SOTU: Invalidating legal basis for drone strikes, and lies about transparency

Obama’s recent State of the Union Address included the following statements about Al-Qaeda:

Today, the organization that attacked us on 9/11 is a shadow of its former self. Different al Qaeda affiliates and extremist groups have emerged – from the Arabian Peninsula to Africa.

“Affiliates” and disparate “extremist groups” can not be considered a single enemy entity with a common command structure, as required by international law in defining a non-international armed conflict. I previously wrote here about why the US cannot be in an international armed conflict, and how even it’s claim to be in a non-international armed conflict is invalidated by the fact that these separate entities do not constitute one party. Obama’s statements in his SOTU speech corroborate this point by redefining Al-Qaeda not as one single organization, but more of a shared ideology, again, lacking a common command structure. 

The DOJ’s recently-leaked white paper on drones unambiguously states: “The United States is currently in a non-international armed conflict with al-Qa’ida and its associated forces.” Under International Humanitarian Law, the US cannot arbitrarily expand the definition of a “party” (as in the parties to a non-international armed conflict, including al-Qaeda) to include a variety of groups who do not share a common command structure. Groups sharing a common ideology do not constitute a single party under international law, and therefore the US must either claim to be in a non-international armed conflict with each of the individual groups it targets, or it must renounce using it’s claim of being in armed conflict with al-Qaeda and its “affiliates” as a justification for targeting individuals who are not part of the al-Qaeda command structure.

Kevin Jon Heller points out

even the U.S. government rejects the idea that AQ is a unified organization, dividing AQ into three separate tiers: (1) core AQ; (2) “small groups who have some ties to an established terrorist organization, but are largely self-directed”; and (3) “homegrown extremists’ who ‘have no formal affiliation with al Qaeda, but… are inspired by its message of violence.”

And commenting on the DOJ white paper, Heller writes

The actual organization of “al-Qa’ida and its associated forces” fatally undermines the White Paper. If those terrorist groups do not form a single organized armed group, there can be no single NIAC between the US and “al-Qa’ida and its associated forces.”

Returning to Obama’s SOTU:

my Administration has worked tirelessly to forge a durable legal and policy framework to guide our counterterrorism operations. Throughout, we have kept Congress fully informed of our efforts.

Actually, as Marcy Wheeler points out, Congress has actually the Obama administration for the targeted killing memos on 19 separate occasions. That count of 19 includes a request by Sen. Rand Paul (R-Ky.), who has also announced that he will withhold a vote on Brennan’s confirmation to Director of CIA until Brennan “openly responds” to the questions and concerns of Paul and his colleagues.

Obama’s expressed fantasies about the transparency of his administration reveal just how delusional he and his administration truly are when it comes to the issue of governance. To be sure, this sort of pathological behaviour only proceeds afoot when it goes unchallenged by the media and the electorate. Americans who watched Obama’s SOTU address or read the transcript should be carefully scrutinizing his claims and weighing them against the available evidence to see if he is simply giving lip service (as he evidently is) to the ideals of transparency and legal accountability.

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One thought on “SOTU: Invalidating legal basis for drone strikes, and lies about transparency

  1. Pingback: McCain accuses Paul of scaremongering… then scaremongers some himself | The Drone Fallacy

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