Saturday, November 1, 2008


Sandy Levinson writes in the legal blog Balkinization about our defective Constitution. Levinson points out how George W. Bush still can make lots of trouble not only for Americans but the rest of the world in his last three months in office, notwithstanding his low approval ratings and the disapproval of many in his theory of the "unitary executive." I commented on Levinson's post and here I reproduce some of my comments after editing.

The fact that even now on the eve of the presidential election Bush can still order missile strikes into Pakistani agrarian towns and villages is another reason why the Constitution needs amending.

We have today another example of Bush's dictatorial powers in a story from the website of The Washington Post as reported by Ishtiaq Mahsud:

"Suspected U.S. missiles slammed into two villages close to the Afghan border Friday, killing 27 people, including an Arab al-Qaeda operative and other foreign fighters, intelligence officials said.

"The strikes raised the number of such attacks to at least 17 since August. The surge has angered many Pakistanis and strained a seven-year U.S. alliance with Pakistan, where rising violence is exacerbating economic problems and undermining the nuclear-armed country's stability."

So it seems in his final days bellicose Bush is determined to antagonize the entire population of Pakistan in his quest to kill a few "Al Qaeda types." It doesn't matter how many innocents are killed at the same time provided that the target person is killed. In the story from the WaPo, we see at least 27 lives taken. Imagine how many innocent children and families lost their lives.

Additionally, I wonder how the CIA guy who pushed the button firing the missile into the targeted homes in Waziristan can sleep at night and whether he ever equates those children he killed with his own.

Some say this is legally justified by AUMF (Authorization to Use Military Force). But there must be a test of proportionality. To kill 27 people in order to kill one "Al Qaeda type" does not I argue meet this test. Furthermore, I submit that even killing of one innocent destroys the proportionality.

For this reason I find Bush's powers as president to order these strikes deeply troubling. Bush should have no authority to kill innocent civilians. His actions provide enough material to form the basis for charging him in the International Court with war crimes.

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