Obama Thinks We’re All Rubes

by Kevin Jon Heller

There is a classic jury instruction that reads, “[a] witness who is willfully false in one material part of his or her testimony is to be distrusted in others. You may reject the whole testimony of a witness who willfully has testified falsely as to a material point, unless, from all the evidence, you believe the probability of truth favors his or her testimony in other particulars.” I immediately thought of that instruction when I read Obama’s national-security speech today, because it contains such a blatant lie that it is impossible to take anything else that Obama said seriously:

And before any strike is taken, there must be near-certainty that no civilians will be killed or injured — the highest standard we can set.

The United States, of course, has used drones to attack wedding parties. And funerals. And rescuers. And densely populated villages. Yet Obama has the temerity to claim that the US does not launch attacks unless there is “near certainty” that no civilians will be harmed. Has there been a bigger — and more obvious — lie since John Brennan’s risible claim in 2011 that drone strikes had not caused “a single collateral death”?

What is most perverse about Obama’s purported requirement is that, from a legal standpoint, it is completely unnecessary. International humanitarian law does not demand perfection; it demands proportionality. Innocent civilians die in legitimate military attacks. They always have, and they always will — no matter how “precise” weapons like drones become. Every military commander in every country in the world accepts that basic fact of warfare. But not Obama, winner of the Nobel Peace Prize. He cannot bring himself to acknowledge that the US is — like every other country — willing to launch attacks that are likely to kill innocent civilians when it believes the targets are important enough. He would rather pretend, in public and seemingly without shame, that the US is more virtuous and has cleaner hands than everyone else, friend and foe alike. Never mind that if the US took his targeting standard seriously, its drone fleet would be gathering dust in a hangar somewhere.

Obama gives a good speech. But, as the jury instruction goes, “[a] witness who is willfully false in one material part of his or her testimony is to be distrusted in others.” I think it is safe to say that we should be deeply distrustful of all the claims Obama made in his speech today, not just the wilfully false one. We simply cannot count on him to tell us the truth about the US’s national-security policy.

http://opiniojuris.org/2013/05/24/the-obama-administration-thinks-were-all-rubes/

6 Responses

  1. Personally I don’t think the speech, read as a whole, purports to set out a standard any higher than proportionality. The risk of civilian casualties – and acceptance of that risk – is expressly acknowledged at several junctures. For example (in relation to the bin Laden operation):
     
    The fact that we did not find ourselves confronted with civilian casualties, or embroiled in an extended firefight, was a testament to the meticulous planning and professionalism of our Special Forces, but it also depended on some luck.  And it was supported by massive infrastructure in Afghanistan.
     
    And, in relation to the use of drones themselves: 
     
    it is a hard fact that U.S. strikes have resulted in civilian casualties, a risk that exists in every war.
     
    The speech also states fairly clearly that the decision to use drones in spite of that risk involves Obama weighing the options of alternative means of attack and doing nothing. That discussion is capped off with the not particularly salutary claim that drones are merely the:
     
    course of action least likely to result in the loss of innocent life.
     
    So, that’s a much lower level of caution than ‘near-certainty’, at least as that term is generally used in common parlance. However, that does make it a very dodgy choice of words.

  2. As to “near-certainty,” do you think Obama was referring to the existing standard that governed prior strikes in his administration, or to a new standard going forward that he was now implementing in order to reduce the number of strikes approved?  The statement was a bit ambiguous in this regard.
     

  3. Jens,

    I have received some private pushback on precisely that point. Is it possible that the President announced a new standard? Sure. But then he needed to admit that the US has tightened its standard for acceptable risk to civilians. Instead, he specifically said this:

    And that’s why, over the last four years, my administration has worked vigorously to establish a framework that governs our use of force against terrorists –- insisting upon clear guidelines, oversight and accountability that is now codified in Presidential Policy Guidance that I signed yesterday.

    “Codified” — not “altered” or “tightened” or “narrowed.” If Obama wants to admit that the US has decided to reject its previous approach to the acceptable risk to civilians, he is free to do so. But he obviously won’t, because that would make the administration look bad. So at best he is being deliberately vague; at worst he is deliberately trying to mislead people into thinking that the US has (at least under him) never launched a drone strike where there was anything less than near certainty that civilians would not be harmed.

  4. It is also worth noting what a senior administration official said during the press briefing that accompanied the speech:

    And you’ll also see the President indicating here that he insists that near-certainty that civilians won’t be killed or injured is a part of the standards under which the United States takes action. 

    So, in some respects, this does indicate the codification of the highest standards that we have pursued in the course of the last several years.  And that is meant as a baseline to guide us going forward. 

    Again, the implication is clear: the requirements for the use of lethal force announced by Obama simply codifies requirements that the US has applied — has pursued, due to Obama’s insistence — for “the last several years.”

    Needless to say, many of the attacks on funerals, weddings, and rescuers have taken place during “the last several years.” The latest such attack was little more than six months ago.

  5. It could be a true and accurate statement, depending on how one defines “civilian”.
    That is, you could commit to avoid hitting civilians – if your definition of civilian is so broad that expressing such a limitation is in practice, effectively of very limited constraint really – such as “all military age males are presumed combatants unless posthumously proven innocent”

  6. Indeed — although, to Obama’s credit, the information sheet accompanying the speech explicitly disavowed that definition.

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