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By Dave Lindorff
Helsinki—Mikko Kautto, impeccable in a blue suit and open-collared shirt, was sitting at a table in the cafeteria of the modern Centre for Pensions building on the outskirts of Finland’s capital city, answering questions about the operation of his Nordic country’s retirement system.
By John Grant
Lara Logan is a formidable TV reporter who has covered wars and other stories at significant risk. She’s supremely confident and has a powerful journalistic institution supporting her. But as a would-be ethical journalist, she seems to rely too much on her sexual allure and to be too tight with elite elements of the US military establishment.
A Yemeni man who lost two members of his family to a US drone strike one year ago has asked President Obama to meet with him when he visits Washington DC this week.
Faisal bin Ali Jaber lost his brother in law, a preacher who publicly opposed al Qaeda, and nephew, a local policeman, in a strike that took place in the Hadhramout region on August 29, 2012.
Just days before he was killed, Salim bin Ali Jaber had preached at the local mosque against al Qaeda. He was killed, along with police officer Waleed bin Ali Jaber, in a strike which may have been targeted at three strangers who visited the village demanding to speak to Salem following his sermon.
Mr Jaber is visiting Washington DC from Thursday November 14 to Wednesday November 20 in order to hold meetings with members of Congress and address conferences of academics and activists regarding his experiences. His visa has been sponsored by peace group Code Pink, at whose conference he is speaking on Saturday.
Writing to President Obama on behalf of Mr Jaber, his legal representative, Cori Crider, an attorney at human rights charity Reprieve said:
“As well as killing innocent Yemenis, Faisal believes the drone strikes are counter-productive. His village is peaceful. They bore the US no ill-will, quite the contrary as can be seen from Salim’s brave stand five days before he died. Yet today the villagers associate the US with the brutal murder of two of their own.
“Faisal is visiting the US as a representative of the victims’ families to bring attention to the true cost of the drone war, not only in terms of Yemeni lives and but in terms of America’s reputation in the region. I know that you are very busy, but I hope that you might make time to meet him, in order to understand the cost of the US’ drone programme for those on the ground in Yemen.”
What’s more important: Security or freedom?: The Big Question the National Security State isn’t Asking
By Dave Lindorff
So National Security Agency Director Keith B. Alexander, who, along with his boss, Director of National Intelligence James R. Clapper Jr., thinks that “if you can collect it, you should collect it,” now is asking whether it might not be such a good idea in the case of spying on the citizens of US allies like Germany, France, Spain et al.
By John Grant
President Obama finds himself under fire on two disparate fronts these days, both for the botched rollout of his signature health care program and for the secret spying on allied heads of state.
- Peter Baker, The New York Times
It’s one of those elegant solutions to a mix of problems where you wonder why no one thought of it before.
From Business Insider
This will not go over well for the 2009 Nobel Peace Prize winner.
According to the new book “Double Down,” in which journalists Mark Halperin and John Heilemann chronicle the 2012 presidential election, President Barack Obama told his aides that he’s “really good at killing people” while discussing drone strikes.
Peter Hamby of The Washington Post noted the moment in his review of the book.
The reported claim by the commander-in-chief is as indisputable as it is grim.
Obama oversaw the 2009 surge in Afghanistan, 145 Predator drone strikes in NATO’s 2011 Libya operations, the May 2011 raid that killed Osama bin Laden, and drone strikes that killed the Pakistani Taliban leader and a senior member of the Somali-based militant group al-Shabab this week.
Under Obama U.S. drone operators began practicing “signature strikes,” a tactic in which targets are chosen based on patterns of suspicious behavior and the identities of those to be killed aren't necessarily known. (The administration counts all “military-age males” in a strike zone as combatants.)
Obama has also embraced the expansion of capture/kill missions by Joint Special Operations Command (JSOC) after it developed into the primary counterterrorism tool of the Bush administration.
One JSOC operator told investigative journalist Jeremy Scahill, author of “Dirty Wars: The World Is A Battlefield,” that global operations under Obama became “harder, faster, quicker — with the full support of the White House.”
Scahill, who also made a “Dirty Wars” documentary, told NBC News that Obama will “go down in history as the president who legitimized and systematized a process by which the United States asserts the right to conduct assassination operations around the world.”
So although President Obama has proven to be “really good at killing people,” the demonstration has not necessarily been noble.
By Alfredo Lopez
What a week! Shortly after Secretary of State John Kerry admitted that maybe our government had gone "too far" in its surveillance programs, the Washington Post dropped another Edward Snowden bombshell demonstrating that it is going a whole lot farther than we knew.
By Dave Lindorff
A revealing page-one article in today’s New York Times (“Tap on Merkel Provides Peek a Vast Spy Net”) reports on how the NSA’s global spying program, dating back at least to early in the Bush/Cheney administration, was vacuuming up the phone conversations (and no doubt later the internet communications) of not just leaders like German Chancellor Angela Merkel, but opposition leader Merkel before her party took power in Germany.
On January 21, 2013, Barack Obama was inaugurated for his second term as president of the United States. Just as he had promised when he began his first campaign for president six years earlier, he pledged again to turn the page on history and take U.S. foreign policy in a different direction. “A decade of war is now ending,” Obama declared. “We, the people, still believe that enduring security and lasting peace do not require perpetual war.”
Much of the media focus that day was on the new hairstyle of First Lady Michelle Obama, who appeared on the dais sporting freshly trimmed bangs, and on the celebrities in attendance, including hip-hop mogul Jay-Z and his wife, Beyoncé, who performed the national anthem. But the day Obama was sworn in, a U.S. drone strike hit Yemen. It was the third such attack in that country in as many days. Despite the rhetoric from the president on the Capitol steps, there was abundant evidence that he would continue to preside over a country that is in a state of perpetual war.
In the year leading up to the inauguration, more people had been killed in U.S. drone strikes across the globe than were imprisoned at Guantánamo. As Obama was sworn in for his second term, his counterterrorism team was finishing up the task of systematizing the kill list, including developing rules for when U.S. citizens could be targeted. Admiral William McRaven had been promoted to the commander of the United States Special Operations Command (SOCOM), and his Special Ops forces were operating in more than 100 countries across the globe.
After General David Petraeus’s career was brought to a halt as a result of an extramarital affair, President Obama tapped John Brennan to replace him as director of the CIA, thus ensuring that the Agency would be headed by a seminal figure in the expansion and running of the kill program. After four years as Obama’s senior counterterrorism adviser, Brennan had become known in some circles as the “assassination czar” for his role in U.S. drone strikes and other targeted killing operations.
When Obama had tried to put Brennan at the helm of the Agency at the beginning of his first term, the nomination was scuttled by controversy over Brennan’s role in the Bush-era detainee program. By the time President Obama began his second term in office, Brennan had created a “playbook” for crossing names off the kill list. “Targeted killing is now so routine that the Obama administration has spent much of the past year codifying and streamlining the processes that sustain it,” noted the Washington Post.
Brennan played a key role in the evolution of targeted killing by “seeking to codify the administration’s approach to generating capture/kill lists, part of a broader effort to guide future administrations through the counterterrorism processes that Obama has embraced,” the paper added. “The system functions like a funnel, starting with input from half a dozen agencies and narrowing through layers of review until proposed revisions are laid on Brennan’s desk, and subsequently presented to the president.”
Obama’s counterterrorism team had developed what was referred to as the “Disposition Matrix,” a database full of information on suspected terrorists and militants that would provide options for killing or capturing targets. Senior administration officials predicted that the targeted killing program would persist for “at least another decade.” During his first term in office, the Washington Post concluded, “Obama has institutionalized the highly classified practice of targeted killing, transforming ad-hoc elements into a counterterrorism infrastructure capable of sustaining a seemingly permanent war.”
Redefining “Imminent Threat”
In early 2013, a Department of Justice “white paper” surfaced that laid out the “Lawfulness of a Lethal Operation Directed Against a U.S. Citizen.” The government lawyers who wrote the 16-page document asserted that the government need not possess specific intelligence indicating that an American citizen is actively engaged in a particular or active terror plot in order to be cleared for targeted killing. Instead, the paper argued that a determination from a “well-informed high level administration official” that a target represents an “imminent threat” to the United States is a sufficient basis to order the killing of an American citizen. But the Justice Department’s lawyers sought to alter the definition of “imminent,” advocating what they called a “broader concept of imminence.”
They wrote, “The condition that an operational leader present an ‘imminent’ threat of violent attack against the United States does not require the United States to have clear evidence that a specific attack on U.S. persons will take place in the immediate future.” The government lawyers argued that waiting for a targeted killing of a suspect “until preparations for an attack are concluded, would not allow the United States sufficient time to defend itself.” They asserted that such an operation constitutes “a lawful killing in self-defense” and is “not an assassination.”
Jameel Jaffer of the ACLU called the white paper a “chilling document,” saying that “it argues that the government has the right to carry out the extrajudicial killing of an American citizen.” Jaffer added, “This power is going to be available to the next administration and the one after that, and it’s going to be available in every future conflict, not just the conflict against al-Qaeda. And according to the [Obama] administration, the power is available all over the world, not just on geographically cabined battlefields. So it really is a sweeping proposition.”
In October 2002, as the Bush administration prepared to invade Iraq, Barack Obama gave the first major speech of his national political career. The then-state senator came out forcefully against going to war in Iraq, but he began his speech with a clarification. “Although this has been billed as an anti-war rally, I stand before you as someone who is not opposed to war in all circumstances… I don’t oppose all wars.” Obama declared, “What I am opposed to is a dumb war. What I am opposed to is a rash war.” During his first campaign for president, Obama had blasted the Bush administration for fighting the wrong war -- Iraq -- and repeatedly criticized his opponent, Senator John McCain, for not articulating how he would take the fight to Osama bin Laden and al-Qaeda.
As his first term in office wound down, the overwhelming majority of U.S. military forces had been withdrawn from Iraq and plans for a similar drawdown in Afghanistan in 2014 were being openly discussed. The administration had succeeded in convincing the American public that Obama was waging a smarter war than his predecessor. As he ran for reelection, Obama was asked about charges from his Republican opponents that his foreign policy was based on appeasement. “Ask Osama bin Laden and the 22 out of 30 top al-Qaeda leaders who have been taken off the field whether I engage in appeasement,” Obama replied. “Or whoever is left out there, ask them about that.”
As the war on terror entered a second decade, the fantasy of a clean war took hold. It was a myth fostered by the Obama administration, and it found a ready audience. All polls indicated that Americans were tired of large military deployments in Iraq and Afghanistan and the mounting U.S. troop casualties that came with them. A 2012 poll found that 83% of Americans supported Obama’s drone program, with 77% of self-identified liberal Democrats supporting such strikes. The Washington Post–ABC News poll determined that support for drone strikes declined “only somewhat” in cases where a U.S. citizen was the target.
President Obama and his advisers seldom mentioned the drone program publicly. In fact, the first known confirmation of the use of armed drones by the president came several years into Obama’s first term. It was not in the form of a legal brief or a press conference, but rather on a Google+ “Hangout” as the president took questions from the public. Obama was asked about his use of drones. “I want to make sure that people understand actually drones have not caused a huge number of civilian casualties,” Obama said. “For the most part, they have been very precise, precision strikes against al-Qaeda and their affiliates. And we are very careful in terms of how it’s been applied.”
He rejected what he called the “perception” that “we’re just sending in a whole bunch of strikes willy-nilly” and asserted that “this is a targeted, focused effort at people who are on a list of active terrorists, who are trying to go in and harm Americans, hit American facilities, American bases, and so on.” Obama added: “It is important for everybody to understand that this thing is kept on a very tight leash. It’s not a bunch of folks in a room somewhere just making decisions. And it is also part and parcel of our overall authority when it comes to battling al-Qaeda. It is not something that’s being used beyond that.”
Michael Boyle, a former adviser in the Obama campaign’s counterterrorism experts group and a professor at LaSalle University, said that one of the reasons the administration was “so successful in spinning the number of civilian casualties” was the use of signature strikes and other systems for categorizing military-aged males as legitimate targets, even if their specific identities were unknown. “The result of the ‘guilt by association’ approach has been a gradual loosening of the standards by which the U.S. selects targets for drone strikes,” Boyle charged. “The consequences can be seen in the targeting of mosques or funeral processions that kill non-combatants and tear at the social fabric of the regions where they occur.” No one, he added, “really knows the number of deaths caused by drones in these distant, sometimes ungoverned, lands.”
Using drones, cruise missiles, and Special Ops raids, the United States has embarked on a mission to kill its way to victory. The war on terror, launched under a Republican administration, was ultimately legitimized and expanded by a popular Democratic president. Although Barack Obama’s ascent to the most powerful office on Earth was the result of myriad factors, it was largely due to the desire of millions of Americans to shift course from the excesses of the Bush era.
Had John McCain won the election, it is difficult to imagine such widespread support, particularly among liberal Democrats, for some of the very counterterrorism policies that Obama implemented. As individuals, we must all ask whether we would support the same policies -- the expansion of drone strikes, the empowerment of Joint Special Operations Command (JSOC), the use of the State Secrets Privilege, the use of indefinite detention, the denial of habeas corpus rights, the targeting of U.S. citizens without charge or trial -- if the commander in chief was not our candidate of choice.
But beyond the partisan lens, the policies implemented by the Obama administration will have far-reaching consequences. Future U.S. presidents -- Republican or Democratic -- will inherit a streamlined process for assassinating enemies of America, perceived or real. They will inherit an executive branch with sweeping powers, rationalized under the banner of national security.
In 2012, a former constitutional law professor was asked about the U.S. drone and targeted killing program. “It’s very important for the president and the entire culture of our national security team to continually ask tough questions about ‘Are we doing the right thing? Are we abiding by the rule of law? Are we abiding by due process?’” he responded, warning that it was important for the United States to “avoid any kind of slippery slope into a place where we’re not being true to who we are.”
That former law professor was Barack Obama.
The creation of the kill list and the expansion of drone strikes “represents a betrayal of President Obama’s promise to make counterterrorism policies consistent with the U.S. constitution,” charged Boyle. Obama, he added, “has routinized and normalized extrajudicial killing from the Oval Office, taking advantage of America’s temporary advantage in drone technology to wage a series of shadow wars in Afghanistan, Pakistan, Yemen, and Somalia. Without the scrutiny of the legislature and the courts, and outside the public eye, Obama is authorizing murder on a weekly basis, with a discussion of the guilt or innocence of candidates for the ‘kill list’ being resolved in secret.” Boyle warned:
“Once Obama leaves office, there is nothing stopping the next president from launching his own drone strikes, perhaps against a different and more controversial array of targets. The infrastructure and processes of vetting the ‘kill list’ will remain in place for the next president, who may be less mindful of moral and legal implications of this action than Obama supposedly is.”
In late 2012, the ACLU and the New York Times sought information on the legal rationale for the kill program, specifically the strikes that had killed three U.S. citizens -- among them 16-year-old Abdulrahman Awlaki. In January 2013, a federal judge ruled on the request. In her decision, Judge Colleen McMahon appeared frustrated with the White House’s lack of transparency, writing that the Freedom of Information Act (FOIA) requests raised “serious issues about the limits on the power of the Executive Branch under the Constitution and laws of the United States, and about whether we are indeed a nation of laws, not of men.”
She charged that the Obama administration “has engaged in public discussion of the legality of targeted killing, even of citizens, but in cryptic and imprecise ways, generally without citing to any statute or court decision that justifies its conclusions.” She added, “More fulsome disclosure of the legal reasoning on which the administration relies to justify the targeted killing of individuals, including United States citizens, far from any recognizable ‘hot’ field of battle, would allow for intelligent discussion and assessment of a tactic that (like torture before it) remains hotly debated. It might also help the public understand the scope of the ill-defined yet vast and seemingly ever-growing exercise.”
Ultimately, Judge McMahon blocked the release of the documents. Citing her legal concerns about the state of transparency with regard to the kill program, she wrote:
“This Court is constrained by law, and under the law, I can only conclude that the Government has not violated FOIA by refusing to turn over the documents sought in the FOIA requests, and so cannot be compelled by this court of law to explain in detail the reasons why its actions do not violate the Constitution and laws of the United States. The Alice-in-Wonderland nature of this pronouncement is not lost on me; but after careful and extensive consideration, I find myself stuck in a paradoxical situation in which I cannot solve a problem because of contradictory constraints and rules -- a veritable Catch-22. I can find no way around the thicket of laws and precedents that effectively allow the Executive Branch of our Government to proclaim as perfectly lawful certain actions that seem on their face incompatible with our Constitution and laws, while keeping the reasons for their conclusion a secret.”
How to Make Enemies and Not Influence People
It is not just the precedents set during the Obama era that will reverberate into the future, but also the lethal operations themselves. No one can scientifically predict the future consequences of drone strikes, cruise missile attacks, and night raids. But from my experience in several undeclared war zones across the globe, it seems clear that the United States is helping to breed a new generation of enemies in Somalia, Yemen, Pakistan, Afghanistan, and throughout the Muslim world.
Those whose loved ones were killed in drone strikes or cruise missile attacks or night raids will have a legitimate score to settle. In an October 2003 memo, written less than a year into the U.S. occupation of Iraq, Donald Rumsfeld framed the issue of whether the United States was “winning or losing the global war on terror” through one question: “Are we capturing, killing, or deterring and dissuading more terrorists every day than the madrassas and the radical clerics are recruiting, training, and deploying against us?”
More than a decade after 9/11, that question should be updated. At the end of the day, U.S. policymakers and the general public must all confront a more uncomfortable question: Are our own actions, carried out in the name of national security, making us less safe or more safe? Are they eliminating more enemies than they are inspiring? Boyle put it mildly when he observed that the kill program’s “adverse strategic effects… have not been properly weighed against the tactical gains associated with killing terrorists.”
In November 2012, President Obama remarked that “there’s no country on Earth that would tolerate missiles raining down on its citizens from outside its borders.” He made the statement in defense of Israel’s attack on Gaza, which was launched in the name of protecting itself from Hamas missile attacks. “We are fully supportive of Israel’s right to defend itself from missiles landing on people’s homes and workplaces and potentially killing civilians,” Obama continued. “And we will continue to support Israel’s right to defend itself.” How would people living in areas of Yemen, Somalia, or Pakistan that have been regularly targeted by U.S. drones or missile strikes view that statement?
Toward the end of President Obama’s first term in office, the Pentagon’s general counsel, Jeh Johnson, gave a major lecture at the Oxford Union in England. “If I had to summarize my job in one sentence: it is to ensure that everything our military and our Defense Department do is consistent with U.S. and international law,” Johnson said. “This includes the prior legal review of every military operation that the Secretary of Defense and the President must approve.”
As Johnson spoke, the British government was facing serious questions about its involvement in U.S. drone strikes. A legal case brought in the United Kingdom by the British son of a tribal leader killed in Pakistan alleged that British officials had served as “secondary parties to murder” by providing intelligence to the United States that allegedly led to the 2011 strike. A U.N. commission was preparing to launch an investigation into the expanding kill program, and new legal challenges were making their way through the U.S. court system. In his speech, Johnson presented the U.S. defense of its controversial counterterror policies:
“Some legal scholars and commentators in our country brand the detention by the military of members of al-Qaeda as ‘indefinite detention without charges.’ Some refer to targeted lethal force against known, identified individual members of al-Qaeda as ‘extrajudicial killing.’
“Viewed within the context of law enforcement or criminal justice, where no person is sentenced to death or prison without an indictment, an arraignment, and a trial before an impartial judge or jury, these characterizations might be understandable.
“Viewed within the context of conventional armed conflict -- as they should be -- capture, detention, and lethal force are traditional practices as old as armies.”
The Era of the Dirty War on Terror
In the end, the Obama administration’s defense of its expanding global wars boiled down to the assertion that it was in fact at war; that the authorities granted by the Congress to the Bush administration after 9/11 to pursue those responsible for the attacks justified the Obama administration’s ongoing strikes against “suspected militants” across the globe -- some of whom were toddlers when the Twin Towers crumbled to the ground -- more than a decade later.
The end result of the policies initiated under President Bush and continued and expanded under his Democratic successor was to bring the world to the dawn of a new age, the era of the Dirty War on Terror. As Boyle, the former Obama campaign counterterrorism adviser, asserted in early 2013, the U.S. drone program was “encouraging a new arms race for drones that will empower current and future rivals and lay the foundations for an international system that is increasingly violent.”
Today, decisions on who should live or die in the name of protecting America’s national security are made in secret, laws are interpreted by the president and his advisers behind closed doors, and no target is off-limits, including U.S. citizens. But the decisions made in Washington have implications far beyond their impact on the democratic system of checks and balances in the United States.
In January 2013, Ben Emmerson, the U.N. special rapporteur on counterterrorism and human rights, announced his investigation into drone strikes and targeted killing by the United States. In a statement launching the probe, he characterized the U.S. defense of its use of drones and targeted killings in other countries as “Western democracies… engaged in a global [war] against a stateless enemy, without geographical boundaries to the theatre of conflict, and without limit of time.” This position, he concluded, “is heavily disputed by most States, and by the majority of international lawyers outside the United States of America.”
At his inauguration in January 2013, Obama employed the rhetoric of internationalism. “We will defend our people and uphold our values through strength of arms and rule of law. We will show the courage to try and resolve our differences with other nations peacefully -- not because we are naive about the dangers we face, but because engagement can more durably lift suspicion and fear,” the president declared. “America will remain the anchor of strong alliances in every corner of the globe; and we will renew those institutions that extend our capacity to manage crisis abroad, for no one has a greater stake in a peaceful world than its most powerful nation.”
Yet, as Obama embarked on his second term in office, the United States was once again at odds with the rest of the world on one of the central components of its foreign policy. The drone strike in Yemen the day Obama was sworn in served as a potent symbol of a reality that had been clearly established during his first four years in office: U.S. unilateralism and exceptionalism were not only bipartisan principles in Washington, but a permanent American institution. As large-scale military deployments wound down, the United States had simultaneously escalated its use of drones, cruise missiles, and Special Ops raids in an unprecedented number of countries. The war on terror had become a self-fulfilling prophecy.
The question all Americans must ask themselves lingers painfully: How does a war like this ever end?
Jeremy Scahill is national security correspondent for the Nation magazine and author of the New York Times bestsellers Blackwater: The Rise of the World’s Most Powerful Mercenary Army and most recently Dirty Wars: The World Is a Battlefield (both published by Nation Books). He is also the subject, producer, and writer of the film Dirty Wars, an official selection of the 2013 Sundance Film Festival, where it won the US documentary cinematography prize, now available on DVD. This essay is the epilogue to his book Dirty Wars.
Follow TomDispatch on Twitter and join us on Facebook or Tumblr. Check out the newest Dispatch book, Nick Turse’s The Changing Face of Empire: Special Ops, Drones, Proxy Fighters, Secret Bases, and Cyberwarfare.
(c) 2013 Jeremy Scahill. Excerpted from Dirty Wars: The World Is A Battlefield (Nation Books). Used by permission of the author and publisher.
By John Grant
To: Jofi Joseph, Washington DC
Dear Mr Joseph:
I read of your firing as a national security adviser in the White House thanks to your “snarky” tweeting about various White House officials above you in the pecking order.
US may be committing robotic war crimes: Two Human Rights Groups Blast US for Drone Killing Campaigns
By Dave Lindorff
Last week President Obama was largely successful at blacking out from the American public word that Nobel Peace Prize Malala Yousafzai, the courageous Pakistani advocate of girls’ education nearly killed by Taliban gunmen a year ago, used a photo-op invitation to the White House to ask the president to halt to his drone killings of Pakistanis. But Obama cannot so easily silence the condemnations today of his remote drone “Murder, Inc.” program by Amnesty International and Human Rights Watch.
The United States is loosening controls over military exports, in a shift that former U.S. officials and human rights advocates say could increase the flow of American-made military parts to the world's conflicts and make it harder to enforce arms sanctions.
Cross-Posted from DeSmogBlog
In a major ruling that's flown under the radar, the U.S. Court of Appeals for the Tenth Circuit - based in Denver, Colorado - decided not to grant the Sierra Club and Clean Energy Future Oklahoma a temporary injunction on the construction of the southern half of Transcanada's Keystone XL tar sands export pipeline.
The Court's decision hinged on an "injury" balancing test: Would Transcanada be hurt more financially from receiving an injunction? Had it lost, it would be stuck with one until Sierra Club, et al receive a U.S. District Court decision on the legality of the U.S. Army Corps of Engineers' decision to grant Transcanada a Nationwide Permit 12 (NWP 12) for construction of what's now called the Gulf Coast Pipeline in February 2012.
Or would ecosystems suffer even greater and potentially incalculable damage from the 485-mile, 700,000 barrels per day pipeline crossing 2,227 streams?
In a 2-1 decision, the Court sided with Transcanada, and by extension, the U.S. Army Corps of Engineers. The Court ruled, "the threatened environmental injuries were outweighed by the financial harm that the injunction would cause Transcanada."
Commenting on the case brought by Sierra Club, et al, Judge Jerome A. Holmes and Judge Paul J. Kelly, Jr. - appointees of President George W. Bush and President George H.W. Bush, respectively - shot down the arguments sharply.
U.S. Appeals Court for the 10th Circuit Judge Jerome A. Holmes; Photo Credit: The White House
Holmes and Kelly ruled that Sierra Club, et al failed to show how the pipeline will have a significant environmental impact despite the fact it's been deemed a "fuse to the biggest carbon bomb on the planet" by retired NASA climate scientist James Hansen.
Construction of Keystone XL's southern half - subject of significant grassroots activism by the Tar Sands Blockade and others - is now nearly complete. Tar sands dilbit is slated to begin to flow through it in early 2014.
NWP 12: "New Normal" for Tar Sands Pipeline Approval
After protestors succeeded initially in delaying Keystone XL, Big Oil has chosen a "new normal" stealth approval method: the non-transparent NWP 12.
This avoids the more strenuous National Environmental Protection Act permitting process overseen by the Environmental Protection Agency (EPA), which requires public hearings and public comments for major federal pipeline projects. NEPA compels the EPA to take comments into account in response throughout the Environmental Impact Statement phase, allowing robust public participation in the process.
Sierra Club Staff Attorney Doug Hayes explained in an interview with DeSmogBlog that NWP 12 is for utility projects with up to a half an acre of stream or wetland impacts, and has never been used for tar sands pipelines before Keystone XL's southern half.
The southern half of the pipeline was approved via Executive Order by President Barack Obama in March 2012, directly after Obama gave a speech in front of a Cushing, OK pipeyard.
President Barack Obama speaks in Cushing, OK in March 2013; Photo Credit: White House
"The Corps is abusing the nationwide permit program. Nationwide permits were intended to permit categories of projects with truly minimal impacts, not tar sands oil pipelines crossing several states," said Hayes.
Utilizing tricky legal loopholes, Transcanada used NWP 12 to push through Keystone XL's southern half in February 2012, calling each half acre segment of Keystone XL's southern half a "single and complete project." The Army Corps of Engineers agreed despite the fact that Transcanada refers to the pipeline at-large as the "Gulf Coast Pipeline project."
"What the Corps is doing is artificially dividing up these massive pipelines, treating them as thousands of individual projects to avoid environmental review," Hayes explained. "In this case, there were 2,227 crossings of federal waterways, so the Corps has treated the Gulf Coast Pipeline as 2,227 'single and complete projects,' each of which qualifies under NWP 12."
Sierra Club Staff Attorney Doug Hayes; Photo Credit: Sierra Club
Why, I asked Hayes?
"The Corps artificially treats these massive pipelines as thousands of individual projects so as to qualify under NWP 12 and avoid NEPA compliance."
NWP 12 has also been utilized by Enbridge for the Flanagan South Pipeline, a 600-mile, 600,000 barrels per day pipeline set to shuttle tar sands crude from Flanagan, IL to Cushing, OK, crossing over 2,000 streams. That pipeline is scheduled to begin operations in mid-2014, demonstrating how NWP 12 is the "new normal" way to fast-track domestic tar sands pipelines.
Dissent: Laws Violated, Economic Harm Transcanada's Fault
Perhaps the biggest irony of the Appeals Court decision is that Judges Holmes and Kelly barely grappled with the central issue of the legal challenge to begin with: using NWP 12 rather than going through the NEPA process.
"The majority opinion avoided addressing the legal questions that are central to this lawsuit - whether the Corps violated the law in permitting this pipeline - and instead it was based on how much money a delay in construction would cost TransCanada," said Hayes.
Though Judges Holmes and Kelly stayed mum about these issues, dissenting U.S. District Court for the District of Colorado Judge William Martínez - an Obama appointee - did not, pulling no punches in doing so.
U.S. District Court for the District of Colorado Judge William Martínez; Photo Credit: Judgepedia
"Given the totality of the circumstances...I believe the...Gulf Coast Pipeline required a comprehensive NEPA analysis," Martínez wrote.
"There are also no specific findings in support of the Corps' conclusion that the Gulf Coast Pipeline, as a whole, would have minimal cumulative impact. The failure to consider the cumulative effects of all of the water crossings involved in the Gulf Coast Pipeline violates the terms of NWP 12, and, therefore, the approval of the use of NWP 12 for construction of the Gulf Coast Pipeline violated the law."
Though Judges Holmes and Kelly grappled with the issue of water crossings - belittling the amount of water Keystone XL's southern half would cross over - Martínez said it's about much more than just water.
There is "real and signifcant harm caused by the actual construction of the pipeline, including the clearing of trees and vegetation, removing topsoil, filling wetlands, building access roads, and clearing an eighty-five foot construction right-of-way for the length of the pipeline," he stated.
Hayes agreed with this assessment, pointing to examples of things the Judges simply ignored in their assessment.
"[T]he court's balancing test ignored the host of environmental impacts associated with this pipeline, including the risks of tar sands oil spills," said Hayes.
"Remember that the 2010 tar sands pipeline spill in Michigan is still being cleaned up, and so far has cost over a billion dollars. It's a bit of a Catch-22 to say that this is all just about a few acres of wetlands loss, when the whole point of this lawsuit is that the Corps avoided analyzing any of the pipeline's environmental impacts as required by NEPA."
Lastly, Martínez put the onus on Transcanada for its economic decision-making.
"Transcanada chose to incur its economic harm by entering into contracts for services before the Gulf Coast Pipeline was approved, even in light of the controversial nature of the Pipeline," said Martínez (emphasis his).
U.S. District Court Decision Forthcoming, Activism Persists
Sierra Club, et al now await a summary judgment from the U.S. District Court for the District of Colorado on whether Keystone XL failed the dictates of NEPA. It's a key decision, Hayes says, because "a ruling in our favor could prevent the Corps from doing this in the future."
While they await this lower court judgment, activists continue efforts to fend off these pipeline projects.
"This decision yet again demonstrates why direct action is necessary. The permitting process for Keystone XL's southern leg was illegal, yet regulators, inspectors, Obama, and the courts are failing to do what is necessary to protect the people and ecosystems threatened by this toxic pipeline," said Ron Seifert, a Tar Sands Blockade spokesman.
"If all the branches of government are so helplessly captured by industry that they will do nothing to stave off climate change, then the people must rise up and take the defense of the environment into their own hands."
President Pivot prepares to screw the old and infirm: Whatever Happened to ‘No negotiations’ with Debt Ceiling ‘Hostage Takers’
By Dave Lindorff
President Obama ran for president promising change. What his backers didn’t realize was that he wasn’t talking about changing America for the better. He was talking about changing his position whenever he found himself in a confrontation with Republicans. There’s a reason that beginning with Obama’s 2008 campaign, and on through the past five years of his presidency, we have gotten used to a presidential behavior called “pivoting.”
“Congressman, you have a noon meeting with a group of peace activists who want to talk with you about your position on Syria. And I should warn you that there are some TV vans down in the parking lot.”
By Linn Washington, Jr.
On the first day of the federal government shut-down, as hundreds of tourists were turned away from the shuttered Liberty Bell and other fabled sites within the Independence National Historical Park in downtown Philadelphia, Richard Dyost stood near the building housing the Bell and received a big laugh.
By Dave Lindorff
By John Grant
All we are saying is give peace a chance
- John Lennon
Whether war or cooperation is the more dominant trait of humanity is one of the oldest questions in human discourse. There are no satisfying answers for either side exclusively, which seems to suggest the answer is in the eternal nature of the debate itself.
ThisCantBeHappening! just into its fourth year of publication, has learned that we have won our fourth Project Censored Award, this time for Dave Lindorff's article Incidents raise suspicions on motive: Killing of Journalists by US Forces a Growing Problem, published in TCBH! on Nov. 22, 1012.
By Linn Washington, Jr.
Imagine U.S. House Speaker John Boehner blasted on weed.
Given Boehner’s teary-eyed trait, he’d probably cry uncontrollably when high on pot alternating his crocodile tears with hysterical laughter…perhaps even laughing at some of that dumb shi-tuff he and his GOP colleagues constantly do on Capitol Hill.
By Dave Lindorff
I no longer recognize my country.
Back in 1997, after two years living in China, and five more living in Hong Kong, during which time, as a correspondent for Business Week magazine, I slipped in and out of China regularly as a journalist to report on developments there, I got a good dose of life in a totalitarian society. When I alit from the plane in Philadelphia where my family and I were about to start a new chapter of our lives, I remember feeling like a big weight had been lifted off my chest.
by Dennis Loo “Sovereignty cannot be a shield for tyrants to commit wanton murder, or an excuse for the international community to turn a blind eye to slaughter.”Obama said this in his address before the UN General Assembly on September 24, 2013. Another, more transparent way of saying what Obama said is this: “The foundational principle of the UN Charter and the Nuremberg Tribunal is wrong: wars launched upon a country that has not attacked you first is not the supreme international crime.”
by Debra Sweet Wrapped in some benign sounding words about prosperity, peace, and “shifting from a perpetual war footing,” the core of Barack Obama’s message to the United Nations yesterday made clear that if the U.N. doesn’t pass a resolution the U.S. wants against Syria, he still could execute a strike.
Here’s the take-home:
1. President Obama's opening lines at the U.N. on Tuesday looked down on people who would think to settle disputes with war. Obama was disingenuously avoiding the fact that earlier this month he sought to drop missiles into a country to "send a message" but was blocked by the U.S. Congress, the U.N., the nations of the world, and popular opposition -- after which Obama arrived at diplomacy as a last resort.
2. "It took the awful carnage of two world wars to shift our thinking." Actually, it took one. The second resulted in a half-step backwards in "our thinking." The Kellogg-Briand Pact banned all war. The U.N. Charter re-legalized wars purporting to be either defensive or U.N.-authorized.
3. "[P]eople are being lifted out of poverty," Obama said, crediting actions by himself and others in response to the economic crash of five years ago. But downward global trends in poverty are steady and long pre-date Obama's entry into politics. And such a trend does not exist in the U.S.
4. "Together, we have also worked to end a decade of war," Obama said. In reality, Obama pushed Iraq hard to allow that occupation to continue, and was rejected just as Congress rejected his missiles-for-Syria proposal. Obama expanded the war on Afghanistan. Obama expanded, after essentially creating, drone wars. Obama has increased global U.S. troop presence, global U.S. weapons sales, and the size of the world's largest military. He's put "special" forces into many countries, waged a war on Libya, and pushed for an attack on Syria. How does all of this "end a decade of war"? And how did his predecessor get a decade in office anyway?
5. "Next year, an international coalition will end its war in Afghanistan, having achieved its mission of dismantling the core of al Qaeda that attacked us on 9/11." In reality, Bruce Riedel, who coordinated a review of Afghanistan policy for President Obama said, "The pressure we've put on [jihadist forces] in the past year has also drawn them together, meaning that the network of alliances is growing stronger not weaker." (New York Times, May 9, 2010.)
6. "We have limited the use of drones." Bush drone strikes in Pakistan: 51. Obama drone strikes in Pakistan: 323.
7. "... so they target only those who pose a continuing, imminent threat to the United States where capture is not feasible." On June 7, 2013, Yemeni tribal leader Saleh Bin Fareed told Democracy Now that Anwar al Awlaki could have been turned over and put on trial, but "they never asked us." In numerous other cases it is evident that drone strike victims could have been arrested if that avenue had ever been attempted. A memorable example was the November 2011 drone killing in Pakistan of 16-year-old Tariq Aziz, days after he'd attended an anti-drone meeting in the capital, where he might easily have been arrested -- had he been charged with some crime. This weeks drone victims, like all the others, had never been indicted or their arrest sought.
8. "... and there is a near certainty of no civilian casualties." There are hundreds of confirmed civilian dead from U.S. drones, something the Obama administration seems inclined to keep as quiet as possible.
9. "And the potential spread of weapons of mass destruction casts a shadow over the pursuit of peace." In reality, President Obama is not pursuing peace or the control of such weapons or their reduction and elimination in all countries, only particular countries. And the United States remains the top possessor of weapons of mass destruction and the top supplier of weapons to the world.
10. "[In Syria, P]eaceful protests against an authoritarian regime were met with repression and slaughter. ... America and others have worked to bolster the moderate opposition." In fact, the United States has armed a violent opposition intent on waging war and heavily influenced if not dominated by foreign fighters and fanatics.
11. "[T]he regime used chemical weapons in an attack that killed more than 1,000 people, including hundreds of children." Maybe, but where's the evidence? Even Colin Powell brought (faked) evidence.
12. "How should we respond to conflicts in the Middle East?" This suggests that the United States isn't causing conflicts in the Middle East or aggravating them prior to altering its position and "responding." In fact, arming and supporting brutal governments in Bahrain, Egypt, Yemen, Jordan, Israel, etc., is behavior that could do a great deal of good simply by ceasing.
13. "How do we address the choice of standing callously by while children are subjected to nerve gas, or embroiling ourselves in someone else's civil war?" That isn't a complete list of choices, as Obama discovered when Russia called Kerry's bluff and diplomacy became a choice, just as disarmament and de-escalation and pressure for a ceasefire are choices. Telling Saudi Arabia "Stop arming the war in Syria or no more cluster bombs for you," is a choice.
14. "What is the role of force in resolving disputes that threaten the stability of the region and undermine all basic standards of civilized conduct?" Force doesn't have a role in civilized conduct, the most basic standard of which is relations without the use of force.
15. "[T]he international community must enforce the ban on chemical weapons." Except against Israel or the United States.
16. "... and Iranians poisoned in the many tens of thousands." This was good of Obama to recognize Iran's suffering, but it would have been better of him to recall where Iraq acquired some of its weapons of mass destruction.
17. "It is an insult to human reason -- and to the legitimacy of this institution -- to suggest that anyone other than the regime carried out this attack." Really? In the absence of evidence, skepticism isn't reasonable for this Colin-Powelled institution, the same U.N. that was told Libya would be a rescue and watched it become a war aimed at illegally overthrowing a government? Trust us?
18. "Now, there must be a strong Security Council Resolution to verify that the Assad regime is keeping its commitments, and there must be consequences if they fail to do so." Meaning war? What about the U.N.'s commitment to oppose war? What about the United States' violation of its commitments to destroy the chemical weapons sitting in Kentucky and Colorado? "Consequences" for the U.S. too?
19. "I do not believe that military action -- by those within Syria, or by external powers -- can achieve a lasting peace." Yet, the U.S. government is shipping weapons into that action.
20. "Nor do I believe that America or any nation should determine who will lead Syria ... Nevertheless, a leader who slaughtered his citizens and gassed children to death cannot regain the legitimacy to lead a badly fractured country." The Syrians should decide their own fate as long as they decide it the way I tell them to.
21. "[N]or does America have any interest in Syria beyond the well-being of its people, the stability of its neighbors, the elimination of chemical weapons, and ensuring it does not become a safe-haven for terrorists." That's funny. Elsewhere, you've said that weakening Syria would weaken Iran.
22. "[W]e will be providing an additional $340 million [for aid]." And vastly more for weapons.
23. "We will ensure the free flow of energy from the region to the world. Although America is steadily reducing our own dependence on imported oil..." That first remarkably honest sentence is only honest if you don't think about what "free flow" means. The second sentence points to a real, if slow, trend but obscures the fact that only 40% of the oil the U.S. uses comes from the U.S., which doesn't count much of the oil the U.S. military uses while "ensuring the free flow." Nor is switching to small domestic supplies a long-term solution as switching to sustainable energy would be.
24. "But when it's necessary to defend the United States against terrorist attacks, we will take direct action." In Libya? Syria? Where does this make any sense, as U.S. actions generate rather than eliminate terrorism? Michael Boyle, part of Obama's counter-terrorism group during his 2008 election campaign, says the use of drones is having "adverse strategic effects that have not been properly weighed against the tactical gains associated with killing terrorists ... . The vast increase in the number of deaths of low-ranking operatives has deepened political resistance to the US programme in Pakistan, Yemen and other countries." (The Guardian, January 7, 2013.) Why is Canada not obliged to bomb the world to "defend against terrorist attacks"?
25. "Just as we consider the use of chemical weapons in Syria to be a threat to our own national security ..." We who? How? Congress just rejected this ludicrous claim. Ninety percent of this country laughed at it.
26. "[W]e reject the development of nuclear weapons that could trigger a nuclear arms race in the region, and undermine the global non-proliferation regime." By Israel which has done this, or by Iran which all evidence suggests has not?
27. "We deeply believe it is in our interest to see a Middle East and North Africa that is peaceful and prosperous," we just choose to work against that deep belief and to sell or give vast quantities of weapons to brutal dictatorships and monarchies.
28. "Iraq shows us that democracy cannot be imposed by force." This could have been true had the U.S. attempted to impose democracy.
29. "Iran's pursuit of nuclear weapons." Iran's what?
30. "Arab-Israeli conflict." That's a misleading way of naming the conflict between the government of Israel and the people it ethnically cleanses, occupies, and abuses -- including with chemical weapons.
31. "[A]n Iranian government that has ... threatened our ally Israel with destruction." It hasn't. And piling up the lies about Iran will make Iran less eager to talk. Just watch.
32. "We are not seeking regime change." That's not what Kerry told Congress, in between telling Congress just the opposite. Also, see above in this same speech: "a leader who slaughtered his citizens and gassed children to death cannot regain the legitimacy...."
33. "We insist that the Iranian government meet its responsibilities under the Nuclear Non-Proliferation Treaty and UN Security Council resolutions." Among Iran, the U.S., and Israel, it's Iran that seems to be complying.
34. "We are encouraged that President Rouhani received from the Iranian people a mandate to pursue a more moderate course." More moderate than what? Threatening to destroy Israel and creating nukes?
35. "[T]heir own sovereign state." There's nowhere left for Palestine to create such a separate state.
36. "Israel's security as a Jewish and democratic state." Both, huh?
37. "When peaceful transitions began in Tunisia and Egypt ... we chose to support those who called for change" ... the minute everyone else was dead, exiled, or imprisoned.
38. "[T]rue democracy as requiring a respect for minority rights, the rule of law, freedom of speech and assembly, and a strong civil society. That remains our interest today." Just not in our own country and certainly not in places that buy some of the biggest piles of our weapons.
39. "But we will not stop asserting principles that are consistent with our ideals, whether that means opposing the use of violence as a means of suppressing dissent," and if you don't believe me, ask the Occupy movement -- Happy Second Birthday, you guys! I SHUT YOU DOWN, bwa ha ha ha ha.
40. "This includes efforts to resolve sectarian tensions that continue to surface in places like Iraq, Syria and Bahrain." One liberated, one targeted, and one provided with support and weaponry and former U.S. police chiefs to lead the skull cracking.
41. "[A] vacuum of leadership that no other nation is ready to fill." All criminal outrages should have a vacuum of leadership. "Who would bomb countries if we don't do it?" is the wrong question.
42. "Some may disagree, but I believe that America is exceptional -- in part because we have shown a willingness, through the sacrifice of blood and treasure, to stand up not only for our own narrow self-interest, but for the interests of all." When was that? The United States certainly comes in at far less than exceptional in terms of per-capita humanitarian aid. Its humanitarian bombing that Obama has in mind, but it's never benefitted humanity.
43. "And in Libya, when the Security Council provided a mandate to protect civilians, America joined a coalition that took action. Because of what we did there, countless lives were saved, and a tyrant could not kill his way back to power." The White House claimed that Gaddafi had threated to massacre the people of Benghazi with "no mercy," but the New York Times reported that Gaddafi's threat was directed at rebel fighters, not civilians, and that Gaddafi promised amnesty for those "who throw their weapons away." Gaddafi also offered to allow rebel fighters to escape to Egypt if they preferred not to fight to the death. Yet President Obama warned of imminent genocide. What Gaddafi really threatened fits with his past behavior. There were other opportunities for massacres had he wished to commit massacres, in Zawiya, Misurata, or Ajdabiya. He did not do so. After extensive fighting in Misurata, a report by Human Rights Watch made clear that Gaddafi had targeted fighters, not civilians. Of 400,000 people in Misurata, 257 died in two months of fighting. Out of 949 wounded, less than 3 percent were women. More likely than genocide was defeat for the rebels, the same rebels who warned Western media of the looming genocide, the same rebels who the New York Times said "feel no loyalty to the truth in shaping their propaganda" and who were "making vastly inflated claims of [Gaddafi's] barbaric behavior." The result of NATO joining the war was probably more killing, not less. It certainly extended a war that looked likely to end soon with a victory for Gaddafi.
44. "Libya would now be engulfed in civil war and bloodshed." No, the war was ending, and Libya IS engulfed in bloodshed. In March 2011, the African Union had a plan for peace in Libya but was prevented by NATO, through the creation of a "no fly" zone and the initiation of bombing, to travel to Libya to discuss it. In April, the African Union was able to discuss its plan with Libyan President Muammar al-Gaddafi, and he expressed his agreement. NATO, which had obtained a U.N. authorization to protect Libyans alleged to be in danger but no authorization to continue bombing the country or to overthrow the government, continued bombing the country and overthrowing the government.
45. [S]overeignty cannot be a shield for tyrants to commit wanton murder." Says a man who reads through a list of potential murder victims on Tuesdays and ticks off the ones he wants murdered.
After decades US still has huge poison gas stash: Washington Demands Syria Destroy Chemical Weapons Lickety-Split
By Dave Lindorff
The US is demanding, in negotiations at the UN, that all Syrian chemical weapons, stocks and production facilities be eliminated by June 30 of next year. This has an element of hypocrisy, because the US itself has been incredibly slow about eliminating its own stocks of chemical weapons.
US Secretary of State John Kerry has referred to Syria as having one of the largest chemical stockpiles in the world. But the US and Russia both still have stocks of chemicals many times as large. Syria’s neighbor Israel, which refuses to admit it has the weapons and has yet to ratify the treaty banning them, is suspected of also having a large arsenal.
By Dave Lindorff
Syrian civilians and children should count themselves lucky that mass opposition in the US, the UK and much of the rest of the world to the idea of a US bombing blitz aimed at punishing the Syrian government for allegedly using Sarin gas in an attack on a Damascus neighborhood forced the US to back off and accept a Russian deal to get rid of Syria’s chemical weapons.