From war to more war

Originally published January 23, 2017 Al Jazeera/InDepth as “Trump is likely to inherit Obama’s war legacy”.  This is the unedited version


From war to more war

Experience tells us it matters little whether a liberal democrat or an autocratic republican sits in the White House.

Well, it’s over … and good riddance. What began with a purchased Nobel Peace Prize and a lecture to the Middle East, under the then omnipotent eyes of Hosni Mubarak, has ended with a parting bang … yet another round of massive US air strikes in Libya and Syria.

Forgive my cynicism, but if history is, in fact, a fair guidepost of what comes to be, Barack Obama’s parting shots at so-called “jihadi” camps most likely did little more than slaughter civilians … thereby enticing 10 times as many others to pick up a gun or a bomb and strike back, however possible, wherever feasible.

Eight years ago the world held its collective breath for what would prove to be an all-too-brief moment with the election of a self-professed anti-war “liberal” to the most powerful and deadly office in the world.

In October 2002, then Senator Obama, an orator of rare talent with keen mind and extraordinary youthful vigour and promise, announced he was “opposed to dumb wars”. He was going to be different. He said so. He lied.

Wartime president

Well … not quite. He was different. After all, he’s the only two-term president in US history who has waged war every single day of his eight years in office. Indeed, not to be outdone by the hawkish George W Bush, Obama conducted air strikes on seven countries: Afghanistan, Iraq, Pakistan, Somalia, Yemen, Libya and Syria. That’s three more than Bush bombed.

During his two terms, our peace president ordered a total of 563 “special” air strikes, largely carried out by drones, that targeted Pakistan, Somalia and Yemen, in particular, compared to “but” 57 such strikes under Bush.

While impossible to know for sure, the total number of those killed by these attacks during attempts to target three dozen or so “terrorists” – including US citizens afforded no due process – apparently resulted in the deaths of almost 1,200 civilians . As a parting peace gesture, Obama left behind “Special Operation Forces” deployed to more than 130 nations; that’s 70 percent of the world’s countries.

On the other hand, let’s give some credit where credit is due. Obama did slap around Benjamin Netanyahu to the tune of $38bn, largely for weapons, before refusing to veto the toothless settlement resolution in the United Nations.

War means profit, and that’s something that brings a huge smile to the face of the new president. The US invasions of Iraq and Afghanistan alone have earned the American weapons industry trillions of dollars and counting.

Saudi Arabia, which has obtained more than $100bn worth of weapons during the Obama administration, heard its “concerns” about how US-made weapons were being used in Yemen before proceeding to purchase another 153 tanks, and hundreds of machine guns in a deal worth $1.15bn.

Egypt also felt the pinch of Obama’s pacifist hand when he required that it make “credible progress towards democracy” before releasing billions in military aid frozen since Abdel Fattah el-Sisi came to power after the military coup that toppled the elected government of President Mohamed Morsi. We all know how well Egypt has been progressing in its steady slither towards democracy.

Perpetual warfare?

Perhaps, in a strange sort of way, the election of Donald Trump, consumed by the chase of money and women in that order, may at day’s end be the best thing in years that has happened for the prospects of peace in the Middle East.

Unlike Obama – who has spent his lifetime wanting to be loved and who figured the best way to earn it was by proving just how tough he could be – Trump has spent his life proudly ensuring there’s just nothing there to love and, seemingly, could not care less about it.

Maybe, when it comes to war, the shrinks are right: those who need to prove just how tough they can be are far more dangerous than those who just don’t give a damn. Hope surely springs eternal.

But wait a minute; these guys in the Trump cabinet seem awfully familiar, don’t they? Isn’t that retired General James “Mad Dog” Mattis wearing an Armani suit? Wasn’t he the general who lost his tour of duty because Obama found him too hawkish on Iran as he pushed the military to punish it and its allies through more covert actions to capture and kill Iranian operatives and interdict its warships? Didn’t he only recently oversee combat operations throughout the Middle East?

And that other guy in the corner – the one looking awfully nervous sitting there without his chest full of medals – can that be retired Marine General John Kelly? Wasn’t he in charge of Guantanamo; you, know, the guy that challenged Obama any time the president had the temerity to bring up the subject of closing it? Didn’t he lose a son to combat in Afghanistan against the Taliban?

How about that third guy? He looks an awful lot like retired Army Lieutenant-General Michael Flynn, whom Obama forced out of the Defense Intelligence Agency (the Pentagon’s version of the CIA) because of his description of Islam as a “cancer” and saying “fear of Muslims is rational”. What’s the worry with him as National Security Adviser? No problem.

Does anyone really think that Trump can – or cares to – reign in a collection of misanthrope generals with likely a century or more of battle scars … those warriors that see peace as very much a pastime of the meek … who see moderation as soft, quiet as weak, and talk but prelude to attack ? Of course not.

Profits and more

What of Trump himself? Though he’s gone on record as being opposed to regime change and committed to allies assuming more of their own military costs, he’s often expressed a hawkish stand on the Middle East, specifically with regard to the Islamic State of Iraq and the Levant (ISIL), and sees other threats, real and imagined, against the US almost everywhere.

That translates to money – big money. Indeed, Trump has called for tens of thousands of additional troops; a Navy of 350 ships; a significantly larger Air Force; an anti-missile, space-based Star Wars-style programme; and an acceleration of the Pentagon’s $1 trillion “modernisation” programme for its nuclear arsenal.

War means profit, and that’s something that brings a huge smile to the face of the new president. The US invasions of Iraq and Afghanistan alone have earned the American weapons industry trillions of dollars and counting.

It’s not by accident that in the days following Trump’s election, stock values for military contractors soared: Lockheed Martin – up 4.8 percent; Northrop Grumman – up 5.1 percent; Raytheon – up 6.2 percent; General Dynamics – up 4.1 percent; L-3 Communications – up 5.4 percent; Textron – up 2.2 percent; Boeing – up 0.76 percent; Huntington Ingalls – up 6.5 percent.

While hope may spring eternal, reality flows from bitter experience. Here, that experience should tell us that it matters little whether a liberal democrat or an autocratic republican sits in the White House.

In the history of the US, colonialism has always found a “welcome” host in the Middle East, with or without its age old network of surrogates. It knows of no such restraint as political party or allegiance.

Profit and military madness make for a bad combination indeed. That marriage will continue as eight years of unabated war will surely grow to 12.


When US Congress chases votes and not the law

When read broadly, the legislation will generate future unforeseen applications of the so called 9/11 law.

Originally published in Al Jazeera In Depth 02 Oct 2016 12:48 GMT |

The United States Congress’ historic vote to defy the president’s veto, thereby passing into law the Justice Against Sponsors of Terrorism Act (JASTA), may spark new hope for victims of state violence in general.

By an overwhelming margin in both houses of the legislature, American senators and congressional representatives have defied Barack Obama, while playing to the public mood,in creating legislation that for the first time permits civil lawsuits in US trial courts to proceed against Saudi government officials, by the families of the victims of the September 11 attacks, as well as property owners.

While tailored narrowly, the broader meaning may have future applications to various struggles, including the fight for Palestinian justice.

Before now, foreign governments, their employees and agents deemed to be liable in some capacity – even an indirect one – for the deaths of Americans or the destruction of American property avoided any lawsuits by invoking the concept of “sovereign immunity”.

Blanket protection

Federal courts here simply refused such cases, rejecting them on the basis of a blanket protection for governmental actions by foreign powers.

In practice, this stripped the courts of jurisdiction over damage suits by citizens, and mostly established a “balance of litigation” whereby foreign governments reciprocally denied their citizens the right to sue the United States in their home courts.

Conflicts between nations were left to the diplomats, without injured parties messing up the picture. For 15 years, 9/11 victims’ families – emboldened by the many striking connections, real and postulated, between the al-Qaeda hijackers and Saudi officials – have banged up against sovereign immunity, as an impassable barrier to getting what they perceived as a fair hearing for their damage claims.

“The new legislation … apparently strips the Saudis, and perhaps other foreign powers, of sovereign immunity in cases where terrorism has occurred in the United States, and can be tied to an overseas governmental actor.”

I experienced first-hand the barrier of sovereign immunity in ground-breaking litigation I filed in a US court in 2002, seeking damages for a class of Palestinian-Americans injured, kidnapped or killed, or who lost property, in Israeli terror attacks against civilians in the occupied territories and Lebanon in the preceding decades.

On behalf of these US citizens, we used elements of the Alien Torts Claims Act, anti-piracy statutes and various human rights conventions to sue Israel and the United States, as well as arms manufacturers.

Some of our plaintiffs had lost their homes, some lost internal organs and some their lives. Ultimately, all the defendants in the case were ruled protected by sovereign or qualified immunity, and the case did not proceed much further then past preliminary stages.

The new legislation – sharply opposed by Obama and the diplomatic establishment, which fears an onslaught of retaliatory suits against the United States – apparently strips the Saudis, and perhaps other foreign powers, of sovereign immunity in cases where terrorism has occurred in the United States, and can be tied to an overseas governmental actor.

Yet many aspects of this new legal position remain to be understood, raising interesting questions.

Americans seeking damages

Because the Equal Protection clause of the US constitution extends rights equally to all citizens, we can expect many other attempts by Americans seeking damages against foreign powers to invoke the new law in its fullest legislative intent, even though it was written specifically to aid the 9-11 families.

How trial judges handle those cases will require close examination, case by case, on how “terrorism” is defined, and how one defines “United States territory”.

For example, if “terrorism” can be taken to mean the deliberate use of violence by state or non-state actors against civilian, non-combatants with the intent of causing death or injury or to affect a government policy, then Israel’s periodic violent onslaughts against population centres in Gaza and the West Bank which include US citizens certainly fits the definition.

Yet this violence would still be protected in US courts by immunity, as happening outside the US.

Yet conceivably, unprotected foreign state violence against a US citizen might occur in cases where US territory were defined by a trial judge as extending to embassies and offices, customs desks at foreign airports, US airline flights, military bases overseas, and other potential “gray areas” where US legal authority attaches.

One can imagine, say, a Pakistani-American shot in the eye with a rubber bullet while at the US consulate in Karachi to pick up a new passport, as government troops fire deliberately at peaceful demonstrators outside the gates – such a plaintiff in a US court would clearly want to invoke the new JASTA advantage and try her luck with the judge.

Limited jurisdiction

If enough such cases made their way through US trial courts, it is conceivable that the legislative intent of the Act – to give US citizens their day in court, to make their case for recovering damages against a foreign power that has used violence against US citizens on liberally-defined “US ground” – might be judicially construed to grant limited jurisdiction to cases broadly interpreted as within the spirit of the law.

For example, if US government development funds are used to build a medical centre for Palestinians in a West Bank town and staffed and operated exclusively by US citizens, including Palestinians, and in the course of an Israeli air raid destroying the centre, a US citizen is killed – would that citizen’s family have a viable claim against Israel under a broad application of the intent of JASTA in a US Court?

While it is diverting, from a lawyer’s perspective, to imagine scenarios in which the benefits of JASTA help more people than simply those 9/11 families desirous of a Saudi settlement, it is very unclear just how this new law will deploy over time.

The Obama administration has vigorously opposed this legislation for this very reason, and for the even greater danger it poses in exposing US military, diplomatic and civilian personnel to reciprocal lawsuits in foreign courts by aggrieved parties overseas.

While the JASTA law does not extend justice to all victims of state violence against civilians, it points the way towards a future judicial setting in which such violence – be it committed by the US, or Israel, or any totalitarian state – may one day be held to account.

Stanley L Cohen is a lawyer and human rights activist who has done extensive work in the Middle East and Africa.