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Law and Morality Aren't the Same Thing

State-Sanctioned Murder

by CHARLES DAVIS

The recent extrajudicial killing of two American citizens, most notably radical Islamic cleric Anwar al-Awlaki, has spurred a curious debate over whether the action, personally ordered by President Barack Obama, was right or wrong — curious for its conspicuous focus not on whether assassinations are right or wrong, but on whether they are “legal” or not.

But law and morality are not the same thing.

Whether lawyers serving the powerful can twist laws drafted by the powerful to serve the interests of power has absolutely no bearing on the morality of death-by-president. Indeed, when a single individual has the power to unilaterally decide who lives or dies, whether that’s permissible under some tortured reading of the Constitution and international law may not be irrelevant, but it isn’t exactly the most pertinent question.

What we ought to be talking about is whether murdering people with unmanned Predator drones based on evidence that will never see the light of day is, regardless of the target’s nationality, morally right or morally reprehensible. For those in the anti-murder camp, the answer is easy — and more relevant than whether a murder was in accordance with clause five of subsection B of the International Code on State-Sanctioned Killing.

After all, the law is crafted by the powerful to serve their interests, meaning that debating the legality of a politician blowing up anyone in the world they choose is to debate on the terms set by power. Give a team of White House lawyers enough time, and they no doubt could come up with a superficially compelling case for why the president can end life as we know it based on his inherent powers as commander-in-chief. While such an argument may be fatally flawed morally speaking, when it comes to the law, who’s really going to say they’re wrong?

The 2003 invasion of Iraq, recall, was a blatant war of aggression, the “supreme international crime,” in the words of the Nuremberg Tribunal, “differing only from other war crimes in that it contains within itself the accumulated evil of the whole.” Even Richard Perle, one of the chief architects of that war, admitted as much. And what has come of it? Dick Cheney goes on book tours while Bradley Manning, who instead of committing war crimes actually exposed them, rots in prison.

Such is the morality of the law: If you’re powerful enough, you’re immune, but if you’re weak, you’re prosecuted. Members of the Obama administration, then, must love the debate over the legality of their actions. It’s one they can win even if they lose.

And yet, liberal discussion is dominated by talk of the legality, not the morality, of the U.S. government murdering people without charge or trial. Instead of right and wrong, liberals narrowly debate whether the president can legally order hits on alleged terrorists who happen to be U.S. citizens. An American passport, it seems, makes the man.

How to Make Wrong Right: Call It a “War”

Taking their cue from President Obama, many on the left have come to accept the “war on terror” paradigm they rejected back when that guy from Texas was president. And that little three-letter word, “war,” lowers an already pitifully low bar for when the state may legally take human life and, by extension, raises the threshold at which good bleeding-hearts ought to let their humanity kick in. It may be wrong for a mere citizen or policeman to take out a family of four as part of a quest for vengeance against a killer, but in war that’s just “collateral damage.” It sucks that 41 innocent Yemenis had to die as part of the U.S. government’s quest to kill folks like Awlaki, but don’t get yourself too worked up about it.

It’s certainly not illegal, after all.

By focusing on the mundane rather than the moral case for or against state-sanctioned murder, progressive commentators can sleep well at night despite having a bumper sticker for a killer on their car, their consciences soothed by legalistic rationalizations for extinguishing human life that they’d never accept from a friend or family member. Some even cheer death as long as it’s carried out by the state — and a fellow Democrat.

A writer for The Washington Monthly, for instance, reacted to the assassination of Awlaki — and another American, Samir Khan, and some other foreigners whose lives aren’t even worth acknowledging — with admirably partisan enthusiasm, saying he looked “forward to conservatives explaining to the public why all of this is evidence of weakness under the Obama presidency.” The liberal Center for American progress likewise took former ambassador to the United Nations John Bolton to task for trying “his hardest to downplay the significance” of the killing and not heaping praise on Our Leader.

Never mind what actual experts say — Yemeni Post editor Hakim al-Masmari told al-Jazeera Awlaki’s death “will not be a blow to al-Qaeda in the Arabian Peninsula from any perspective . . . because [he] did not have any real role in [the group]” — we have a ritualistic celebration of death to attend to, Mr. Bolton. This is supposed to be a happy occasion!

Even those who aren’t outright cheering the glorious new age of America extrajudicially killing Americans are more or less excusing murder with the disinterested musings of a bureaucrat. A writer for the progressive website AlterNet, for instance, reacted to the assassination by asking “Was the al-Awlaki Killing Legal?” Answer: “I don’t know — the question hinges on facts I don’t claim to possess.” Don’t worry about the rightness of killing someone based on secret evidence and a self-serving reading of the law, dear reader; ponder whether that secret evidence against the executed comports with a plausible reading of the law.

The Right to Life: Dependent on a Passport

A commentator at Mother Jones, meanwhile, reacted to the killing by declaring he was none too concerned with whether “Awlaki in particular deserved to die.” Ho hum. Just another dead guy in the war on terror. Rather — and this is more than some on the left could muster — he was troubled by the “precedent by which a U.S. president can secretly order the death of an American citizen unchecked by any outside process.” The same writer, gainfully employed at a leading liberal publication, enthusiastically cheered the premeditated killing of an unarmed non-American a few months ago, the difference being the passport held by the man being murdered.

And that pretty much sums up the state of mainstream liberalism in America these days. Even if they don’t particularly care for it, those who rightly called George W. Bush a war criminal express no moral outrage over a Democratic president’s killing of anyone he chooses; it certainly doesn’t make him a bad guy unworthy of reelection. Instead, the killings are debated in dull legal terms, if at all. And not even Obama’s more strident liberal critics question the murder of foreigners, which is at worst a “counterproductive” policy, not an evil one.

This, again, isn’t to say the law is irrelevant, or that those who prefer legalistic or utilitarian arguments against state-sponsored murder shouldn’t be welcome in decent society. Governments make rules for the rest of us to follow, so when they blatantly violate those laws, they deserve to be called on it. No question.

But the debate over the legality of extrajudicial executions is based on the terms of debate set by the executioners, which risks making murder a respectable — or banal — enterprise, acceptable to liberal sensibilities so long as one cites the proper subsections and files the appropriate paperwork on time. And the debate over the laws governing state-sponsored murder threatens to obscure the more important question of what is right.

What Is the Law?

What’s legally permissible, remember, is not the same as what’s morally permissible: Owning human beings was once the unchallenged law of the land, while those who helped fugitive slaves — not those who brutalized them — found themselves locked away in prison cells. A Southern plantation owner could win any legal challenge to his ownership of slaves by citing a dozen federal and state statutes. That didn’t make it right. And while some abolitionists did adopt legal arguments against slavery, they never forgot their most potent case against the infamous institution: the moral one.

Forget the law. Does any person, whether a saint or a statesman, have the moral right to unilaterally take the life of another? Is it just or wise to invest in one fallible human being, or even a group of them, the power to kill and the ability to do so without so much as a rubber-stamp conviction in a military tribunal — and without fear of so much as a harsh word from establishment liberal humanitarians? The answer, I’d argue, is unambiguous: no. Allowing one man or woman the right to be judge, jury, and executioner is a recipe for totalitarianism, one that eviscerates all other human rights and the moral fiber of those who would be a party to it.

Back when slavery was as legal and respectable as blowing up Pakistani tribesmen with Predator drones is now, author and dissident Henry David Thoreau published an essay on the duty of civil disobedience in which he noted that, in fact, “Law never made a man a whit more just.” Indeed, “by means of their respect for it, even the well-disposed are daily made the agents of injustice.”

Right now, too many Americans — pundits especially — have an undue respect for statutes and precedents, leading even those on the left to speak of things such as the “laws of war,” as odd a turn of phrase as the “rules of rape.” And it’s making them agents of injustice.

Charles Davis is a writer based in Nicaragua. Email him at davis.charles84@gmail.com and read more of his work at http://charliedavis.blogspot.com.