Daily Archives: October 29, 2011

Did the idea of legal war die along with Gaddafi?

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By: By Scott Horton

As Muammar al-Gaddafi’s corpse rotted in a Misrata meat locker, Barack Obama’s gambit on Libya was being widely acclaimed in Washington as a foreign-policy success — and a politically daring one. The US president’s own secretary of defense and key military advisors, after all, were against the operation; many of his Republican critics, meanwhile, had advocated for a more forward American military role, reminiscent of Iraq. Spurning both, Obama opted for a carefully calibrated effort that emphasised the support of key allies, enabling a popular uprising that steadily peeled away support from a loud but teetering dictator. In the end, the effort cost no American lives and less than $2 billion, which Sen. Lindsey Graham reports the Libyans are willing to repay. The future remains unclear about the sort of government Libya will see in Gaddafi’s wake — but it’s quite clear that the operation burnished the reputation of the United States with Libya’s population, as was evident by the American flags hoisted in Benghazi and Tripoli last week. Compared with the cost and doubtful outcomes in both Iraq and Afghanistan, the Libya campaign looks — for now, at least — like a stroke of genius.

But seen through the lens of the law, the victory is a distinctly Pyrrhic one. When he was elected, Obama promised an America that, in a sharp break from its very recent past, would lead by example and reinvigorate its respect for the rule of law, both at home and on the international stage. Obama’s conduct of the war in Libya points to a White House that is perhaps more cautious than its immediate predecessor in foreign military exploits, but just as assertive in the area of executive prerogative. It is a gloomy precedent — and one that will make necessary humanitarian actions in crises such as Syria’s less, not more, likely to happen.

The Libya operations have to be assessed at two separate levels of legality. The first is domestic and involves the constitutional interplay between the executive branch and Congress in the realm of war powers. American legal thinking about the respective roles played by Congress and the president can be divided roughly into three camps. The first and more conservative view, dominant among constitutional scholars, holds that the president has the power to respond to an attack on his own or to take urgent steps to defend the country, but that he must secure Congress’s consent in some form before using US arms in hostilities abroad on a more sustained basis. To protect its rights against encroachment by the executive, Congress enacted the War Powers Resolution in 1973. Compliance with or circumvention of the resolution continues to this day to be a key field of tension between the White House and Congress.

The second, traditionally liberal view, advanced by Democratic administrations going back perhaps as far as Harry Truman, was presented most concretely in a series of memoranda authored by Walter Dellinger, head of the Justice Department’s Office of Legal Counsel (OLC) in Bill Clinton’s administration. Dellinger chose not to tackle the traditionalists head-on. Rather, he suggested that there was a species of conflict short of war that was not really covered by the obligation to consult Congress. Dellinger argued that the president could act unilaterally when there was some compelling national interest that militated for action and the deployment would not amount to war in the sense discussed in the Constitution.

The third perspective, associated with Berkeley law professor and George W. Bush-era OLC staffer John Yoo and a number of other neoconservatives, argues that the traditional view is a fundamental misunderstanding of the constitutional order and that the president always has the authority to act unilaterally. The most authoritative statement of this perspective may well be in the OLC memorandum that Yoo wrote to justify Bush’s decision to commence hostilities in Iraq in 2003. It’s noteworthy that notwithstanding Yoo’s opinion, Bush still felt compelled to seek specific votes in Congress to authorise military action in Iraq and Afghanistan. Having obtained these votes, Bush never had cause to put the Yoo theorem to the test. But Yoo’s argument does present the ultimate legal pushing of the envelope in the area of presidential war powers.

Obama probably could have secured congressional authority for his operations in Libya at the outset of the conflict — a fact suggested by resolutions adopted before the commencement of hostilities encouraging him to act — but he opted not to do so. Instead he relied on a memorandum authored by the OLC’s Caroline Krass. Following carefully in the footsteps of the earlier analysis by Dellinger, Krass argued that “preserving regional stability” in North Africa and “maintaining the credibility of United Nations Security Council mandates” were important national interests of the United States that warranted the Libya operations. She also concluded that the nature of the operations — involving no deployment of ground forces and only a limited measure of US engagement, in concert with Nato and other allies who would bear the brunt of the effort — supported a conclusion that this was not what the Constitution meant by “war.”

That second point is, of course, by far the more problematic, considering the notorious difficulty at the outset of any conflict of gauging the level of effort ultimately required. However, on this point, Krass was borne out by the facts: Although the United States took the lead in the first weeks, its role did in fact recede as the conflict wore on, with France and Britain taking centre stage. Disorganised rebels assembled under the banner of the National Transitional Council, which steadily expanded its authority over the bulk of Libya’s territory and accumulated international recognition.

However, the first prong of the Krass analysis couldn’t be more doubtful. The notion that “preserving regional stability” in North Africa was a matter of US national interest was squarely rejected by Defence Secretary Robert Gates and other senior Pentagon brass and can’t be squared with prior authoritative statements of policy towards the region; the best argument that Krass could muster was the suggestion that Italy and other US allies in southern Europe would have to cope with waves of refugees from Libya. Recent reports have suggested, moreover, that Krass’s criteria were marginal at best in the actual decision-marking. As Rolling Stone’s Michael Hastings reported in a recent lively portrait of the Obama administration’s internal debate over Libya, concerns that a Gaddafi victory would deflate the Arab Spring movement, coupled with a sense that the revolutionaries’ success could be ensured with a minimal commitment of blood and treasure, was at the core of Obama’s call. There is thus a disconnect between the conjectural reasons used to justify the OLC memo and the actual reasons that reportedly drove Obama’s decision to support the venture.

The Obama team also stepped around the War Powers Resolution. It issued brief reports to Congress after hostilities had been commenced, but it did not recognise the resolution as being applicable to the Libya campaign. The Obama view was not, as Republican administrations since Nixon have asserted, that the resolution was an unconstitutional intrusion on presidential prerogatives. Rather, it took aim at the resolution’s definition of “hostilities” — a term consciously adopted to include actions far short of war — and argued that the operations in Libya could not be viewed as covered. State Department Legal Advisor Harold Koh advanced this view in a hearing before Congress on June 15, the same date on which the Obama team delivered its report on actions in Libya.

At this point, US involvement in the Libyan campaign consisted of “occasional strikes by unmanned Predator UAVs,” the report argued. The administration was trying to saddle the term “hostilities” with the relatively narrow constitutional sense of the word “war,” but Congress plainly opted to use “hostilities” in order to capture a far wider array of military actions. As various scholars have noted, “hostilities” has a well-established meaning in international humanitarian law: “the (collective) resort by the parties to the conflict to means and methods of injuring the enemy.” House Speaker John Boehner and Senate Majority Whip Dick Durbin shared the same assessment: The notion that lethal drone strikes are not “hostilities” under the War Powers Resolution “doesn’t pass a straight-face test.”

Obama’s engagement with the Constitution and domestic law thus consisted of a rubber-stamp legal opinion from the OLC that made policy assumptions publicly contradicted by senior administration national security spokesmen, and a series of cute word games to deny application of the War Powers Resolution. Congress, moreover, failed to stand up for its prerogatives either by explicitly authorizing the campaign or by challenging it. Congressional leaders were too obsessed with partisan gamesmanship and too indifferent to the fate of their own constitutional powers to do either. The Libya campaign thus turns into another vindication of executive war-making powers, and a demonstration of Congress’s institutional lack of gravitas when dealing with minor foreign conflict.

Enter Resolution 1973, which the Security Council adopted on March 17. There were three provisions at the core of the resolution: a call for an immediate ceasefire and an end to violence against civilians; the establishment of a no-fly zone over Libya; and authority to use “all necessary force” to protect civilians and civilian-populated areas while prohibiting the deployment of a “foreign occupation force.” As the resolution was adopted, forces loyal to Gaddafi were preparing an assault on Benghazi, the rebel stronghold. Gaddafi himself made statements threatening the violent taking of the city and the “house-by-house” extermination of anti-government protesters.

His comments were sufficiently unhinged, and the threat of a bloodbath sufficiently clear, that the Arab League lined up in support of the resolution and even Russia and China — which had threatened a veto of the resolution — switched their position to abstain instead. Gaddafi embraced the ceasefire call, but his forces continued their attacks on civilians unabated — satisfying the resolution’s preconditions for the use of military force.

While much of the military operations in Libya were plainly within the mandate of Resolution 1973, some aspects exceeded it.

For instance, attacks fairly early in the conflict targeted command-and-control centres of the Gaddafi regime. Such steps would be routine in wartime and would plainly be authorised under the laws of armed conflict. But it’s not so clear that they were authorised by Resolution 1973, the authority of which rested on the doctrine of “responsibility to protect” (R2P): the notion, adopted by the UN in 2005, that intervention is justified to protect a civilian population from harm, even at the hands of its own leaders. After all, strikes were mounted against military positions far away from the attacks on civilians and with no apparent linkage to them. Moreover, as the war progressed, the posture of the fading Gaddafi regime became increasingly defensive.

The final weeks of the campaign put this in sharpest perspective, as Gaddafi and his final core group of retainers withdrew to his hometown of Sirte, ultimately fleeing in a convoy that was fired upon by Nato aircraft and an American Predator drone, destroying two vehicles.

Libyan authorities have denied an independent autopsy that might show conclusively the cause of Gaddafi’s death — which may have been shots fired after he surrendered and was in rebel custody — but the role played by Nato in his final moments points to the near perfect inversion of the mission. Instead of protecting civilians from attack by Gaddafi and his forces, they were attacking a fleeing and clearly finished Gaddafi.

At this point, some members of the Security Council clearly feel they got suckered. They voted for a resolution to protect the people of Benghazi from slaughter and saw their authority invoked to depose Gaddafi and install a new government. That will have consequences for future humanitarian crises. Russia and China have now blocked Security Council resolutions targeting Syria. Russian President Dmitri Medvedev has made clear that Russia supports demands for reform in Syria and abhors the use of violence against demonstrators, but has been equally clear that Russia cannot risk a repeat of the Libyan example.

Nato’s operations in Libya began as a valid demonstration of the use of military force to protect civilians. But they evolved quickly into an exercise in regime change. In the wake of Libya, the Security Council is unlikely to embrace another R2P operation anytime soon. And that is bad news for the people of Damascus and Hama, as well as for advocates of the responsibility to protect.

Foreign Policy

Chomsky: US drone killings are state terror

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The U.S. policy of targeting terror suspects in foreign countries using unmanned aerial vehicles amounts to “state terror”, leading academic Professor Noam Chomsky has said.

“There is no justification for targeted assassination,” Chomsky said in an interview with PublicServiceEurope.com which was published on Friday.

“There were things going on before, under the last president, but the Obama administration has extended earlier procedures to a global assassination campaign directed at people suspected of encouraging others to carry out what the U.S. calls terrorist acts. What are called ‘terrorist acts’ also raises rather serious questions — and that’s an understatement,” he said.

Asked if he believed Obama’s foreign policy in relation to drone strikes had been worse than that of his predecessor George W Bush, Chomsky said: “In terms of state terror and that’s what I would call this, I have to say yes — and that has already been pointed out by military analysts.”

“The Bush administration policy was to kidnap suspects and send them to secret prisons where they were not treated very nicely, as we know. But the Obama administration has escalated that policy to you don’t kidnap them, but you kill them. Now remember, these are suspects — even in the case of Osama bin Laden.” defencemanagement.com

FACTS & FIGURES

Since 2001, the U.S. government is known to have used drones to mount lethal attacks in at least six countries: Afghanistan, Iraq, Libya, Pakistan, Somalia and Yemen. commondreams.org

The Washington Post has reported that the Obama administration is building a constellation of secret drone bases in the Arabian Peninsula and the Horn of Africa, including one site in Ethiopia. Antiwar

Bombing raids by robotic unmanned U.S. aircraft dramatically increased under President Barack Obama. Dawn

Human rights groups have raised concerns that the use of drones by the CIA has allowed the conduct of a secret assassination campaign abroad without public scrutiny and little oversight by lawmakers in Congress. AFP

The U.S. drone campaign is deeply unpopular among anti-American Pakistani public and the government has publicly demanded an end to the attacks. AFP

Barack Obama’s administration authorized the assassination of the radical cleric, Anwar al-Awlaki, a rare move against an American citizen. Al-Awlaki was killed by a U.S. drone strike in Yemen on October 14.

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Perdido Hub

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Located at Alaminos Canyon Block 857 approximately 220 miles (354 kilometers) from Galveston, Texas in the Gulf of Mexico, is Perdido, an oil and gas spar production facility. Shell, 35% shareholder and operator, along with BP, 27.5%, and Chevron, 37.5%, are developing the regional host facility.

Since the project began, multiple world records were made in the offshore industry. Perdido is the deepest oil development, the deepest drilling and production platform, and will produce from the deepest subsea well in the world.

The hub produces from three fields: Great White, Silvertip and Tobago. The fields are situated on the Perdido fold belt, offshore in the deep northwestern section of the Alaminos Canyon outer continental shelf area. The fold belt region is in water depths ranging from 7,546 to 9,843 feet (2,300 to 3,000 meters), which are considered some of the deepest waters in the gulf.

In order to develop the wells in ultra deep depths, and reduce costs, the companies decided to use a common processing hub, Perdido. The spar incorporates drilling and capabilities to gather, process and export production within a 30-mile (48-kilometer) radius.

Fields

Development drilling of the fields commenced in July 2007 and was performed by the Noble Clyde Boudreaux semisubmersible-drilling rig. Shell set a world record in December 2008 for the deepest completed offshore production well, at about 2,852 meters (9,356 feet) below the water’s surface. Even though the first of the three fields, Great White, was discovered in 2002, the companies agreed to move forward with development in 2007.

Great White

Great White is located on Alaminos Canyon Block 857 in a water depth of 8,000 feet (2,438 meters), and is owned and operated by Shell, 33.34%, while Chevron and BP each hold a 33.3% interest.

Discovered in May 2002 by the Deepwater Nautilus semisub, the discovery well was drilled to a true vertical depth of 19,907 feet (6,068 meters). Then in 2004, an appraisal well was drilled to a true vertical depth of 15,035 feet (4,586 meters). Shell drilled a total of five wells at Great White, spudding the fifth well in March 2004.

Silvertip

Silvertip is located in Alaminos Canyon Block 815 and is 60% owned by Chevron, while operator Shell owns the remaining 40% interest. The field was discovered in August 2004 in 9,200 feet of water (2,804 meters) and drilling reached a total depth of 14,778 feet (4,504 meters).

Tobago

Considered the world’s deepest subsea completion to date, Tobago is located in Alaminos Canyon Block 859 in 9,600 feet (2,926 meters) of water, which surpassed the previous record set by Silvertip. Shell, the operator, owns 32.5%, along with its co-owner Chevron, 57.5%, and Nexen, 10%. In 2004, the well was drilled to a total depth of 18,510 feet (5,642 meters), and then a sidetrack well was drilled to 18,425 feet (5,616 meters).

Subsea Development

Because the field’s water depths are greater than previously encountered anywhere in the world, and the need to drill multiple wells from several fields to reduce cost and environmental impact, the companies decided to use a 555-foot (169-meter) spar instead of a typical tension leg platform. The cylinder spar is a partially submerged offshore drilling and production platform that is particularly adapted to ultra-deepwater and fierce hurricane weather.

Once the facility was chosen and construction began, subsea development commenced.

Oceaneering International received a contract by Shell for the fabrication and installation of subsea hardware for the Perdido project. The hardware included 29 flowlines and well jumper spools, and a pipeline tie-in sled.

FMC Technologies performed the subsea completion and processing systems, which included 17-subsea trees, two subsea manifolds, five-subsea caisson separation and boosting systems, a topside and subsea controls, and related subsea equipment. Also included in the scope of work is the design of the steel catenary risers, top tension risers and umbilicals.

Acergy North won the transportation and installation contract for the subsea production umbilicals. The work scope included 37 miles (60 kilometers) of steel-tube super duplex subsea production umbilicals, four dynamic and three static, associated flying leads and subsea hardware.

Five risers hang down to the seafloor, and then branch out into clusters of connected wells. On the seafloor, 22 wells, extending more than 14,000 feet (4,267 meters) from the surface, will be linked to the Perdido spar, with an additional eight tie-backs from subsea completions. Fifteen hundred horsepower electric pumps will bring oil to the surface against extreme pressures from three undersea fields, while gas is separated on the sea floor and sent to the production unit.

Perdido Spar

The spar facility was installed in August 2008. The Perdido spar is a massive steel structure that is 568 feet (173 meters) tall, 112 feet (34 meters) in diameter and floats on a sunken cylinder. Perdido was constructed by Technip in Pori, Finland, and began its journey to Texas in May 2008. Kiewit is constructing the topsides in Ingleside, Texas.

Moored in 7,817 feet (2,383 meters) of water, nine chains and polyester rope mooring lines, roughly 2 miles (3 kilometers) in length, secure the 50,000-ton (45,359-tonne) spar. On this project, Heerema Marine Contractors installed the world’s deepest permanent mooring anchor pile in 8,631 feet (2,632 meters) of water using the deepwater crane vessel (DCV) Balder.

In 2006, Shell awarded Technip a contract to provide the Engineering Procurement and Construction (EPC) of the spar hull and mooring system. The contract covers the design and fabrication; load out onto a transportation vessel, and transportation and quayside delivery.

Production

The facility began production on March 31, 2010 from five wells on the Great White field, with all wells expecting to come online by 2016. The spar is designed to produce 100,000 bopd and 200 MMcf/d (6 MMcm/d).

The spar’s life expectancy is 25 years. Shell did not disclose the cost of the facility, but insiders are estimating costs to total $4 billion, given the size and complexity of the project.

Further Development

While development is on going in this area, Chevron and partners continue to evaluate development alternatives for other discoveries in the Great White-Perdido-Foldbelt area, which include Tiger and Trident.

Source

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