The Long (Dirty) War

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When counter-terrorism is fought as a proxy war, the scope of application of international law falls second to political legitimacy. The accountability of ground forces is debated in memorandums of understanding supposed to grant belligerent parties immunity. Counter-terrorism powers are extended domestically, diminishing the power of judicial authority and shrinking any attempt at a legislative check on the executive. Secrecy becomes a blanket under which no one can emerge nor breathe. If today’s speech at the General Assembly, coupled with John Kerry’s comment and the authorisation of strikes against ISIS are to be believed, we are continuing a war we can barely remember when it started.

The war against the unseen

The issue of defining one’s enemy in conflict – war, terrorism, insurgency – as “uncivilised” and “only understanding force” the way Obama did with ISIS at the General Assembly implies that jus ad bello not only will not be observed, but should not be observed. As the rule of law was intended to preserve order between nations – most of them empires – that understood each other’s objectives and used diplomacy as a tool of realpolitik, the current, modern wars are more repression than expansion; preemption rather than reaction; and displays of lethal use of force as a supposed deterrent. All of these concepts can be easily debunked by military strategists and political analysts. The problem being the application of international law as a two-tier system: the upper level demands UN sanctioned actions, briefings, arbitration and support; it concerns high stake multinational talks – the Iran deal, the Ukraine conflict – and fails to gain popular support, a people weary of the constant tension of the Cold War and the belief that it is now possible to avoid violence. Diplomacy in lieu of war is seen as a grown up, mature, respectful decision. In many respects, it is. But it only highlights the lack of concern for the lower level, which is othering insurgency, rejecting the cause of terrorism, and abolishing fundamental rights of occupied peoples. Those being addressed in the terms used by Obama will never benefit from the protection of a UN resolution, or perhaps an ex post facto one after it is universally acknowledged disaster is imminent (UNSC res. 1483); they will never face a “courteous enemy” using conventional weapons and registered troops; the territorial and chronological frontiers of this war won’t ever be set in legal stone. Those are wars of annihilation and of utmost control. Those are wars existing outside of the boundaries we set for ourselves over a hundred years ago, because the enemy is not us. The Geneva Convention can’t possibly have been written to fight barbaric terrorists, animals, sociopathic “death cults” roaming villages with M-16s stolen from western powers once arming the local forces. What the law creates is an order to preserve authority and save the political face; counter insurgency and counter terrorism are by political nature dirty. Those dirty wars, as they came to be known in South America in the 1970s, served as the basis to make current and potential insurgents understand their place: below the firepower and arrogant self-righteousness of western states contentedly engaging in state terror, but hiding it under the ubiquitous and semantic concept of existential threat. Semantic – because it’s substantially empty.

Armed Reaper drone belonging to the Royal Air Force being prepped at a RAF airbase in Afghanistan. (c) 2013 dronewars.net

The idea that the lawful conduct of war belongs to the civilized nation-state dates back to the Oxford Manual, a 1880 text following the very first Geneva Convention of 1864. The Preamble of the Oxford Manual presents war as an inevitability, a necessity, something that is impossible to avoid, therefore should be codified and regulated to minimize an idea of what’s needless blood spillage, and waste of human life and potential. Many critics have since derided the concept of a Just War. The Oxford Manual is not about peace; it is about setting limits and binding states to clear boundaries that would be otherwise penalised. If there is such a thing as civilised war, it is a legal concept; it is definitely not a political one, a difference with which Obama has become well acquainted. Per the Preamble,

War holds a great place in history, and it is not to be supposed that men will soon give it up — in spite of the protests which it arouses and the horror which it inspires — because it appears to be the only possible issue of disputes which threaten the existence of States, their liberty, their vital interests. But the gradual improvement in customs should be reflected in the method of conducting war. It is worthy of civilized nations to seek, as has been well said (Baron Jomini), “to restrain the destructive force of war, while recognizing its inexorable necessities”.(…) In fact so long as the demands of opinion remain indeterminate, belligerents are exposed to painful uncertainty and to endless accusations. A positive set of rules, on the contrary, if they are judicious, serves the interests of belligerents and is far from hindering them, since by preventing the unchaining of passion and savage instincts — which battle always awakens, as much as it awakens courage and manly virtues, — it strengthens the discipline which is the strength of armies; it also ennobles their patriotic mission in the eyes of the soldiers by keeping them within the limits of respect due to the rights of humanity.

A two-tier system doesn’t mean the conflict is necessarily disproportionate in terms of the violence inflicted by belligerent parties. But quotes such as this one – “America will be a respectful and constructive partner. We will neither tolerate terrorist safe-havens, nor act as an occupying power” indicates the creation of a blurred, dangerous zone of mingled politics in which the US will claim not to interfere with self-determination, while deciding – with various degrees of forced input – how said determination should be achieved. It isn’t defined per se by ancient standards of warfare. It isn’t marked by clear boundaries written in treaties. It has become acceptable that, not only counter terrorism belonged to the law of armed conflict – a concept convenient for the imperialist nature of foreign intervention – but that said armed conflict was to be governed outside of said laws, possibly justified legally ex post facto and often retroactively. In fact, counter terrorism belongs to the realm of domestic law and answers to the same jus gentium that has always existed. Unless, of course, the authorization for the use of military force has given way to a frustrated, exasperated and exhausted Special Rapporteur who, in March of this year, rhetorically asked the U.S. if international law had to be amended or perhaps rewritten to remove possible obstacle to whatever the U.S. believed should and could be done outside of their realm to answer a potential, hypothetical and hardly eventual “threat” to the nation.

So far, nothing. It is convenient and comfortable to act in a realm that is presented as new, and keep journalists, lawyers and commentators of all corners guessing. The more questions are raised and the less answers given, transatlantic executive powers are gaining in strength and unilateral authority. The leeway granted by their own approved lawyers is outstanding, but not unprecedented. It is shocking, mostly due to factors that should never be implemented simultaneously: the lack of transparency and the shortness of collective memory.

Inter armas silent leges

The first has proved to be the most impressive tool of war. Secrecy is as useful to an administration at war with an undefined and unlimited enemy as are Humvees and sol-air missiles. It has permeated every governmental agency; it has even kept the legislative at bay by relegating its members to a bottom-tiered personnel that shouldn’t be burdened with the nauseous details of military tribulations. It has created a domestic conflict between the executive and its fourth estate, to the extent of turning the latter into an enemy itself, subjected to the same punishment as those foreign threats. The state of hyper vigilance has become the state itself. It is inflated, overgrown, unkempt yet fearfully respected. To maintain appearances, the character of a “reluctant warrior” has been created to fit the era: authority and power no longer lie in the ability of going to war as it once did, but in the possibility that one might do so if they unilaterally decided it could. Ultimately, the result is the same: what is considered strong and worthy of respect can only translate into use of force. The old mechanisms of blood and iron that characterized the imperialist nature of Europe throughout the post-enlightenment centuries has once again covered the west in a blanket of fearful speeches and conservation of pseudo-democracy. Secrecy is only there to stop inquisitive eyes from realising little has changed since the Cold War. Secrecy is there so the horrors inflicted in the name of safety are never weighed against it, in case the people would decide their safety isn’t worth that much pain. Secrecy keeps everything at bay: human rights, democratic principle, popular consultation, and political normalcy, which is, the daily running of government in peacetime. Secrecy favors a permanent state of war. Because we hardly get to see those in theater deployment, we can only trust those in power and hope for the best. We can only speculate and go to bed hoping the elite is right.

In an article commenting Obama’s speech on September 10th authorizing air strikes against ISIS, Spencer Ackerman wrote:

In the space of a single primetime address on Wednesday night, Barack Obama dealt a crippling blow to a creaking, 40-year old effort to restore legislative primacy to American warmaking – a far easier adversary to vanquish than the Islamic State. Obama’s legal arguments for unilaterally expanding a war expected to last years have shocked even his supporters.

Ahead of Wednesday’s speech the White House signaled that Obama already “has the authority he needs to take action” against Isis without congressional approval. Obama said he would welcome congressional support but framed it as optional, save for the authorisations and the $500m he wants to use the US military to train Syrian rebels. Bipartisan congressional leaders who met with Obama at the White House on Tuesday expressed no outrage. (…)

Taken together with the congressional leadership’s shrug, Obama has stripped the veneer off a contemporary fact of American national security: presidents make war on their own, and congresses acquiesce. (…)

John Yoo, architect of the AUMF 2001, pagan servant to the god of Perpetual War

What’s considered questionable now, and still yet by what amounts to a fringe of commentators, has however been taken place for quite a while. It was fashionable, in the early stages of the Obama counter-terrorism strategy, to conflate legitimacy with legality, and consider lawful what was necessary – politically. It had become a fixture of American legal commentary to justify overinflated use of executive power for the simple reason that in times of war, the President ought to have the authority to do what it takes to protect the realm – a concept that is easily politically understood, but just as easily judicially curbed for all history tried to teach mankind since the dawn of empires. Because counter-terrorism powers are by nature an exaggerated version of normalcy, they are meant to be limited both in scope (subjected to judicial and legislative review) and in time (there is no such thing as a permanent derogation). Arguing counter-terrorism under law of armed conflict belongs to another more detailed and more focused article; but in short, in extends war time powers – limited only in time by military strategy – to what should and ought to be confined for the preservation of the rule of law and democratic principle. Because a terror threat is elusive and can take place at any time, this is arguing in favor of human rights law derogation as a permanence. The only possible review we could hope for are the limitations of international humanitarian law, often finding themselves violated before it even reaches our eyes and ears.

Same Preamble to the Oxford Manual quoted above continues in the same vein; arguing that the universality of what would become customary international humanitarian law must be agreed upon so all are bound by the same rules. By creating coalitions outside of international organisations created specifically for that purpose, or seeking the help of local governments far from acquiescing to any sort of human rights order but motivated by gaining the spoils of war, the idea of proxy intervention for a threat neither imminent nor existential removes the guarantees of jus ad bello, in which the peoples suffering from the strikes and those suffering from having to support those strikes would be somewhat protected. There is no telling when and where the strikes would begin nor end; we will be told what the executive will tell, and rely on those with security clearance to provide information, provided they do want to do so.

But in order to attain this end it is not sufficient for sovereigns to promulgate new laws. It is essential, too, that they make these laws known among all people, so that when a war is declared, the men called upon to take up arms to defend the causes of the belligerent States, may be thoroughly impregnated with the special rights and duties attached to the execution of such a command.

When it comes to making the rules “known among all people”, the issue of secrecy becomes paramount to ensure relative support for the use of force. Chelsea Manning, the whistleblower enduring a 35-year prison sentence after years in solitary confinement for having revealed information relative to the Iraq and Afghanistan war that the government deemed not appropriate for the general public, raised her hand in the days before the strikes to doubt the presidential strategy.

I believe that Isis is fueled precisely by the operational and tactical successes of European and American military force that would be – and have been – used to defeat them. I believe that Isis strategically feeds off the mistakes and vulnerabilities of the very democratic western states they decry. The Islamic State’s center of gravity is, in many ways, the United States, the United Kingdom and those aligned with them in the region. When it comes to regional insurgency with global implications, Isis leaders are canny strategists. It’s clear to me that they have a solid and complete understanding of the strengths and, more importantly, the weaknesses of the west. They know how we tick in America and Europe – and they know what pushes us toward intervention and overreach. This understanding is particularly clear considering the Islamic State’s astonishing success in recruiting numbers of Americans, Britons, Belgians, Danes and other Europeans in their call to arms.

Terrorism is meant to scare. It is meant to paralyse, to halt, to stall the course of daily political, social and legal activities. It is intentionally disruptive. By rooting itself into a refusal of the so-called “values” – a very much subjective concept that is more moral than ethical and doomed to fail in times of political instability – of a given state or alliance of states, terrorist groups succeed in recruiting those marginalised by those states. Ethnic minorities, targeted political groups, disenfranchised social categories are all susceptible to join the ranks of the disruption by violence. Most importantly, terrorism never happens in a vacuum. It is a reaction to a state of affairs. By provoking the West in an appalling, repellant, barbaric and bloodthirsty way – the beheadings of James Foley and Steven Sotloff are stomach-churning – ISIS is calling onto the West to face a monster it is worried it has created. And it might as well have: intelligence agencies from both sides of the Atlantic are trying to assess how many of their own nationals are currently fighting along side the pseudo caliphate in Iraq and in Syria. Hysteria has now corrupted the West to the point that presumptions of guilt are being discussed, confiscation of passports are frequent, and fruitless police raids are conducted under the pretense it is keeping us safe.

President Barack Obama, accepting his Nobel Peace Prize in 2009.

Yet we become a failed state. We become a state that is so at war within itself and within those dissenting with the policy, the value, the belief, the ingrained doctrine, the political spectrum that we fight fire with fire, and we wage war in a way that is unlikely to end, because the violence is fed through this action. Calling on the illegality of the strikes on Syria is a step forward to restore accountability, but it might be too late. The framework for evading Congressional support or constitutionality of action has been set in motion a while ago, and we have internalised the terror, from both ISIS and the state; the fear, from both ISIS and the state; the violence, the surveillance, the torture, the raids, the political fire drills, the defense budgets and the ever so frequent NATO meetings. Gregory Johnsen tracked down the precedence for this politics of use of force as a default setting, an emotional knee-jerk reaction against something we can barely name and have no information on.

This is about prevention and preemption, exactly the sort of thing that candidate Obama said presidents were not authorized to do without congressional approval. But Congress seems to have little desire to vote on military action ahead of midterm elections in November, and, after last year’s confused approach to military strikes in Syria, Obama seems to have just as little interest in asking permission. Instead, whether out of expediency or outlook, he appears to have altered his views on constitutional power, and in doing so found himself relying on the same theories he once criticized. (…) In an apparent attempt to elide some of these inconsistencies in constitutional interpretation, the White House is also considering what amounts to a backdoor authorization that, according to the New York Times, would have Congress appropriate money for Obama’s military plans. A sort of gentleman’s agreement that gets around direct congressional authorization, the plan would allow for deniability on both sides. Obama could claim he has congressional authorization without ever asking for a vote, while Congress could signal its support without individual members being forced to take a stand. President Bill Clinton retroactively used a similar maneuver in 1999 for airstrikes in Kosovo.

Militarism was never the sole component of imperialism. It involved egotism on the part of the power-hungry elites; it demanded silence and acquiescence from the press and authors; it requested the life of sons and the submission of daughters. Terrorism is not a new threat. It was never born with 9/11 and will not end once ISIS is over and done with. The counter-terrorism laws devised by the United Kingdom to keep the Irish insurgency under its boot has expanded to the point it can hardly be stopped. The framework is that military action shouldn’t be authorized without legislative approval and without knowledge of an imminent threat. In the last decade, intelligence has been manufactured, and constitutions have been bypassed. At the time this is being written, the UK Parliament is about to be recalled to discuss their own involvement in Syria. Looking at a globe right now is staring at a million red flashes of emerging and ongoing conflicts. This is the real security threat that is menacing global safety: the blatant insecurity of a power that doesn’t know how to restrict itself. If politics are a discipline of control, counter-terrorism is an exercise in restraint and strategy. Granting extensive counter-terrorism powers and planting it on the throne of war is unleashing a force that will take years to be restrained again.

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About K
bastard banshee. devious lawyer. Lucille Bluth. probably jetlagged.

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