The Obama presidency, Israel, national security and human rights

Ensnared by events, Barack Obama ended up as a Democratic president who endorsed indefinite armed conflict and targeted killings.

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August 29, 2016 13:00
Obama

Obama takes dig at "The Donald" in Correspondents' dinner speech. (photo credit: screenshot)

 
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US President Barack Obama’s dreams of undoing the Bush administration’s war on terror were upended by a rogue piece of underwear which ensnared him.

That is a gross oversimplification, but according to New York Times reporter Charlie Savage’s already classic book, Power Wars, the December 25, 2009 attempted airplane underwear bombing of Northwest Airlines Flight 253 by Nigerian Umar Farouk Abdulmutallab was a distinct turning point and hard reality lesson for the relatively new president finishing his first year in office. After the attempted underwear bombing, he was constantly on the defensive for being weak on fighting terror and reversed several planned liberal moves.

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What were the main themes of Obama’s presidency in the realm of national security and human rights? How did these themes impact Israeli policy in the same overlapping areas?

There are many books by former top officials and analysts on every side of the spectrum.

But as Obama’s presidency winds down, Savage’s 700 page book, with access to a staggering 150 current and former top officials, including executive branch lawyers normally terrified of the press, paints a picture like no other.

The following account is not a book review and is also informed by this author’s years of interviews, gathered information and observation (some from the inside of the Israeli security establishment), but a number of the major themes come directly or indirectly from the book, simply because there is no other work quite like it for the historical record.

The short answer to the above key questions is that although Obama the candidate sought to completely undo and reform Bush’s war on terror policies, Obama the new president, confronted by real national security threats like Abdulmutallab, ended up continuing or merely tweaking many Bush policies in his early years. For some on the Right in the US, this was a sort of vindication.

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However, for much of the Left in the US, this was betrayal. For Israel, which enjoyed somewhat of a blanket of immunity for its own war on terror policies during the Bush years, this was welcome news.

Yet, as his presidency drew on, Obama, sometimes at a snail’s pace, undid or amended more and more of his war on terror policies to get them closer to his more liberal views.

For many on the Left in the US, while this was somewhat welcome, it was often too little too late. For the Israeli government, under Prime Minister Benjamin Netanyahu, essentially throughout Obama’s presidency, this was often unwelcome as it meant Israel either needed to also change course, or stick out again as a unique case as it had before September 11, 2001.

Former IDF international law division head Col. (res.) Daniel Reisner likes to tell the story about how when Israel started fighting against the second intafada as if it was armed conflict (looser rules for using live ammunition for one thing), initially the US was very against.

Suddenly, after 9/11, he said that the US “got it” and started to use a lot of similar tactics for fighting terror.

In some ways the above account is not recognizable from conventional debates of Obama on Israel and the Middle East. These debates tend to focus on being pro or anti the Iran nuclear deal, pro or anti his withdrawal of US forces from Iraq, pro or anti his policy negotiating between Israel and the Palestinians and pro or anti his actions and non-actions as the region was taken by the storms of the Arab Spring, the Arab Winter and ISIS.

But focusing on Obama’s policies on: defining the war on terror and targeted killings, torture/enhanced interrogation of detainees, Guantanamo military terrorist trials (technically called commissions), indefinite/administrative detention, investigating war crimes allegations, spying versus privacy and US intervention in Libya, in some ways we can cut through the politicized chatter to see more clearly what kind of a president he was when it came to national security and human rights.

Focusing on these categories and their overlap with Israel on similar issues also enables a more nuanced view of the impact of US national security policies on Israeli national security from 2009-2016.

The war on terror and targeted killings, including ISIS

When is the US at war? How indefinitely long can a war, like the “war on terror” run?  How did the Obama administration delineate its lines of being at war when it used the ongoing war rationale to justify targeting Osama Bin Laden on Pakistani soil, drone strikes in Pakistan, Yemen and elsewhere generally and air strikes and drone strikes on ISIS in Iraq and Syria?

The answer is that Obama has decided to prolong an indefinite war on terrorists like al-Qaeda, ISIS and some others, even as he has eschewed the phrase “war on terror” because of its broader connotations and connection to the Bush years.

There is no declared war. Not even a verbal phrasing of war. But the US is justifying military actions in a range of countries on the legal basis of ongoing armed conflict or war.

Even as Obama announced that the war in Afghanistan was over in 2014 and al-Qaida has been largely replaced as the greatest non-state terror actor threatening the US and the West, US drone strikes and other military actions in Afghanistan, Iraq, Syria and elsewhere continue, and have even increased against ISIS.

How is this legally justified?

In February 2015, Obama sought new US Congressional authorization to fight ISIS, associated forces and any “closely related successors.” Congress did not budge with Democrats thinking the authorization was too broad and Republicans thinking it was not broad enough.

In an April 2015 speech, top lawyer for the US Department of Defense Stephen Preston said that even without a new Congressional authorization, “the fact is that active hostilities continue. As a matter of international law, the United States remains in a state of armed conflict against the Taliban, al-Qaida, and associated forces [read: ISIS and others like it] and the 2001 AUMF continues to stand as statutory authority to use military force.”

This meant that a 2001 Congressional authorization to use force against al-Qaida, primarily in Afghanistan, had emerged as the basis for an indefinite armed conflict with ISIS and other terrorists in a much wider array of countries.

This defining of an ongoing armed conflict is crucial as it means that the law of armed conflict - and not human rights law - is dominant in analyzing whether drone and air strikes are legal and whether they were proportionate.

Simplified, the law of armed conflict favors the use of force as long as certain minimal criteria are met to safeguard civilians, with those criteria being sympathetic to the needs of military commanders, whereas human rights law focuses far more primarily on keeping civilians safe.

This setting of the playing field heavily impacts the answers to the questions of: How broadly can “associated forces” be defined to cover terror groups not directly part of ISIS or al-Qaida? How specific does intelligence need to be about terror “targets” and how much information must the government release about the attacks and unintended civilian casualties?

Human rights lawyers often ask why a terrorist off the battlefield was not arrested? If the “battlefield” is almost anywhere the terrorist is because there is ongoing armed conflict, armed conflict lawyers say there is no more need to arrest him than there would be if confronted by fighting him on a more standard battlefield.

Overall, Obama’s decisions favored continuing much of the Bush era perspective on this issue, even as executive branch lawyers were more involved and the legal bases for doing so were much more heavily debated, defined and some new limits were put in place.

Savage calls this the victory of rule of law critics of Bush over civil liberties critics of Bush. Civil liberties critics wanted to remove the entire war on terror policy infrastructure. Rule of law critics wanted to remove what they viewed as patently illegal, but also wanted to sort through with Congress and with legal memoranda, debate and adjust, but not nix, what was viewed as necessary even by many Democrats in a post 9/11 world.

To the extent targeted killings using a law of armed conflict standard became US policy under a Democratic president, the Israeli government viewed this as a boon as it continued or even broadened the “cover” for its own claims of an ongoing armed conflict, even absent a hot war, on multiple borders.

This issue has very concrete consequences such as potentially justifying Israel’s blockade of Hamas in Gaza, justifying foreign-reported Israeli actions in Lebanon and Syria, and setting the legal principles governing conflicts like the 2010 Mavi Marmara incident which arose from the blockade.

It also made a more military-friendly standard for judging the lawfulness of targeted killings and of Israeli air strike operations during the three Gaza wars - which were reviewed during Obama’s presidency by the UNHRC, NGO critics and the International Criminal Court.

This is not to say that Israel is not willing to stand alone in aggressive or over-expansive (depending on your perspective) legal interpretations of the law of armed conflict. It certainly is and has, arguing its security threats are unique. But it far prefers to tailor its policies to track US policies where possible to defend its legitimacy.

Torture/enhanced interrogation of detainees

On the issue of whether torture or enhanced interrogation techniques can be used on detainees, the Obama administration made one of its cleanest breaks with the Bush administration.

Obama from almost day one formally outlawed water-boarding and other forms of enhanced interrogation.

In the US today, the clear majority view, even as there is a loud dissenting view from some Republicans, is that these enhanced pressure techniques do not work or are not worth the price in the spirit of the proverb that the ends cannot justify such inhumane means.

In November 2015, the US Congress, despite being majority Republican, by wide bipartisan majorities passed into law a ban against using enhanced interrogation, in a move supported by CIA Director John Brennan.

This was one of a few rare points where Obama stuck to the full spirit of his liberal pre-election views in completely honoring both the wording and the spirit of his pre-election ideology.

In contrast, this shift was not viewed positively in Israel.

In Israel, the dominant view within the government legal establishment and within the general population (with some small but notable dissent from some on the Left and from human rights NGOs) is that enhanced interrogation is still necessary to stop ticking bomb attacks – planned attacks which are imminent.

Discussing his differences with the current majority US view against using enhanced interrogations and that such interrogations do not work, sources close to State Attorney Shai Nitzan have called the idea that pressure does not work nonsense.

He might even address respected US Senator Diane Feinstein - who authored a celebrated 2014 Senate “torture report,” after reviewing six million classified intelligence documents over five years, which declared that torture did not work - to say something like: with all due respect he knows Shin Bet cases historically firsthand, and knows it has helped.

In her until now unreported May 3, 2016 hearing before the UNHRC, Justice Ministry czar for investigating complaints against the Shin Bet Jana Modgavrishvili cited the Abu Gosh case before the Israeli High Court as a case where pressure was used and successfully prevented a terror attack by revealing its details beforehand. The Jerusalem Post reported in April 2016 that the attack was a bombing attack set for the Jewish holiday of Yom Kippur.

During the Bush era, the use of enhanced interrogation again gave Israel a relative blanket of immunity. Although in an ironic and circular fashion, a November 26, 2001 memorandum from the CIA General Counsel cites “the Israeli example” as a “possible basis” that “torture was necessary” with certain detainees to prevent imminent attacks where there was no other way to uncover a terror plot underway.

The comparison is not exact. Israel’s “moderate physical pressure” standard for interrogations, even as it is criticized by many, is still viewed as significantly tamer than some techniques used by the Bush administration since the High Court banned torture in 1999.

But the removal of the US blanket by Obama left Israel sticking out.

Yet, that was not the end of the story.

Obama also refused to prosecute any CIA, Department of Justice or other officials from the Bush era for interrogation techniques which he viewed as blatantly illegal.

While there were some probes, all of them lead to no charges.

This left Obama’s constituency disillusioned. They wondered if the costs of no prosecution would be a message of impunity such that his forbidding enhanced interrogation would be temporary and future interrogators might break the rules certain that they would get official or unofficial amnesty. They also believed that such impunity had a global rule of law cost to society.

Though there is no one to one on how hard Israel tries to track US policy and law on balancing national security and human rights, Israel’s record of no criminal prosecutions for over 1,000 detainee complaints of torture since 2001 suggests that it might have had a sigh of relief when Obama gave his own interrogators a free pass.

Guantanamo military terrorist trials

A three-headed problem that Obama confronted was the dilemmas posed by his inheriting hundreds of foreign prisoners in indefinite law of war detention at Guantanamo Bay from the Bush era.

The three problems were: he had committed to closing Guantanamo Bay, what to do with military commissions trials which had already started and were in the works and what to do with the arch-terrorists who national security officials said were too dangerous to release, but who also might be hard to bring to trial in regular civilian courts.

Criticism on these three issues centered around Guantanamo and everything connected to it as departing from normal civilian justice system procedures, undermining the rights of defendants to a fair trial and blackening the US brand.

One of Obama’s first actions as president in 2009 was to order a process for closing Guantanamo and moving all prisoners into a civilian justice or prison system. He also declared a moratorium on bringing any new detainees to Guantanamo, which he stuck to despite some hairy cases, (including situations which led to releasing terrorists from foreign jails once the US pulled out of a foreign base it was using.) These decisions were true to the spirit of pre-election Obama.

But after he moved slowly on implementing closing Guantanamo and on an initial decision to bring 9/11 mastermind Khaled Sheikh Muhammad to trial in New York, Congress realized it could push him around and frazzle him, leading to years of delays in releasing detainees. This was not only true with detainees who were serious security concerns, but also with a group of Chinese Uighurs who had essentially been scooped up by the US by accident and presented no danger to the US.

Even as it saw the obstacles erected by Congress, Obama’s constituency again felt betrayed that he did not close Guantanamo (and may not before his presidency ends) and took years to release a substantial number of detainees.

Next, there was a massive internal administration debate over whether to scrap the Bush era military commissions (a lightning rod for the Left), and move all detainees either into civilian court trials or permanent detention without trial, or to keep, but reform the commissions.

Obama disappointed his constituency again by choosing reform over nixing.

In a May 2009 speech, Obama explained his middle ground which shifted some from his pre-election more liberal rhetoric (though in his book Savage notes that Obama had technically quietly and craftily supported reforming and not scrapping commissions even pre-election) and also shifted away from what he defined as Bush era excesses.

“We are indeed at war with al-Qaida and its affiliates…We need to update our institutions to deal with this threat. But we must do so with an abiding confidence in the rule of law and due process…The decisions that were made over the last eight years established an ad hoc legal approach for fighting terrorism that was neither effective nor sustainable –a framework that failed to rely on our legal traditions and time-tested institutions, and that failed to use our values as a compass.” 

He also disappointed some of his more civil liberties-minded lawyers by supporting allowing the military commissions, even reformed, to function in ways that civilian courts could not – such as excepting battlefield confessions.

Battlefield confessions are essentially not used in civilian courts because they are hearsay, or statements made outside of court. Also, they are usually given in situations where duress could be claimed and at the very least, the arresting soldier does not explain to the soldier being arrested that he has a right to remain silent.

In this decision, Obama supported the argument of top judge advocate Mark Martins over acting assistant attorney-general David Barron. This was in and of itself choosing, at least by relative comparison, the view of the security-leaning lawyer over the civil liberties-leaning lawyer (not that Barron was “weak” on security issues.)

Next, Obama made it clear that some detainees would neither be brought to trial nor released, but would be in permanent law of war detention. This greatly displeased his constituency.

From the Israeli perspective, even as there are several important differences, the US’s use of military trials, special rules of evidence and indefinite detention at Guantanamo lent it some defense against criticism in its own military West Bank courts dealing with the Palestinians.

In particular, the decision to permanently detain arch-terrorists, gave Israel some defense for its administrative detention practices, which sometimes included detaining terrorists due to be released after they had served out their sentences, since they were still considered too dangerous. (Although the number of Israeli administrative detainees is consistently far higher.)

From this perspective, as Obama has heavily reduced the number of Guantanamo detainees from around 240 in 2009 (at the height of the Bush era there were nearly 800) to as low as 61 currently with around another 20 expecting transfer soon, that defense of Israeli military court practices with Palestinians has been reduced.

Spying v. privacy

Regarding the post Edward Snowden debate about NSA spying on US citizens’ telephone calls, emails and meta data, Obama again took a middle ground disappointing some of his constituency while making some changes to the Bush era spying. But this is mostly a non-issue in Israel.

There are “basic law” protections in Israel, but there is no constitution. If there was one, there likely would not be a Fourth Amendment right protecting against searches and seizures as wide as in the US. Moreover, the Israeli culture of privacy, while it exists, is viewed as highly secondary to preserving national security.

The earlier wiretapping law and the 2002 Shin Bet (Israel Security Agency) law largely give the Shin Bet the right to review telephone calls, emails and meta data without anywhere near the same privacy safeguards the US has now or even had at the height of the Bush years. High Shin Bet officials, sometimes Attorney-General’s office officials, a Knesset oversight committee or the prime minister must sign off on certain issues in place of the US’s Foreign Intelligence Surveillance (FISA) courts.

For example, a recent mega court battle in the US over whether the FBI could force Apple to allow it access to a terrorist's cellphone data would not be a debate in Israel - the Shin Bet would have the right to access under the 2002 law.

Put simply, due to the Israeli public's greater fear of constant national security dangers, while there are significant safeguards to privacy in Israel, the balance between that and national security is slanted far more toward national security than in the US.

US intervention in Libya

Another major topic in which national security came into conflict with international and human rights law was Obama’s decision to intervene in Libya.

The intervention itself was actually sanctioned by the UN Security Council. But Congress never approved it and Obama ran into issues with the US War Powers Act when the conflict went over the 60-day deadline by which a president must have Congressional authorization to continue fighting.

Critics on the Left and the Right slammed him for dancing around the 60-day deadline saying Congress’ failure to object was essentially acquiescence. But there was no wholly-satisfying legal justification here other than Obama decided he could not sit by and watch former Libyan dictator Muammar Gaddafi carry out mass bombing attacks on his own people.

Confronted by the moral imperative of saving masses of innocent lives, the former constitutional law professor would not be constrained by the confines of traditional legal interpretation and would accept anything that his executive branch lawyers thought was plausible, even if dubious.

While significant in sizing up Obama’s presidency, this again is not an Israeli issue. There is no 60-day limit requiring Knesset approval and part of the reason is that Israel never fights long wars or wars far from its borders like the US’s Vietnam War which gave birth to the 60-day deadline. 

No debate about Netanyahu’s shift from Left-Center governments

In Israel, the unending war on terror, targeted killings, enhanced interrogation, military courts dealing with the Palestinians, administrative detention and Shin Bet spying on communications are largely within a national consensus. The consensus includes the major Likud and Zionist Union parties as well as any newer center parties who set the country’s agenda.

The tiny Meretz and larger but politically ineffectual Israeli-Arab Joint List party and many Israeli NGOs fight for Israeli “war on terror” type policies to become more liberal, like the EU (for these critics often the US under Obama would also come in for heavy criticism,) but they have almost no impact, other than when they convince the High Court or executive branch lawyers to make a change.

It may be that if there was Israeli-Arab peace, that the Zionist Union would shift to being more liberal on these issues and there would be more of a debate. But with peace remote and the larger issues of getting to peace or managing the conflict with Gaza, the “third intifada,” almost constant conflict between the West Bank Palestinians and the settlers and threats on virtually all of Israel’s borders taking over the stage – it generally views these issues as too secondary to focus on for long.  

One has the sense from Savage’s book that if Obama could turn back the clock, he might have closed Guantanamo fast and without giving Congress time to object and that he might have done more planning and invested the US more in the aftermath of its military intervention in Libya.

He would have faced criticism for either moving of the dials, but he would have come off better with the US Left and avoided grinding constant public battles over Guantanamo and over violating the 60-day War Powers Act deadline in Libya. Ironically, another Democrat who came into office as more of a hawk, say Hillary Clinton, might have acted more assertively on some of these issues, having less fear of being attacked for being soft on underwear bombers. 

In the same sense, Obama may be less reviled by the US Right down the line once it is realized how much he made the war on terror permanent in a way a Republican never could have.

One hallmark of Obama’s presidency was rule by executive branch lawyers, who often authored long memoranda to justify continuing Bush era policies which his predecessor’s lawyers had justified in only a few pages. At one point, Savage presents the dilemma of whether Obama was any different than Bush when they came to the same conclusions simply because his legal memoranda were hundreds of pages and Bush’s were a few pages.

On the same line of attack of the Obama era lawyers who changed from Bush era war on terror critics to Obama administration war on terror defenders (without using the phrase), Obama and his lawyers are accused of being so methodical that they were prevented from undoing Bush era policies in a way they might have been able to do had they been less process-oriented.

Obama, his lawyers (and likely Savage even as he is ready to criticize Obama and craftily avoids directly expressing his personal views) would say that even if some of the criticism is fair, that the process did and does make a difference.

They would say that greater deliberations by lawyers and focus on law by the Obama administration as opposed to the Bush administration disqualified certain outcomes from being considered. There are not many, and CIA Director John Brennan famously said that the Obama lawyers never said no to anything he thought the country really needed. But Obama and his lawyers can even cite some examples where the lawyers vetoed a course of action and military strikes. 

Thus, in the US view, Obama will likely be viewed as having returned the US to its rule of law roots from some Bush era excesses, even as he turned his back on some 20th century civil liberties views in order to face new and real 21st century threats. He will likely be viewed as having been grudgingly ensnared into normalizing national security policies that he, in terms of his personal temperament, found distasteful, but cerebrally judged to be necessary.

In Israel, most of the view of Obama will still likely be shaped by some of the bigger issues like Iran, his poor relationship with Netanyahu and his actions and non-actions regarding the eruptions across the Middle East. He will also not be viewed favorably by the security establishment where he, over the course of his presidency, moved away from or diluted war on terror policies.

But to the extent that he was a Democratic president who endorsed indefinite armed conflict, targeted killings, a light hand to interrogators who use enhanced interrogations beyond the law and indefinite detention, the security establishment may still view him more fondly than the Israeli record indicates to date.

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