanted to provide aid and support to Saddam — which they incidentally did, and tried to cover up, for all sorts of things. But, ok, so he’s taken off the list. They have an empty spot. So what do they do? They put Cuba on.
First of all, Cuba had been the target of more international terrorism than probably the rest of the world combined ever since Kennedy launched his terrorist war against Cuba. But it actually peaked in the late ’70s. Shooting down an airliner and killing 70 people, blowing up embassies, all kinds of things. So here’s the country that’s the target of more terrorism than anyone else, and they are put on the terrorist list to replace Saddam Hussein, who we [later] have to eliminate because we don’t want to support him.
What that tells you is quite incredible if you think it through. Of course, it’s never discussed, which also tells you something. But that’s the kind of question we should be asking about the terrorist list: Who is on it and why? Furthermore, what justification does it have?
It’s a decision in the executive branch of the government, not subject to judicial or any other review. They say, “You’re on the terrorist list!” Ok. You’re targeted for anything.
And other lists are like that too. McCarthy’s famous lists are minor examples. These are serious examples, these are official government lists. So to start with, we should put aside the idea that there is any sanctity, even authority, to the list. There isn’t. These are just state decisions at the whim of the executive for whatever reasons they may have. Not the kind of thing you ever have any respect for. Certainly not in this case.
SG: Sometime in the distant future, could there be blame placed directly on Obama legally just because of his close association with the kill list?
NC: I’m sure he knows it. I suspect that’s one of the reasons he’s been very scrupulous about exculpating all previous administrations. So no prosecution of Dick Cheney or George Bush or Rumsfeld for torture, let alone for aggression. We can’t even talk about that. Apparently the US is just exempt from any charges of aggression.
Actually, it’s not too well known, but as far back as the ’40s the US exempted itself. So the United States helped establish the modern World Court in 1946, but it added a reservation: That the United States cannot be charged with violation of international treaties. What they had in mind, of course, was the UN Charter, the foundation of modern international law. And the OAS Charter, charter of the Organization of American States. The OAS Charter has a very strong statement that they demand of any Latin American countries against any form of intervention. Clearly, the US wasn’t going to be limited by that. And the UN Charter, along with the Nuremberg principle, which entered into it, had a very harsh condemnation of aggression, which is pretty well defined. And they understood that, of course. They could read the words of the US Special Prosecutor at Nuremberg, Justice Robert Jackson, who spoke pretty eloquently to the tribunal and said when they handed the death penalty to the people, primarily for committing what they considered the “supreme international crime” — namely aggression, but lots of others — that they were “handing these people a poisoned chalice, and if we sip from it, we must be subject to the same judgment or else the whole proceedings are a farce.” Not well said, but it should be obvious. But there’s a reservation that excludes the US.
Actually, the US is excluded from other treaties too. Essentially all. If you take a look at the few international conventions that are signed and ratified, they almost always have an exception saying “not applicable to the United States.” It’s called non-self executing. Meaning, this needs specific legislation to exact it. This is true, for example, for the Genocide Convention. And it came up in the courts. After the bombing of Yugoslavia in 1999, Yugoslavia did bring a charge against NATO to the court, and the court accepted the charge. The rules of the court are that a state is only subject to charges if it accepts court jurisdiction. And the NATO countries all accepted court jurisdiction, with one exception. The US addressed the court and pointed out that the US is not subject to the Genocide Convention. One of the charges was genocide. So the US is not subject to the Genocide Convention because of our usual exemption.
So the immunity from prosecution is not just practiced, and of course the culture — it couldn’t be even imagined in the culture, which is an interesting comment about the culture. But also even just legally.
In fact, the same question might be asked about torture. The Bush administration has been accused, widely and prominently, of implementing torture. But if it ever came to trial I think a defense lawyer might have a stand to take: The US never really signed the UN Torture Convention. It did sign and ratify it, but only after it was rewritten by the Senate. And it was rewritten specifically to exclude the forms of torture used by the CIA, which they had borrowed from the Russian KGB.
It’s well studied by Alfred McCoy, one of the leading scholars that has dealt with torture. He points out that the KGB/CIA tortures, they apparently discovered that the best way to turn a person into a vegetable is what’s called “mental torture.” Not electrodes to the genitals, but the kinds of things that you see in Guantanamo and Abu Ghraib, which are called mental tortures. They don’t leave marks on the body, essentially. That’s the best way and we do them. In fact, we do it in supermax prisons all the time. And so the treaty was rewritten to exclude the kind of things that the CIA does and that we do and in fact are done routinely at home, although that didn’t come up. And it was then signed into domestic legislation, I think under Clinton.
So is the Bush Administration even guilty of torture under international law? It’s not entirely obvious. In fact it’s not entirely obvious who would be. To get back to your original question, I think Obama has serious reasons for making sure that, as he puts it, “it’s time to look forward, not backward.” That’s the standard position of a criminal.
SG: In some of the documents that were leaked and obtained in the last month, one of the things published in the Times and in McClatchy talked about how the CIA had reduced its use of black sites in part because of fear of prosecution, that their officials might be charged as war criminals. So considering what you’ve just described, why would the CIA be afraid enough to adjust its policies?
NC: Well, what they’re afraid of, I would suspect, is the kind of things that Henry Kissinger is apparently afraid of when he travels abroad. There is a concept of “universal jurisdiction” which is pretty widely held. It means if a war criminal, a person who has carried out really serious war crimes, major crimes — doesn’t have to be war crimes — arrives in your territory, that country has a right to bring him to judicial process. And it’s called “universal jurisdiction.” It’s kind of a shady area of international affairs, but it has been applied. The Pinochet case in London was a famous case. The British court decided that yes, they had a right to send him back to Chile for trial.
And there are other cases. By now, for example, there are recent cases where Israeli high officials have been wary of coming to London, and in some cases their trips have been called off because they could be subject to universal jurisdiction. And it’s been reported, at least, that the same is true of some of Kissinger’s concerns. And I think that’s probably what he’s referring to. You can’t be sure that . . . you know, power’s getting more diversified in the world. The US is still overwhelmingly powerful, but nothing like it once was. There are many examples of that. And you can’t be sure what others will do.
And a striking example of the restrictions of US power in this regard came out in a study that was reported, but I don’t think that the really important part of it was reported — that’s a study on globalizing torture put out by the Open Society Forum a couple of weeks ago. You’ll find it in the press. It was a study of rendition. Rendition, incidentally, is a major crime that, again, goes back to Magna Carta, explicitly. Sending people across the seas for torture. But that’s open policy now. And this was a study of which countries participated in it. And it turned out that it was over 50 countries, most of Europe, Middle East, which is where they were sent for torture. That’s where the dictators were, Asia and Africa. One continent was totally missing. Not a single country was willing to participate in this major crime: Latin America. And one person did point this out, Greg Grandin, a Latin Americanist at NYU, but he’s the only person I saw who pointed it out.
That’s extremely important. Latin America used to be the “backyard.” They did what we said or else we overthrew the governments. Well, furthermore, during these years it was one of the global centers of torture. But now US power has declined sufficiently so that the traditional, most reliable servants are simply saying no. It’s striking. And it’s not the only example. So, going back to universal jurisdiction, you can’t really be sure what others will do.
You know, I have to say, I never expected much of Obama, to tell you the truth, but the one thing that surprised me is relentless assaults on civil liberties. I just don’t understand them.