The End of International Law?

THE NATION

10/29/08

The End of International Law?

Robert Dreyfus

A parallel new Bush doctrine is emerging, in the last days of the soon-to-be-ancien regime, and it needs to be strangled in its crib. Like the original Bush doctrine -- the one that Sarah Palin couldn't name, which called for preventive military action against emerging threats -- this one also casts international law aside by insisting that the United States has an inherent right to cross international borders in "hot pursuit" of anyone it doesn't like.

They're already applying it to Pakistan, and this week Syria was the target. Is Iran next?

Let's take Pakistan first. Though a nominal ally, Pakistan has been the subject of at least nineteen aerial attacks by CIA-controlled drone aircraft, killing scores of Pakistanis and some Afghans in tribal areas controlled by pro-Taliban forces. The New York Times listed, and mapped, all nineteen such attacks in a recent piece describing Predator attacks across the Afghan border, all since August. The Times notes that inside the government, the U.S.Special Operations command and other advocates are pushing for a more aggressive use of such units, including efforts to kidnap and interrogate suspected Taliban and Al Qaeda leaders. Though President Bush signed an order in July allowing U.S. commando teams to move into Pakistan itself, with or without Islamabad's permission, such raids have occurred only once, on September 3.

The U.S. raid into Syria on October 26 similarly trampled on Syria's sovereignty without so much as a fare-thee-well. Though the Pentagon initially denied that the raid involved helicopters and on-the-ground commando presence, that's exactly what happened. The attack reportedly killed Badran Turki Hishan al-Mazidih, an Iraqi facilitator who smuggled foreign fighters into Iraq through Syria. The Washington Post was ecstatic, writing in an editorial:

"If Sunday's raid, which targeted a senior al-Qaeda operative, serves only to put Mr. Assad on notice that the United States, too, is no longer prepared to respect the sovereignty of a criminal regime, it will have been worthwhile."

Is it really that easy? To say: We declare your regime criminal, and so we will attack you anytime we care to? In its news report of the attack into Syria, the Post suggests, in a report by Ann Scott Tyson and Ellen Knickmeyer, that the attack is raising cross-border hot pursuit to the level of a doctrine:

"The military's argument is that 'you can only claim sovereignty if you enforce it,' said Anthony Cordesman, a military analyst at the Center for Strategic and International Studies. 'When you are dealing with states that do not maintain their sovereignty and become a de facto sanctuary, the only way you have to deal with them is this kind of operation,' he said."

The Times broadens the possible targets from Pakistan and Syria to Iran, writing (in a page one story by Eric Schmitt and Thom Shanker):

"Administration officials declined to say whether the emerging application of self-defense could lead to strikes against camps inside Iran that have been used to train Shiite 'special groups' that have fought with the American military and Iraqi security forces."

That, of course, has been a live option, especially since the start of the surge in January, 2007, when President Bush promised to strike at Iranian supply lines in Iraq and other U.S. officials, including Vice President Cheney, pressed hard to attack sites within Iran, regardless of the consequences.

On October 24, I went to hear Mike Vickers, the assistant secretary of defense for special operations and low-intensity conflict, speaking at the Washington Institiute for Near East Policy (WINEP), a pro-Israeli thinktank in Washington. He spoke with pride about the vast and growing presence of these commando forces within the U.S. military, noting that their budget has doubled under the Bush administration and that, by the end of the decade, their will more than 60,000 U.S. forces in this shadowy effort. Here are some excerpts of Vickers' remarks:

"If you look at the operational core of our Special Operations Forces, and focus on the ground operators, there are some 15,000 or so of those -- give or take how you count them -- these range from our Army Special Forces or our Green Berets, our Rangers, our Seals, some classified units we have, and we recently added a Marine Corps Special Operations Command to this arsenal as well. In addition to adding the Marine component, each of these elements since 2006 and out to about 2012 or 2013 has been increasing their capacity as well as their capabilities, but their capacity by a third. This is the largest growth in Special Operations Force history. By the time we're done with that, there will be some things, some gaps we need to fix undoubtedly, but we will have the elements in place for what we believe is the Special Operations component of the global war on terrorism.

"Special Operations Forces, I think through this decade and into the next one, have been and will remain a decisive strategic instrument. ...

"There's been a very significant -- about a 40 or 50 percent increase in operational tempo and of course more intense in terms of the action since the 9/11 attacks. On any given day that we wake up, our Special Operations Forces are in some sixty countries around the world. But more than 80 percent or so of those right now are concentrated in the greater Middle East or the United States Central Command area of responsibility -- the bulk of those of course in Iraq and Afghanistan."

Notice what he said: operating in 60 countries.

Of course, the very invasion of Iraq was illegal in 2003, and it flouted international law. So some may say, these cross-border raids are small potatoes. But they're not. This is a big deal. If it becomes a standard part of U.S. military doctrine that any country can be declared "criminal" and thus lose its sovereignty, then there is no such thing as international law anymore.

When Defense Secretary Robert Gates was asked about this, here's what he said, as quoted in the Post article cited earlier:

"'We will do what is necessary to protect our troops,' Defense Secretary Robert M. Gates said in Senate testimony last month, when asked about the cross-border operations. Under questioning, Gates said that he was not an expert in international law but that he assumed the State Department had consulted such laws before the U.S. military was granted authority to make such strikes."

Not an expert in international law? He'll leave it to the State Department? And this is the guy that Barack Obama's advisers say ought to stay on at the Pentagon under an Obama administration?