"Our Founding Fathers, faced with perils that we can scarcely imagine, drafted a charter to assure the rule of law and the rights of man -- a charter expanded by the blood of generations. Those ideals still light the world, and we will not give them up for expedience sake."
In his first full day in office President Obama said: "Transparency and the rule of law will be the touchstones of this administration." The remarkable campaign and inspiring oratory of the first African-American to be elected to the planet's most powerful public office sparked worldwide optimism and hope for new and creative approaches to serious national and international challenges. Two days later, on Jan. 23, the CIA launched two missile attacks on Pakistan. Fifteen people in Waziristan, in Pakistan's Northwest Frontier Province, were killed by Hellfire missiles launched from unmanned drones.
The attacks were the latest in a series that began several years earlier and intensified in 2008.
As such, despite the Obama campaign mantra, "Change We Can Believe In," they represented the President's commitment to a critical component of the Bush administration's foreign and military policy: expansion of what George W. Bush dubbed the "global war on terror" - from one key theater of the GWOT in Afghanistan across the border into Pakistan.
The attacks are ostensibly aimed at leaders of al-Qaeda who are blamed for the 9/11 terrorist attacks on New York and Washington, and at Taliban militants who slip across the Afghan border to attack U.S., NATO and Afghan government forces.
Candidate Obama outlined his position in a hawkish address at the Woodrow Wilson Center in Washington on Aug. 1, 2007. He said:
"Al-Qaeda terrorists train, travel, and maintain global communications in this safe haven. The Taliban pursues a hit-and-run strategy, striking in Afghanistan, then skulking across the border to safety. This is the wild frontier of our globalized world. ...
"But let me make this clear. There are terrorists holed up in those mountains who murdered 3,000 Americans. They are plotting to strike again. ... If we have actionable intelligence about high-value terrorist targets and [Pakistan's leader] won't act, we will."
Since the start of the Obama administration about 170 people have been killed inside Pakistan in at least 17 of these attacks. The Pakistan newspaper, "The News," says the great majority have been civilians.
For many, the killings have thrown a shadow over early hopes for new thinking about Bush's GWOT, which the Obama administration rebranded as the "Overseas Contingency Operation."
The missile attacks indicate, as well, that President Obama's perspective on the rule of law may have less in common with the uplifting eloquence of January than with the disdain consistently displayed during the previous eight years by his predecessor in the Oval Office.
Killing people in Pakistan with Hellfire missiles is against the law.
The attacks violate the Geneva Conventions, the International Covenant on Political and Civil Rights, the United Nations Charter, UN General Assembly Resolution #3314 and the Nuremberg Charter.
Even when the missiles hit their intended targets in Pakistan, the orders to fire are given from thousands of miles away by CIA officials watching on computer screens in North America. CIA teams sit, in effect, as collective judge, jury and executioner.
Protocol II, Article 6(2) of the Geneva Conventions says: "No sentence shall be passed and no penalty shall be executed on a person found guilty of an offence except pursuant to a conviction pronounced by a court offering the essential guarantees of independence and impartiality."
The 170 or so people who have been killed by Hellfire missiles in Pakistan since Inauguration Day represent 170 extrajudicial killings - outlawed not only by the Geneva Conventions but by the International Covenant on Civil and Political Rights: Article 6(1): "Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life."
Article 6(2): Sentence of death "can only be carried out pursuant to a final judgment rendered by a competent court.
Unless the Pakistani government has invited the United States to fire missiles into Pakistan, the attacks violate the United Nations Charter Article 2(4): "All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations."
Perhaps the most far-reaching aspect of the illegality of the drone attacks is that each is an act of aggression. The United Nations Definition of Aggression, General Assembly Resolution #3314, provides a list of acts defined as aggression, including Article 3(b): "Bombardment by the armed forces of a State against the territory of another State or the use of any weapons by a State against the territory of another State." Article 5 makes it clear -- aggression is never legal: "No consideration of whatever nature, whether political, economic, military or otherwise may serve as a justification for aggression."
This was the position of the Tribunal at the first Nuremberg Trial. At Nuremberg 22 of the most prominent Nazis were tried for war crimes, crimes against peace (aggression), crimes against humanity and conspiracy following World War II.
In the judgment the Tribunal left no doubt as to the enormity of the crime of aggression, labeling it "the supreme international crime differing only from other war crimes in that it contains within itself the accumulated evil of the whole."
Eight German leaders were convicted of aggression at Nuremberg. Five of these received death sentences.
Certainly the scale of American aggression in Pakistan is small compared to that of German aggression in World War II.
But how many civilian deaths, destroyed homes and summary executions does it take for the firing of remote-controlled missiles into Pakistan to qualify as a crime?
It's not as if there is a lack of compelling and creative alternative visions being proposed by smart people with experience in and knowledge of the region.
For example, as recently reported in The Nation, Akbar Ahmed, former High Commissioner from Pakistan to the UK emphatically told the Congressional Progressive Caucus on May 5 that the best strategy in Pakistan is to work through tribal organizations and networks. He emphasized aid, education and the certain failure of an approach that is primarily military: "The one thing every Pakistani wants for his kids is education.... Within one to three years you will turn that entire region around. The greatest enemies of the Americans will become their allies." In the book outlining Barack Obama's vision, Change We Can Believe In -- Barack Obama's Plan to Renew America's Promise, are these words (p. 104) "To seize this moment in our nation's history, the old solutions will not do. An outdated mind-set which believes we can overcome these challenges by fighting the last war will not make America safe and secure."
Unfortunately, in its first few months the Obama administration has been fighting the last President's war. As far as Pakistan is concerned, neither the President's foreign policy nor his perspective on the rule of law seem to be materially different from those of President Bush. However, President Obama apparently is now "re-evaluating" the missile strikes, in light of their widespread unpopularity in Pakistan and the threat to the survival of Pakistan's government.
Perhaps now is a good time to look for an approach that is both legal and more effective in the long term than extra-judicial killings of Taliban militants, al-Qaeda extremists and Pakistani civilians.
Perhaps this is an opportunity for change we can believe in.