Friday, May 06, 2011

Mulcair's unresolved question

Let's indulge this one, because it may say something about the NDP's new role and how they tackle questions from here on out. A new softening of pure ideological, third party positioning to conform to new pressures. Mulcair said this on Power and Politics the other day where he was pigeonholed on the question of the existence of pictures showing the death of Osama bin Laden. To me, however, it remains an unanswered question as to whether Mulcair as deputy leader of the NDP believes the killing was illegal. In other words, it wasn't just about the pictures and conspiracy theory, it was about what Canada's official opposition believes in this regard:
Mulcair also said the killing requires "a full analysis" on whether it was self-defence or a direct killing because "that has to do with American law and international law as well."

"I think that if the Americans have taken pictures in that circumstance, it won't be able to prove very much as to whether Mr. [bin Laden] was holding a weapon," he said.
Mulcair didn't seem to drop that point on the legal justification for the killing Thursday after admitting he agreed that yes, there were pictures:
Thursday morning on CBC Radio's Montreal morning show Daybreak, host Mike Finnerty took another crack at Mulcair, who admitted his exchange with Solomon was "meandering," blaming post election "fatigue and/or joy at victory."

Mulcair told Finnerty what he had meant to address was whether the shooting of bin Laden was "vengeance" or "justice."

"Justice means that we are going to be applying rules of law, whether they be international or they be domestic," he said.

"And those were the type of questions I raised yesterday, although not as adroitly as I might have, I have to admit."
Paul Dewar's statement didn't address that point at all about the legality of the killing, going with the media hype on the pictures. Although, you could consider the line "We have no reason to doubt the veracity of President Obama’s statement," as blanket agreement with the American position. The NDP seems to have skated on Mulcair's point, letting it die in the maelstrom over whether he's a conspiracy believer or not.

Here is an explanation of the rules of engagement being used with "high value" targets from an American commentator that explains how the Americans may ultimately be justifying the killing and this may be where Mulcair, in pre-official opposition days may have wanted to go, with the Human Rights Watch questioning:
The executive director of Human Rights Watch, Kenneth Roth, has criticized the White House for its public handling of the killing. He recently wrote on Twitter, “White House still hasn’t clarified: OBL ‘resisted’ but how did he pose lethal threat to US forces on scene? Need facts.” This may be a worthwhile thing to know for broader ethical or policy or tactical reasons, but it is not the most pertinent question when judging the action against our existing military laws. The key legal question is not whether bin Laden was armed before he was killed, or even whether or not he posed an immediate “lethal threat,” but whether he was “positively identified” before the trigger was pulled, and whether Holder is accurate when he says that “there was no indication” that bin Laden was actively attempting to surrender. Those are the more relevant facts. And if there is a formal inquiry into the incident, this is what it will undoubtedly seek to establish.

For some people, the scope of such an inquiry might feel frustratingly narrow. If that’s the case, the frustration is not so much about the legality of the bin Laden raid but about the laws that governed it. Status-based operations, which the U.S. military has come to use widely in South Asia and the Middle East since 9/11, are in a sense extrajudicial, even if they are legal by our own standards as a society. They are instruments of war, not law enforcement, which means that even when they are technically and brilliantly precise, they are not designed with the nuances of due process in mind, and are often guided by difficult (and roughly calculated) collateral damage assessments. Such operations are not inherently bad; if they are conducted with careful oversight, they can have a high utility, which is why the military seeks to use them. But they remain blunt instruments, guided by principles and conditions that differ from those in civilian society.

To be uncomfortable with such operations is, in a sense, to be uncomfortable with war itself.
As the author there points out, during the Second World War, an S.S. officer having lunch in France might have been shot, for example, without the need for him to have drawn a weapon simply based on his being a high-value target, under a similar rule of engagement long as he wasn't surrendering in that moment.

So it might seem like a small thing in our new majority scenario and something that got lost amidst the conspiracy focus. But whether Mulcair believes the Americans have justified the killing, legally, seems to be an open question that's still unaddressed.