In 2001, Charles Krauthammer first coined the phrase "Bush Doctrine",
which would later become associated most significantly with the legal
anomaly known as pre-emptive strike. Understanding the doctrine with
hindsight could lead to a further understanding of the legacy that the
former administration left - the choice to place concerns of national
security over even the most entrenched norms of due process and the
rule of law. It is, indeed, this doctrine that united people across the
world in their condemnation of Guantánamo Bay.
The ambitious desire to close Guantánamo hailed the coming of a new era, a feeling implicitly recognised by the Nobel peace prize that President Obama
received. Unfortunately, what we witnessed was a false dawn. The
lawyers for the Guantánamo detainees with whom I am in touch in the US
speak of their dismay as they prepare for Obama to do the one thing
they never expected - to send the detainees back to the military
commissions - a decision that will lose Obama all support he once had
within the human rights community.
Worse still, a completely new
trend has emerged that, in many ways, is more dangerous than the trends
under Bush. Extrajudicial killings and targeted assassinations will
soon become the main point of contention that Obama's administration
will need to justify. Although Bush was known for his support for such
policies, the extensive use of drones under Obama have taken the death
count well beyond anything that has been seen before.
Harold Koh, the legal adviser to the US state department,
explained the justifications behind unmanned aerial vehicles (UAVs)
when addressing the American Society of International Law's annual
meeting on 25 March 2010:
"[I]t is the considered
view of this administration ... that targeting practices, including
lethal operations conducted with the use of unmanned aerial vehicles
(UAVs), comply with all applicable law, including the laws of war ... As
recent events have shown, al-Qaida has not abandoned its intent to
attack the United States, and indeed continues to attack us. Thus, in
this ongoing armed conflict, the United States has the authority under
international law, and the responsibility to its citizens, to use
force, including lethal force, to defend itself, including by targeting
persons such as high-level al Qaeda leaders who are planning attacks ...
[T]his administration has carefully reviewed the rules governing
targeting operations to ensure that these operations are conducted
consistently with law of war principles ... "[S]ome have argued that
the use of lethal force against specific individuals fails to provide
adequate process and thus constitutes unlawful extrajudicial killing.
But a state that is engaged in armed conflict or in legitimate
self-defense is not required to provide targets with legal process
before the state may use lethal force. Our procedures and practices for
identifying lawful targets are extremely robust, and advanced
technologies have helped to make our targeting even more precise. In my
experience, the principles of distinction and proportionality that the
United States applies are not just recited at meeting. They are
implemented rigorously throughout the planning and execution of lethal
operations to ensure that such operations are conducted in accordance
with all applicable law."
The legal justifications put forward by Koh are reminiscent of the arguments that were used by John Yoo and others
in their bid to lend legitimacy to unlawful practices such as
rendition, arbitrary detention and torture. The main cause for concern
from Koh's statements is the implication that protective jurisdiction
to which the US feels it is entitled in order to carry out operations
anywhere in the world still continues under Obama. The laws of war do
not allow for the targeting of individuals outside of the conflict
zone, and yet we now find that extrajudicial killings are taking place
in countries as far apart as Yemen, the Horn of Africa and Pakistan.
From a legal and moral perspective, the rationale provided by the State
Department is bankrupt and only reinforces the stereotype that the US
has very little concern for its own principles.
legalities of what is being conducted, the actuality of extrajudicial
killings, especially through UAVs is frightening. The recent revelations by WikiLeaks
on the killing of civilians by US Apache helicopters in Iraq has
strongly highlighted the opportunities for misuse surrounding targeting
from the air. In the Iraq case, there were soldiers who were supposed
to be using the equipment to identify so-called combatants, and yet
they still managed to catastrophically target the wrong people. This
situation is made even worse in the case of UAVs, where the operators
are far removed from the reality of the conflict and rely on digital
images to see what is taking place on the ground.
Conservative estimates from thinktanks such as the New American Foundation
claim that civilian causalities from drone attacks are around one in
three, although this figure is disputed by the Pakistani authorities.
According to Pakistani official statistics, every month an average of
58 civilians were killed during 2009. Of the 44 Predator drone attacks
that year, only five targets were correctly identified; the result was
over 700 civilian casualties.
Regardless of the figures used, the
case that extrajudicial killings are justified is extremely weak, and
the number of civilian casualties is far too high to justify their
A further twist to the Obama Doctrine is the
breaking of a taboo that the Bush administration balked at - the
concept of treating US citizens outside of the US constitutional
process. During the Bush era, the treatment of detainees such as John
Walker Lindh, Yasser Hamdi and Jose Padilla showed reluctance by
officials to treat their own nationals in the way it had all those of
other nationalities (by, for instance, sending them to Guantánamo Bay
and other secret prisons). The policy of discrimination reserved for US
citizens showed that there was a line the US was not willing to cross.
least, today, we can strike discrimination off the list of grievances
against the current president. The National Security Council of the US
has now given specific permission to the CIA to target certain US
citizens as part of counter-terrorism operations. Specifically, Anwar al-Awlaki has been singled out
for such treatment, as it has been claimed that he was directly
involved in the planning of the Major Hasan Nidal killings and the
Christmas Day bomber attacks. Indeed, it is claims such as this that
bring the entire concept of targeted assassinations into question. The
US would like us to believe that we should simply trust that they have
the relevant evidence and information to justify such a killing,
without bringing the individual to account before a court.
assumption that trust should be extended to a government that has
involved itself in innumerable unlawful and unconscionable practices
since the start of the war on terror is too much to ask. Whatever
goodwill the US government had after 9/11 was destroyed by the way in
which it prosecuted its wars. Further, the hope that came with the
election of Barack Obama has faded as his policies have indicated
nothing more than a reconfiguration of the basic tenet of the Bush
Doctrine - that the US's national security interests supersede any
consideration of due process or the rule of law. The only difference -
witness the rising civilian body count from drone attacks - being that
Obama's doctrine is even more deadly.