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No More Due Process: Just 'Targeted Killings'

By George Venturini

13 October, 2011

On 9 June 1937, at Bagnoles-de-l'Orne, Mussolini had Prof. Carlo Rosselli, a distinguished Italian lawyer, political scientist, anti-Fascist agitator, killed - in France by the hand of the Fascist Secret Service, in complicity with the Cagoule , a French criminal organisation. 200,000 persons attended the funeral in Paris.

On 21 September 1976, in Washington D.C., Pinochet had Dr. Marcos Orlando Letelier del Solar, a distinguished Chilean lawyer, senior economic consultant and adviser to President Allende, killed - in the United States where Letelier had taken refuge, by the hand of the D.I.N.A., Pinochet Secret Service, in complicity with the Central Intelligence Agency, then under the directorship of G. H. W. Bush. The assassination outraged the ‘western world'.

On 30 September 2011, at a site 140 kilometres east of Sana'a, the capital of Yemen, Anwar al-Aulaqi an American born dual citizen, was killed by a barrage of missiles fired from an unmanned aerial vehicle - a drone - into his car. The drone had been guided by American personnel either from a secret American base in the Arabian Peninsula, probably in Saudi Arabia, alternatively in Virginia, or semble from a recently built drone installation in Yemen itself. Other persons, one of them Samir Khan, an American citizen of Pakistani origin who was the editor of Inspire , al-Qaeda's English-language online magazine, and some Yemenis, were killed simultaneously.

Al-Aulaqi was not distinguished, only notorious. He was a Muslin cleric, a mid-level religious functionary who happened to speak English well. This made him a propaganda threat, but not one whose elimination would do anything to limit the reach of al-Qaeda. Except that he was good with inflammatory sermons, delivered with particular skill, and which appealed to many alienated Muslims in the English-speaking world. He had conveyed the al-Qaeda message of hatred and death in a way that they understood. Through his DVDs and the Internet, he had some impact on radical English-speaking would-be jihadis. His firebrand rhetoric had become renowned in jihadi websites, and inspired many followers. He had declared war on the United States through the Internet. On his website he called on Muslims to kill American soldiers anywhere in the world; he said it was an Islamic duty. With a blog, a Facebook page and numerous YouTube videos of his sermons, he had increasingly been regarded by the United States National Security Council as one of the most dangerous men alive. Only American propaganda had succeeded in making him a larger-than-life figure. It seems that Yemeni intelligence had pursued him for years; in May 2011 a drone attack narrowly missed him and other members of his entourage as they drove across a desert. In e-mails he encouraged U.S. Major Nidal Malik Hasan to kills US soldiers - Hasan gunned down thirteen of them at Fort Hood in November 2009. Al-Aulaqi was ‘suspected' with inspiring at least three more plots against United States soil in recent years: the failed Time Square bombing, the failed ‘underwear bomber' and a parcel bomb hidden inside a printer which also failed to explode while inside a passenger jet.

Understandably, given the more than delicate moment for American Muslims, a prominent national Muslim civil rights and advocacy organisation reiterated that the calls to violence made by al-Aulaqi, had been “firmly rejected by American Muslims.” In a statement reacting to al-Aulaqi's death, the Washington-based Council on American-Islamic Relations said: “As we have stated repeatedly in the past, the American Muslim community firmly repudiates Anwar al-Awlaki's incitement to violence, which occurred after he left the United States. While a voice of hate has been eliminated, we urge our nation's leaders to address the constitutional issues raised by the assassination of American citizens without due process of law.”

Other than for the similarity of agents of a government killing one of its subjects overseas, there no comparison - and none is intended here - between the assassinations of Rosselli and Letelier, two shining examples of anti-fascist resisters, and the ‘targeted killing' of al-Aulaqi.

Questions remain though: such killing was possible, but was it legal, and is it morally justifiable ?

On 27 January 2010 The Washington Post reported that the Obama Administration had compiled a ‘kill list' of American citizens whom the President had ordered assassinated without any due process. One of those Americans was Anwar al-Aulaqi.

On 28 April 2010 the American Civil Liberties Union expressed its concern about a ‘targeted killing' programme under which the C.I.A. and the military have authority to hunt and kill individuals, including U.S. citizens, far away from the battlefields in Iraq, Afghanistan and even the Pakistani border regions, and potentially anywhere in the world. The programme was designed to operate without any checks and balances. All of the essential details about the programme remain secret. Outside the Administration it is not known what criteria are used to put people on the ‘kill lists' maintained by the C.I.A. and the military, how much evidence is required to add a person to the lists, or whether there are any geographical limits on where individuals can be targeted. The President has, in effect, claimed the unchecked power to place the names of citizens and others on ‘kill lists' on the basis of a secret determination, based on secret evidence, that a person meets a secret definition of the enemy.

As the A.C.L.U. put it in 2010, “It is not enough for the government to say “trust us” when it comes to authorizing the C.I.A. to hunt and kill U.S. citizens and others all over the world. Over the last eight years, we have seen the government over and over again detain men as “terrorists,” only to discover later that the evidence was weak, wrong, or non-existent. Of the many hundreds of individuals previously imprisoned in the so-called “war on terror,” the vast majority have been released or are awaiting release because the government's secret evidence against them could not withstand scrutiny. These types of mistakes are even more unacceptable when the consequence is death.”

Furthermore, outside of armed conflict zones, the use of lethal force is strictly limited by International Law and, when it comes to U.S. citizens, by the Constitution. Since 1791 the Fifth Amendment has been providing that “No person shall be ... deprived of life, liberty, or property, without due process of law ...” In ordinary circumstances, a trial and final conviction would be required before government officials could order an execution. Specifically, lethal force can be used only against an i mminent threat to life and, even then, only as genuine last resort once other alternatives have been exhausted. A programme under which names are added to a ‘kill list' after a secret bureaucratic process and remain there for months is clearly not limited to imminent threats.

While it has been reported that at least three U.S. citizens have been placed on the government's ‘targeted killing' list - the A.C.L.U. said - the identity of only one of those people has been reported: Anwar al-Aulaqi.

In early July 2010 the American Civil Liberties Union and the Center for Constitutional Rights were retained for uncompensated legal representation by Nasser al-Aulaqi, al-Aulaqi's father, to mount a constitutional challenge and seek a federal court order restraining the American Administration - in the persons of President Obama, Secretary of State Gates and C.I.A. Director Panetta - from killing his son without due process of law.  But then a significant and extraordinary problem arose: regulations promulgated several years ago by the Treasury Department prohibit Americans from engaging in any transactions with individuals labelled by the Government as “specially designated global terrorist,” and those regulations specifically bar lawyers from providing legal services to such individuals without a special ‘licence' from the Treasury Department specifically allowing such representation. 

On 16 July 2010 the Treasury Department placed the hideous label on Anwar al-Aulaqi.  That action would have made it a criminal offence for those organisations to provide legal representation to al-Aulaqi without express permission from the U.S. Government.  On 23 July the two organisations submitted a request for such a ‘licence' with the Treasury Department, and when doing so, conveyed the extreme time-urgency involved:  namely, that there was an ongoing governmental effort to kill al-Aulaqi and any delay in granting this ‘licence' could cause him to be killed without these claims being heard by a court.  The Treasury Department did not even respond to the request.

Instead, the Office of Foreign Asset Control - responsible for implementing the government's activities with regard to freezing foreign assets belonging to certain designated individuals - froze the assets of Anwar al-Aulaqi and made it a crime to provide representation for his benefit without first obtaining a ‘licence' from O.F.A.C.

On 3 August 2010 the A.C.L.U. and the C.C.R. filed a lawsuit on their own behalf in the U.S. District Court for the District of Columbia against Treasurer Geithner and the Treasury Department.  The organisations argued that Treasury has no statutory authority under the law it invoked - the International Emergency Economic Powers Act - to bar American lawyers from representing American citizens on an uncompensated basis.  They further argued what ought to be a completely uncontroversial point:  that even if Congress had vested Treasury with this authority, it was clearly unconstitutional to deny an American citizen the right to have a lawyer, and to deny American lawyers the right to represent clients, without first obtaining a ‘licence' from government  officials.  The point was put this way: “The notion that the government can compel a citizen to seek its permission before challenging the constitutionality of its actions in court is wholly foreign to our constitutional system.” and “[a]s non-profit organizations dedicated to protecting civil liberties and human rights, Plaintiffs have a First Amendment right to represent clients in litigation consistent with their organizational missions.”  The brief also argued that it is a violation of the ‘separation of powers' principle to allow the government to determine in its sole discretion who can and who cannot appear in and have access to a federal court.

The organisations sought, on an urgency basis, an order from the court declaring the Treasury Department's asserted power to be without statutory authority and/or in violation of the U.S. Constitution, and to bar the U.S. Government from imposing any penalties whatsoever - criminal or otherwise - on the A.C.L.U. and C.C.R. for providing legal representation to al-Aulaqi.  Assuming the court issued such an order, the next step would have been for a lawsuit promptly to be filed on al-Aulaqi's behalf to enjoin his ‘targeted killing'.

The circumstances were extraordinary: a lawsuit filed with the aim of restraining the President of the United States from having an American citizen killed far from any battlefield with no process of any kind. Abuses of any kind had occurred under the rule of President George W. Bush: torture, warrantless wiretaps, ‘extraordinary rendition', indefinite detention, targeted killing, trial by military commissions, warrantless surveillance, racial profiling and military commissions. But now there was in the White House a graduate from Harvard Law School and a former professor of constitutional law at the prestigious University of Chicago.

It appeared rather extraordinary that the American Government would insist on the ‘right' to require Americans and their lawyers to obtain a government ‘licence' before entering into an attorney-client relationship - simply because government officials decided on their own, with no process, to brand a citizen as a ‘global terrorist.' But nothing seems to be amazing from an Administration which has the absolute, secret power ‘to list' American citizens for ‘targeted killings'. Even more shocking is that no such suit was ever filed during the Bush/Cheney years.

Had the al-Aulaqi lawsuit proceeded it might have faced serious obstacles: both the Bush and Obama Administrations had previously invoked the power to shield illegal surveillance and torture from judicial scrutiny, first by refusing to confirm whether such a programme existed on the ground that such matters are ‘state secrets', and then by insisting that the lawsuit should be dismissed because there was no evidence that al-Aulaqi was subject to such assassination programme and thus lacked ‘standing' to sue. Further, a federal judge might have refused to restrain the President precisely on the tortuous ground of not interference in governmental discretion.

What was important in all this is that no effort had been made to indict Anwar al-Aulaqi for any crimes.

On 14 September 2010 it was reported that The Obama Administration was considering filing the first criminal charges against al-Aulaqi - unless, of course, the C.I.A. had succeeded in killing or capturing him alive in Yemen.

Still, both American and Yemeni intelligence sources, although suspecting a great deal about Anwar al-Aulaqi, admitted that they knew very little when it came to his operational role in al-Qaeda, or whether indeed al-Aulaqi had any connection with, and if so weight in, the terrorist organisation. In good substance, no evidence - as opposed to unverifiable government accusation and al-Aulaqi's bombastic claims - could be produced before a court of law.

On 25 September 2010 the Department of Justice filed a brief in the case of al-Aulaqi father's against the President, Secretary and Director, inviting the court to dismiss the lawsuit without hearing the merits of the claims.  That, too, was not surprising:  both the Bush and Obama Administrations have repeatedly insisted that their secret conduct is legal; nevertheless they urged courts not even to rule on its legality.  One of the arguments that President Obama's Department of Justice raised was for the dismissal of the lawsuit on the ground of ‘state secrets'.  In other words, not only does the President have the right to sentence Americans to death without due process or charges of any kind, but his decisions as to who will be killed and why he wants someone dead are ‘state secrets', and thus no court may adjudicate their legality. Behind ‘state secrets', President Obama would be judge, jury and executioner.

The A.C.L.U. and the C.C.R. argued that, while there are circumstances in which the government can legitimately use lethal force against civilians, in their view the authority contemplated by the Obama Administration was far broader than what the Constitution and International Law permit. Under international human rights law lethal force may be used outside of armed conflict only when there is an imminent threat of deadly attack and when lethal force is a last resort. A system in which names are added to a list through a secret bureaucratic process and stay there for months at a time does not appear to relate to imminent threats or to authorise lethal force as a last resort.

Simultaneously, the A.C.L.U. filed a Freedom of Information Act request with the Department of Justice - including the Office of Legal Counsel, of Defence, of State and the C.I.A., demanding that the government disclose basic information about the use of drones to conduct ‘targeted killings'. The lawsuit sought disclosure of the legal basis, scope, and limits on the ‘targeted killing' programme, information about internal oversight of the programme, and data about the number of civilians and non-civilians killed in drone strikes.

On 3 August 2010 the U.N. Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, Professor Philip Alston of the School of Law of New York University, formerly an Australian and incidentally the author of a Report on ‘targeted killing' submitted to the U.N. Human Rights Council in June 2010, had issued a statement. It said: “The United States' assertion of an ever-expanding but ill-defined license to commit targeted killings against individuals around the globe, without accountability, does grave damage to the international legal frameworks designed to protect the right to life. Targeted killing -- defined as the intentional, premeditated, and deliberate use of lethal force, by a state or its agents acting under color of law, against a specific individual who is not in the perpetrator's custody -- is permitted only in exceptional circumstances. Targeted killing is usually legal only in armed conflict situations when used against combatants or fighters, or civilians who directly engage in combat-like activities, and international law requires that any state that uses targeted killing must demonstrate that its actions comply with the laws of war.

To comply with its accountability obligations, the United States should disclose when and where it has authorized its forces, including the Central Intelligence Agency, to kill, the criteria for individuals who may be killed, how the U.S. Government ensures killings are legal, and what follow-up there is when civilians are illegally killed. Disclosure of these basic legal determinations is the very essence of accountability, but the United States has so far failed to meet this requirement. Instead, it has claimed a broad and novel theory that there is a 'law of 9/11' that enables it to legally use force in the territory of other States as part of its inherent right to self-defence on the basis that it is in an armed conflict with al-Qaeda, the Taliban and undefined ‘associated forces'. This expansive and open-ended interpretation of the right to self-defence threatens to destroy the prohibition on the use of armed force contained in the UN Charter, which is essential to the international rule of law. If other states were to claim the broad-based authority that the United States does, to kill people anywhere, anytime, the result would be chaos. The serious challenges posed by terrorism are undeniable, but the fact that enemies do not play by the rules does not mean that the U.S. Government can unilaterally re-interpret them or cast them aside. The credibility of the U.S. Government's claim that it has turned the page on previous wrongdoing and seeks to uphold the rule of law in its actions against alleged ‘terrorists' is called into question by its targeted killing policy.” [Emphasis added]

Needless to say, when it comes to ‘targeted killings', there is serious dispute, even within the Administration, about what the law permits. Some, like State Department Legal Adviser Harold Koh, take the position that beyond the battlefield, the U.S. can attack only those “high-value individuals” who are actually engaged in plotting attacks on the United States, and only where their threats are specific enough to allow the U.S. to claim the right to self-defence granted to all states under the U.N. Charter. The Charter permits nations to use unilateral military force only in self-defence against an armed attack, and has been interpreted to permit self-defence against threatened attacks only when they are imminent. Defence Department lawyers maintain, by contrast, that the ongoing war against al-Qaeda authorises the United States to kill any of the thousands of rank and file members not only of al-Qaeda itself, but also of al-Qaeda in the Arabian Peninsula - a Yemen-based group founded in 2009 - and of al-Shabab , a Somalia-based militant group. Both of the latter organisations were founded well after the 11 September attacks, but the Defence Department considers them fair game because it deems them to be associated with al-Qaeda.

The legal boundaries on the use of military force against terrorists are unquestionably difficult to draw. On the one hand, no one disputes that it is permissible to kill an enemy soldier on the battlefield in an ongoing armed conflict. On the other hand, absent extreme circumstances, broadly speaking, constitutional and international law bar a state from killing a human being in peacetime without a trial. Moreover, many authorities hold that capital punishment violates international human rights law. Al-Qaeda has not limited its fight to the battlefield in Afghanistan, and most agree that, as long as sovereignty concerns are met, the use of military force can follow this enemy beyond the battlefield at least in some situations. Killing Osama bin Laden in Pakistan - where the tribal areas are for all practical purposes part of the theatre of war - was the ‘justified' targeting of the enemy's leader. But are al-Qaeda in the Arabian Peninsula or al-Shabab the same ‘enemy', or merely sympathetic adherents of a terrorist philosophy? They certainly did not attack the United States on 11 September, nor are they harbouring those who did. Can the United States instrumentalities summarily execute all terrorists for fear that they might someday commit a terrorist act ?

U.S. District Judge John Bates dismissed the case brought by Nasser al-Aulaqi noting that the younger al-Aulaqi had shown no interest in pursuing a claim in an American justice system that he despised. While refusing to undertake the case, Judge Bates met the argument of Ben Wizner, the A.C.L.U. lawyer that “If the Constitution means anything, it surely means that the president does not have unreviewable authority to summarily execute any American citizen whom he concludes is an enemy of the state.” by observing: “This court recognizes the somewhat unsettling nature of its conclusion - that there are circumstances in which the executive's unilateral decision to kill a U.S. citizen overseas is ‘constitutionally committed to the political branches' and judicially unreviewable” and “.... this case presents such a circumstance.”

The ‘law of 9/11' to which Professor Alston referred in his Statement and that clearly Judge Bates took into account in dismissing the case is the Resolution known as the Authorization for Use of Military Force , which was enacted by the U.S. Congress on 18 September 2001 in the wake of the 9 September 2001 attacks. In that Resolution, invoking the War Powers Resolution , Congress stated: “That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.”

So the same President who on 21 May 2009 had proudly said: “I have studied the Constitution as a student; I have taught it as a teacher; I have been bound by it as a lawyer and legislator. I took an oath to preserve, protect and defend the Constitution as Commander-in-Chief, and as a citizen, I know that we must never - ever - turn our back on its enduring principles for expedience sake. I make this claim not simply as a matter of idealism. We uphold our most cherished values not only because doing so is right, but because it strengthens our country and keeps us safe. Time and again, our values have been our best national security asset – in war and peace; in times of ease and in eras of upheaval .” [Emphasis added], speaking at the retirement ceremony for Navy Admiral Mike Mullen, chairman of the Joint Chiefs of Staff a few hours after the ‘targeted killing' of Anwar al-Aulaqi, boasted of the role of the C.I.A. and U.S. special operations units in the killing.

Legal opinions about the legality of al-Aulaqi's execution vary - naturally, one could say. It is only natural that the A.C.L.U. Deputy Legal Director, Jameel Jaffer, should say: “U.S. airstrikes in Yemen today killed an American citizen who has never been charged with any crime.” And he added: “The targeted killing program violates both U.S. and international law. As we've seen today, this is a program under which American citizens far from any battlefield can be executed by their own government without judicial process, and on the basis of standards and evidence that are kept secret not just from the public but from the courts. The government's authority to use lethal force against its own citizens should be limited to circumstances in which the threat to life is concrete, specific and imminent. It is a mistake to invest the President - any President - with the unreviewable power to kill any American whom he deems to present a threat to the country.”

And it is understandable that the C.C.R. Executive Director, Vincent Warren, who had previously brought a challenge in federal court to the legality of the authorisation to kill an American citizen in Yemen, agreed, saying: “The assassination of Anwar al-Awlaki by American drone attacks is the latest of many affronts to domestic and international law. The targeted assassination program that started under President Bush and expanded under the Obama administration essentially grants the executive the power to kill any U.S. citizen deemed a threat, without any judicial oversight, or any of the rights afforded by our Constitution. If we allow such gross overreaches of power to continue, we are setting the stage for increasing erosions of civil liberties and the rule of law.”

Amongst academics opinions are not so uniform. Thus Professor Francis A. Boyle of the University of Illinois College of Law described the killing as “a real body  blow against the United States Constitution by the Obama administration - the murder and assassination of a U.S. citizen in gross  violation of the Fifth Amendment: ‘No person shall ...be deprived of life, liberty or property without due process of law.' The fact that this  Mafia-style  ‘hit' on a U.S. citizen was authorized by President Obama, who is a graduate of Harvard Law School and used to teach constitutional  law at the University of Chicago Law School proves how degraded and bankrupt  legal education at such elite institutions has become.”

Professor Marjorie Cohn of the Thomas Jefferson Law School at San Diego, California and a former president of the National Lawyers Guild , believes that: “Targeted assassinations violate international law. Sometimes called political assassinations or extrajudicial executions, they are unlawful and deliberate killings carried out by order of, or with the acquiescence of, a government, outside any judicial framework. They are unlawful, even in armed conflict.” Furthermore, she pointed out that a 1998 United Nations Report concluded that “extrajudicial executions can never be justified under any circumstances, not even in time of war.”

Professor Mary Ellen O'Connell of the University of Notre Dame, Indiana and vice chairperson of the American Society of International Law, was quoted as saying that President Obama had no legal authority to order the assassination of al-Aulaqi. “The United States is not involved in any armed conflict in Yemen, so to use military force to carry out these killings violates international law.” Professor O'Connell's argument turns on the question of whether the U.S. is legally at war in Yemen. And for the Administration, that is a risky proposition. The Obama Administration “relies on the vague Authorization to Use Military Force , passed in the days after 9/11, to justify its Shadow Wars against terrorists. Under its broad definition, the Authorization's writ makes Planet Earth a battlefield, legally speaking.” And further: “It is only during the intense fighting of an armed conflict that international law permits the taking of human life on a basis other than the immediate need to save life.” ... “In armed conflict, a privileged belligerent may use lethal force on the basis of reasonable necessity. Outside armed conflict, the relevant standard is absolute necessity.”

There are contrary views, however. Professor Peter M. Shane of the Ohio State Law School does not think that “there's much real doubt that the killing was lawful.  The right to use military force for national self-defense is recognized by Article 51 of the United Nations Charter.  The Authorization to Use Military Force enacted in the wake of 9/11 explicitly authorizes the President to use ‘all necessary and appropriate force against those ... organizations ... he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, ... in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.'”  And he concludes: “There is no question that this authorization allows the use of military force against al Qaeda, and it likewise seems beyond dispute that al-Awlaki sought out and played a leadership role in al Qaeda or a co-belligerent organization, continuing to both plan and call for attacks against the United States and Americans.  As a citizen of the United States, al-Awlaki may well have been entitled to some form of ‘due process' in the determination that he was actually at war with the United States; I imagine that what due process requires in cases like his, however, is a course of fact-finding within the executive branch that is stringent in its rigor and intensity.  I would be surprised to learn that such fact-finding had not taken place, especially since the facts justifying his targeting seem clear.”

In the end there is the awful dilemma of possible reciprocity . Assuming for a moment that it is alright for the American Administration to kill people like al-Aulaqi, simply of the ground that they have been proclaimed ‘enemy of the [American] people' by the National Security Council, and that on such proclamation being issued every other country would have to accept the execution as an act of normal governmental activity, then would it be equally alright for the Russian Administration to eliminate a dangerous adversary, say by planting a bomb under his bed in his residence in Paris, or to have him poisoned as happened in the case of Alexander Litvinenko , a former officer of the Russian Federal Security Service - F.S.B. and successor to the K.G.B. - who escaped prosecution in Russia and received political asylum in the United Kingdom . He wrote two books, Blowing up Russia: Terror from within and Lubyanka Criminal Group , in which he accused the Russian secret services of staging Russian apartment bombings and other terrorism acts to bring Vladimir Putin to power. On 1 November 2006 Litvinenko suddenly fell ill and was hospitalised. He died three weeks later, becoming the first confirmed victim of lethal polonium-210 -induced acute radiation syndrome . According to doctors, “Litvinenko's murder represents an ominous landmark: the beginning of an era of nuclear terrorism .”

Returning to the already mentioned 21 May 2009 quotation of President Obama, one notices his pride in asserting that “Fidelity to our values ... is the reason why America has benefited from strong alliances that amplified our power, and drawn a sharp and moral contrast with our adversaries.”

A skilful work of propaganda, often assisted by ignorant politicians and a servile press, has diffused the view that there is a difference between the West - which is axiomatically ‘civilised' - and the barbaric terrorists - as defined and re-defined from time to time. The difference is that ‘we' respect the rule of law. ‘We' live by it. What it really means is that the rule of law is to be applied ‘amongst us' - where the ‘us' may vary, occasionally. It means, in essence, the rule of law in the Anglosphere - and its hangers-on. ‘The others' - terrorists or not - are left to what justice the powerful see fit to administer through their system of law. Such redefinition of the rule of law leads to the excesses of the Bush/Cheney time and now, semble , of the Obama Administration. In this atmosphere of heightened hypocrisy positions become confused and confusing, like in a game of Thimblerig , the proverbial ‘three thimble game', in which the operator rapidly moves about three inverted thimbles, often with sleight of hand, one of which conceals a token - the other player betting on which thimble the token is under. That sort of thing appeals to people like Australians - inveterate gamblers. Much of life then boils down to mantras , received formulae , empty shells, three word games: The Magna Charta , The Habeas Corpus , rule of law , war on terror , and in Australia The Westminster System . Such vacuity encourages distaste for politics, which is shun as a series of tricks - three more words - practiced by crap-dealers with total indifference for things which really matter in life, the res publica . This indifference in turn multiplies the moral ambivalence whereby what really counts is ‘what works' - and damn the consequences. And if a confession should be extorted through torture - waterboarding, for instance, what the Bush/Cheney Gang called ‘harsh interrogation' - well, end justifies means . The Jesuits theorised the maxim and attributed it to Machiavelli ! In such a miasmatical atmosphere the ‘war on terror' turned into the ‘war of terror'. Societies which practice it have turned into a reflection of what they claim is evil in the terrorists.

President Obama called the killing of al-Aulaqi a tribute to the U.S. intelligence community and the efforts of leaders in Yemen. It is common knowledge that the more-than-three-decade-long-ruling, embattled President Ali Abdullah Saleh of Yemen is a puppet of the American Administration and that Saleh's ‘fight' against al-Qaeda is the only thread of support keeping him in office. There was at least a time link between Saleh's return to Sana'a and the killing of al-Aulaqi, and a possible do ut des : Saleh's regime might have provided assistance in the killing in return for C.I.A.'s help in suppressing the mass popular upheavals which are shaking the country. Was ‘the effort' contributed by Saleh in exchange for his ‘protected return' to Yemen and to reduce American pressure on him to leave ? For good measure, anyway, last year the Obama Administration doubled military aid to that most impoverished country - way below the condition of a client state.

President Obama is due to visit Australia next November. He has already been welcomed by both Government and Opposition in the Australian Parliament.

In a sense, he will be returning the visit of the Australian Prime Minister in March 2011. She spoke before the American Congress - the jointly gathered Senate and House of Representatives.

Lamentably, her adulatory words went beyond appreciable dignity. As the representative of a small-to-middle power like Australia, constitutionally enchained to a crude former and decaying colonial power, and incidentally the Hanoverian king from whom early Americans freed themselves was the same who sent the first convicts to Australia - a historical detail which may not be familiar to many of the addresses, as the Prime Minister nominally in charge of a quarry economically in hock - albeit in residual racist reluctance - to ascending China, as the branch manager of a militarily and politically camp follower of the United States wherever they might choose to go, the visiting Prime Minister Australia could not have presented a modern portrait of a proud, free country. But how could she have done otherwise ? This Prime Minister pretends to be a republican of leftish persuasion and an atheist. That is for sotto voce domestic consumption, where she precariously struts the scene as a ‘pragmatist' = no principles.

During her speech the Prime Minister felt bound to declare her visceral, passionate admiration for this United States, not such as one would respect from a free state but such as one would expect from a client state. No word of caring, friendly advice came from her lips, just the admiration for ‘shock and awe' and omnipotence.

Here is some of what she said at the very beginning:

“For my own generation, the defining image of America was the landing on the moon. 

My classmates and I were sent home from school to watch the great moment on television.

I'll always remember thinking that day: Americans can do anything .

Americans helped free the world of my parents' generation. 

Americans inspired the world of my own youth. 

I stand here and I see the same brave and free people today.  I believe you can do anything

still .” [Emphasis added]

She went on to reaffirm the bonds between the two countries in the pub-language by which Australia self-identifies overseas:

“In both our countries, real mates talk straight.

We mean what we say.

You have an ally in Australia.

An ally for war and peace.”

The Australian Prime Minister firmly established ‘the continuity' with her predecessor who, a very modest solicitor of short practice, had mis-interpreted the spirit and the letter of the A.NZ.US Treaty of 1951, and had plunged the country in aggressions against Afghanistan and Iraq. That predecessor had cynically abandoned the only Australian imprisoned in Guantánamo to President Bush Administration's physical and psychological abuse and then to ‘military justice'. When David Hicks gave in and was returned to Australia after almost six years of abuse, he published his story. The government of the present Prime Minister is pursuing Hicks to recover profit from the sale of his story as proceeds from crime ! The former ‘Liberal' Attorney General Ruddock had the Proceeds of Crime Act , 2002 amended to recognise U.S. military commissions, a move designed to anticipate any attempt by Hicks to profit from his experience. However, that provision was later removed after the U.S. Congress passed legislation recognising the commissions. The present ‘Labor' Attorney General McClelland maintained ‘the continuity'.

It goes without saying that, from her arrival to the Prime Ministership, Ms. Gillard has shown a very ‘smooth continuity' with the position of her predecessor, much as President Obama did with the activity of the Bush/Cheney Administration.

In her pledge of renewed allegiance, the Australian Prime Minister went on to praise General Petraeus - “a resolute and courageous commander”, she told Congress. .In Afghanistan, she said, “Australia will stand firm with our ally the United States. Our friends understand this. Our enemies understand this too.”

She thought that it was necessary to honour the memory of President Reagan: “He remains a great symbol of American optimism.” she said. It is true that she long ago declared having little interest in foreign affairs. She should now establish for good that her studies of law at the University of Melbourne took her away from any interest in recent history. Then one could explain the homage to President Reagan. Reagan, for goodnessake - he of the Iran-Contra Affair, he of the ‘greed is good' folly !

Then the Australian Prime Minister passed on to the ordinary topics of trade and commerce, and concluded:

“The eyes of the world are still upon you. 

Your city on a hill cannot be hidden. 

Your brave and free people have made you the masters of recovery and reinvention. 

As I stand in this cradle of democracy I see a nation that has changed the world and known

remarkable days.

I firmly believe you are the same people who amazed me when I was a small girl by landing

on the moon. 

On that great day I believed Americans could do anything.

I believe that still.

You can do anything today .” [Emphasis added]

On that Prime Minister Gillard was and remains correct. Looking at it from afar, one sees again ‘the continuity': the Obama Department of Justice has refused to investigate Bush/Cheney officials for torture and other gross abuses of power, constitutional violations, and war crimes - in which, let it be said, Australia is complicit. The Obama Administration has continued many of the same policies of the Bush/Cheney crowd: warrantless surveillance of United States citizens, denial of Habeas corpus , extraordinary rendition, maintenance of ‘black sites', harassment and legal action against whistleblowers. President Obama has surpassed his predecessor in his plans to assassinate American citizens - repugnant in their behaviour as much as one may see them but entitled to their constitutional rights and, instead, killed - without charge, without due process.

Dr. Venturino Giorgio Venturini, came from, and has remained in the wake of, the Italian Resistance. Formerly an avvocato at the Court of Appeal of Bologna, he taught, administered, and advised on, law in four continents, ‘retiring' in 1993 from Monash University. Author of eight books and about 100 articles and essays for learned periodicals and conferences, since his ‘retirement', Dr. Venturini has been Senior Associate in the School of Political and Social Inquiry at Monash; he is also an Adjunct Professor at the Institute for Social Research at Swinburne University, Melbourne. george.venturini@arts.monash.edu.au .




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