Professor Marjorie Cohn

On Extra Judicial Executions, Obama's Illegal Assassinations and the US Government

Download audio file 16 August 2011, 13:18

Interview with Marjorie Cohn, a professor of law at Thomas Jefferson School in San Diego and the editor of The United States and Torture: Interrogation, Incarceration and Abuse.

Can you give us a quick definition of what exactly constitutes an extrajudicial execution?

It’s a targeted assassination. Sometimes it’s called a political assassination, and it’s an unlawful and deliberate killing carried out by order of or with the acquiescence of a government, and it’s outside of any judicial framework. In other words, there is no court that is deciding that it is lawful or not.

Where would cases such as this be prosecuted or can they be prosecuted?

There are national laws. Assassinating is not allowed under international law, and that’s very clear. In a 1998 report, United Nation’s Special Rapporteur on extrajudicial summary or arbitrary executions said that extrajudicial executions can never be justified under any circumstances, not even in time of war. In the US, assassinations were considered to be unlawful, especially explicitly since President Gerald Ford issued an executive order banning assassinations. And every president since Gerald Ford has renewed that ban on assassinations until George W. Bush, who signed an executive order basically authorizing assassinations in the US. Even though Bill Clinton, when he was president, signed that ban on assassinations, he actually tried to kill Osama bin Laden in Afghanistan but narrowly missed him. And, of course, we know that Barack Obama did give the order to assassinate Osama bin Laden, and that order was carried out. Obama signed the order authorizing the assassination of Osama bin Laden.

Did the so-called war on terror release the US from the law in this regard?

No, not at all. The US is still bound by international law. Much of the international law is also incorporated in the US Constitution. Yet, under the so-called war on terror, there have been many illegal things that have been done by the US government – first, by the George W. Bush Administration and then by the Obama Administration. And I say the “so-called war on terror” because terrorism is a tactic, it is not an enemy. You don’t declare war on a tactic. And yet, under the guise of the so-called law on terror, many laws have been violated by both of these administrations.

I hate to do this, but, to compare the George Bush Administration and Obama’s presidency, how far away from Bush, do you think, Obama has gone? Or has he pretty much continued the same policies?

I think that, unfortunately, Obama has continued a lot of the illegal policies of the Bush Administration and, in some instances, has taken them even further. For example, even George W. Bush didn’t explicitly authorize indefinite detention – holding someone for ever with no charges. And yet Obama signed an order authorizing indefinite detention. Both administrations used what we call the “state’s secret privilege”, and the Obama Administration has continued to use it to try to prevent people who have been tortured from litigating their cases in court, from trying to get relief in court for the torture.

Are executions only ordered against foreign nationals?

Obama tried to carry out the assassination of a US citizen, Anwar al-Awlaki, who has not been charged with any crime in the US, and there was an unmanned drone attack in Yemen, aimed at al-Awlaki, missed him but killed two people “believed to be al-Qaeda militants.” Here you have another thing that the Obama Administration has done, which goes far beyond what even Bush did, that is stepping up the use of these unmanned drone attacks in Pakistan, in Yemen, in Somalia. And there was a report that has just come out from the Bureau of Investigative Journalism that states that 168 children have been killed in the seven years of CIA drone strikes in Pakistan. That accounts for 44% of the minimum figure of 385 civilians, who are reported to have been killed by these drone attacks. I have seen higher numbers as well. And this is something that continues. There are also illegal assassinations in sovereign countries that many times ended up killing civilians. And, even if they were to kill so-called al-Qaeda militants, this would also violate the law, just like the targeted assassination of Osama bin laden violated the law, because, unless you are in the middle of a pitched battle, where the laws of war apply, you have to arrest people and bring them to trial. Even the Nazi leaders were brought to trial, and, of course, they committed some of the most notorious crimes ever known to man. After the Holocaust, Winston Churchill wanted to just execute the Nazi leaders without trial, but the US government opposed the extrajudicial executions of Nazi officials, who had committed genocide against millions of people, and Justice Robert Jackson, a Supreme Court Justice who took a leave from the Supreme Court to service Chief Prosecutor at Nuremberg, told President Harry Truman “We could execute or otherwise punish the Nazi leaders without a hearing. But undiscriminating executions or punishments without definite findings of guilt, fairly arrived at, would not set easily on the American conscience or be remembered by children with pride.” But, eventually, I think these people will be brought to justice by other countries. Universal jurisdiction is a well-used, well-settled doctrine. In fact, the US has used it. So, I think, that eventually, these people will be brought to justice. But not likely in the US.

NATO Wantonly Slaughtering Civilians in Libya

Download audio file September 01, 2011

I’d like to ask you a few questions about the situation in Libya. What are your views on the future of Gaddafi? What do you think will happen with him? And what is NATO’s role in the region legally? Do you think they’ve overstepped their mandate?

Yes, the Security Council Resolution 1973 does not authorize regime change. And yet everything that NATO and certainly the US have done is moving in that direction. In fact, some months ago, shortly after the invasion of Libya by NATO, President Obama, Nicolas Sarkozy and David Cameron – all wrote an op-ed in the International Herald Tribune that said that NATO force would fight in Libya until Gaddafi is gone, even though this resolution does not sanction regime change. And now the rebels are saying that allowing Gaddafi’s family to stay in Algeria is, what they call, an ’act of aggression’. So, they are clearly out to get Gaddafi and his family.

The rebels made a statement today that they want to capture Gaddafi, try him and execute him.

Yes, when you put somebody on trial you don’t pronounce the sentence until the trial is over. Their saying they want to try and execute him sounds like a kangaroo court to me. Gaddafi, if at all, should be tried by an international tribunal that is objective and is not going to engage in reprisals. Certainly, Gaddafi is not a great guy but there are massacres of civilians documented by NATO, in other words, NATO has conducted massacres, including one earlier this month in Majer, Libya, where family members, eye-witnesses and Libyan government officials said that NATO’s air strikes at Majer killed 85 people, including 33 children, 32 women and 20 men. Reporters and visitors saw 30 of the bodies at a local morgue, including a mother and two children. We don’t know how many civilians have been killed by the NATO bombs, even though the stated purpose of the NATO intervention was to protect civilians.

What can the international community or people in general do to see that justice is done?

I think that publicizing what is really happening is the most important thing – and that’s what you and I are doing right now. The Daily Beast publication in the US came out with a piece today by John Barry, saying that the US military is conducting a secret war in Libya and has helped NATO with everything from munitions to surveillance aircraft, that the US military has spent $1 billion and played a far larger role in Libya than it has acknowledged and that there is an emerging covert intervention strategy, deploying far more forces than the Obama Administration wants to advertize. I think it’s important to get at why the US and its NATO allies are so intent on getting rid of Gaddafi. Libya played an important role in financing the African Bank, which allowed African nations to avoid dealing with the World Bank and the International Monetary Fund. Libya also financed an African Telecommunications System that saved African countries hundreds of millions of dollars, allowing them to bypass western-controlled networks. He also raised the standard of living. I’m not saying he is a great guy, but Libya is the largest oil producer in Africa, the twelfth largest in the world, and its oil resources are very important for NATO’s European allies. The manager of the rebel-controlled Arabian Gulf Oil Company, Libya’s largest oil producer, said: “We don’t have a problem with western countries. But we may have some political issues with Russia, China and Brazil, because those last three countries are not involved in the NATO mission in Libya.” And a British official told The Economist that NATO’s involvement in Libya means that: "Now we own it." So, there is going to be a lot of instability because of this organization that NATO has recognized, the National Transitional Council, which evidently doesn’t necessarily support the rebels in Libya. I think you are going to see a lot of chaos with a lot of covert, behind-the-scenes choreographing of what’s going to happen in Libya. And, quite frankly, I’d be surprised if they do actually find Gaddafi, if not just to kill him the way they killed Saddam Hussein and Osama bin Laden. If you look at the events leading up to the NATO invasion, they talked about relying on this responsibility to protect doctrine. It’s not enshrined in any international treaty, it’s not part of customary international law. But it says that the international community through the United Nations has the responsibility to use appropriate diplomatic, humanitarian and other peaceful means in accordance with Chapters 6 and 8 of the UN Charter to help protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity. Chapter 6 of the UN Charter requires parties to seek a solution peacefully by negotiation. And yet they did not do that. Instead of pursuing an immediate ceasefire, immediate military action was taken. And the military force being used by NATO exceeds the bounds of “all necessary measures”, authorization and this resolution 1973. After the passage of the resolution Libya immediately offered to accept international monitors and Gaddafi offered to step down and leave Libya, but those offers were immediately rejected. And another thing that is very interesting is the double standard in the use of military force to protect civilians in Bahrain, where NATO force was being used to quell anti-government protest because that’s where the US Fifth Fleet is stationed. And The Asia Times reported that before the invasion of Libya the US made a deal with Saudi Arabia where the Saudis would invade Bahrain to help put down the anti-democracy protesters and Saudi Arabia would enlist the support of the Arab League for a no-fly zone over Libya. The Arab League support for a no-fly zone effectively neutralized opposition from China and Russia to Security Council Resolution 1973. But, as I said, NATO has gone far beyond a no-fly zone.


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