This Wednesday will be the tenth anniversary of the US prison camp at Guantánamo Bay. Opened by Bush and, despite all his campaign promises, kept open by Barack Obama, this camp represents the warped state the rule of law has been put into in the US by both these presidents.
The New York Times has an impressive op-ed by Lakhdar Boumediene, one of the most well-known former Guántanamo prisoners, who was held innocent and subjected to enhanced interrogation techniques for seven years before he was released by court order.
Boumediene was head of the Red Crescent’s humanitarian aid for children department in Bosnia-Herzegovina before he was captured off the streets on October 19, 2001 by the US Army, deported to Gitmo, and held incommunicado without recourse to a lawyer, the court system, or Geneva protections. While he was subjected to stress techniques, his two daughters had to grow up for seven years without him. Only when the Supreme Court intervened to stop the Bush administration’s lawless practices, Boumediene was granted access to court, found innocent, and released.
His case represents the entire argument against Guantánamo. No government on Earth should be allowed to indefinitely detain people and treat them like they want without any check by an independent judiciary. That is what we have human rights for. Barack Obama, moreover, is the president who has turned this once controversial policy into bipartisan consensus. Under this president, indefinite detention has even been signed into law.
So to remind everyone of this poignant fact, here’s the op-ed by Boumediene. There’s another one too, by the way, from yet another Guantánamo survivor, Murat Kurnaz.
ON Wednesday, America’s detention camp at Guantánamo Bay will have been open for 10 years. For seven of them, I was held there without explanation or charge. During that time my daughters grew up without me. They were toddlers when I was imprisoned, and were never allowed to visit or speak to me by phone. Most of their letters were returned as “undeliverable,” and the few that I received were so thoroughly and thoughtlessly censored that their messages of love and support were lost.
Some American politicians say that people at Guantánamo are terrorists, but I have never been a terrorist. Had I been brought before a court when I was seized, my children’s lives would not have been torn apart, and my family would not have been thrown into poverty. It was only after the United States Supreme Court ordered the government to defend its actions before a federal judge that I was finally able to clear my name and be with them again.
I left Algeria in 1990 to work abroad. In 1997 my family and I moved to Bosnia and Herzegovina at the request of my employer, the Red Crescent Society of the United Arab Emirates. I served in the Sarajevo office as director of humanitarian aid for children who had lost relatives to violence during the Balkan conflicts. In 1998, I became a Bosnian citizen. We had a good life, but all of that changed after 9/11.
When I arrived at work on the morning of Oct. 19, 2001, an intelligence officer was waiting for me. He asked me to accompany him to answer questions. I did so, voluntarily — but afterward I was told that I could not go home. The United States had demanded that local authorities arrest me and five other men. News reports at the time said the United States believed that I was plotting to blow up its embassy in Sarajevo. I had never — for a second — considered this.
The fact that the United States had made a mistake was clear from the beginning. Bosnia’s highest court investigated the American claim, found that there was no evidence against me and ordered my release. But instead, the moment I was released American agents seized me and the five others. We were tied up like animals and flown to Guantánamo, the American naval base in Cuba. I arrived on Jan. 20, 2002.
I still had faith in American justice. I believed my captors would quickly realize their mistake and let me go. But when I would not give the interrogators the answers they wanted — how could I, when I had done nothing wrong? — they became more and more brutal. I was kept awake for many days straight. I was forced to remain in painful positions for hours at a time. These are things I do not want to write about; I want only to forget.
Unbeknownst to many people, Barack Obama’s ascendency to the presidency has, despite his 2008 campaign promises, done almost nothing to reverse one of the most heinous policies of the Bush-Cheney era: the practice of indefinitely detaining people whom the US state deems “enemy combatants”, or terrorism suspects. Without charges and without recourse to a judge. The mere charge of being a terror suspect can still lead to uncontrollable, unaccountable detention by the American government; this is viewed by both Bush-Cheney and Obama as an inherent, presidential prerogative. No one who is not out of his right mind would not view this as in straightforward contradiction to the rule of law.
But President Obama’s record has just gotten even worse. After months of threatening to veto a bill put forward by the partly Republican-controlled Congress allowing the U.S. military to indefinitely detain anyone, including American citizens, anywhere in the world, including in the U.S., without charges, he has now said that he will sign it into law.
Thereby Obama, the 2008 darling of liberals and progressives, has become the president who has made extrajudicial indefinite detention at the charge of being an “enemy combatant” official law and policy, rather than an exception. Obama is even worse than Bush-Cheney! This should be clear to anyone who is still an Obama fanboy.
When in the 1950s, the McCarthy era, Congress presented Harry Truman with a similar bill allowing the indefinite detention of Communists and other ‘subversive elements’ without charges, Truman vetoed it. But Obama is not such a person. The right not to be detained forever by the state without a fair trial is a fundamental human right, part of the Western juridical tradition, that has just been violated possibly forever by this president.
This becoming law will also mean two things. First, that the U.S. military can now be involved in domestic policing activities (!). Second, that the battleground of the so-called ‘War on Terror’ has now been extended to American soil too. Can you believe that?
At this point, I would officially hope that Obama gets defeated at the polls next year. If Ron Paul’s ideas on economic policy weren’t so nutty, I would support him – a Republican - if he was the nominee.
In one of the least surprising developments imaginable, President Obama – after spending months threatening to veto the Levin/McCain detention bill – yesterday announced that he would instead sign it into law (this is the same individual, of course, who unequivocally vowed when seeking the Democratic nomination to support a filibuster of “any bill that includes retroactive immunity for telecom[s],” only to turn around – once he had the nomination secure — and not only vote against such a filibuster, but to vote in favor of the underlying bill itself, so this is perfectly consistent with his past conduct). As a result, the final version of the Levin/McCain bill will be enshrined as law this week as part of the the 2012 National Defense Authorization Act (NDAA). I wrote about the primary provisions and implications of this bill last week, and won’t repeat those points here.
The ACLU said last night that the bill contains “harmful provisions that some legislators have said could authorize the U.S. military to pick up and imprison without charge or trial civilians, including American citizens, anywhere in the world” and added: “if President Obama signs this bill, it will damage his legacy.” Human Rights Watch said that Obama’s decision “does enormous damage to the rule of law both in the US and abroad” and that “President Obama will go down in history as the president who enshrined indefinite detention without trial in US law.”
Both groups pointed out that this is the first time indefinite detention has been enshrined in law since the McCarthy era of the 1950s, when — as the ACLU put it — “President Truman had the courage to veto” the Internal Security Act of 1950 on the ground that it “would make a mockery of our Bill of Rights” and then watched Congress override the veto. That Act authorized the imprisonment of Communists and other “subversives” without the necessity of full trials or due process (many of the most egregious provisions of that bill were repealed by the 1971 Non-Detention Act, and are now being rejuvenated by these War on Terror policies of indefinite detention). President Obama, needless to say, is not Harry Truman. He’s not even the Candidate Obama of 2008 who repeatedly insisted that due process and security were not mutually exclusive and who condemned indefinite detention as “black hole” injustice.
Barack Obama has abandoned a commitment to veto a new security law that allows the military to indefinitely detain without trial American terrorism suspects arrested on US soil who could then be shipped to Guantánamo Bay.
Human rights groups accused the president of deserting his principles and disregarding the long-established principle that the military is not used in domestic policing. The legislation has also been strongly criticised by libertarians on the right angered at the stripping of individual rights for the duration of “a war that appears to have no end”.
The law, contained in the defence authorisation bill that funds the US military, effectively extends the battlefield in the “war on terror” to the US and applies the established principle that combatants in any war are subject to military detention.
The legislation’s supporters in Congress say it simply codifies existing practice, such as the indefinite detention of alleged terrorists at Guantánamo Bay. But the law’s critics describe it as a draconian piece of legislation that extends the reach of detention without trial to include US citizens arrested in their own country.
Senator Lindsey Graham said the extraordinary measures were necessary because terrorism suspects were wholly different to regular criminals.
“We’re facing an enemy, not a common criminal organisation, who will do anything and everything possible to destroy our way of life,” he said. “When you join al-Qaida you haven’t joined the mafia, you haven’t joined a gang. You’ve joined people who are bent on our destruction and who are a military threat.”
Graham added that it was right that Americans should be subject to the detention law as well as foreigners. “It is not unfair to make an American citizen account for the fact that they decided to help Al Qaeda to kill us all and hold them as long as it takes to find intelligence about what may be coming next,” he said. “And when they say, ‘I want my lawyer,’ you tell them, ‘Shut up. You don’t get a lawyer.’”
Other senators supported the new powers on the grounds that al-Qaida was fighting a war inside the US and that its followers should be treated as combatants, not civilians with constitutional protections.
“We’re talking about American citizens who can be taken from the United States and sent to a camp at Guantánamo Bay and held indefinitely. It puts every single citizen American at risk,” he said. “Really, what security does this indefinite detention of Americans give us? The first and flawed premise, both here and in the badly named Patriot Act, is that our pre-9/11 police powers were insufficient to stop terrorism. This is simply not borne out by the facts.”
Paul was backed by Senator Dianne Feinstein.
“Congress is essentially authorising the indefinite imprisonment of American citizens, without charge,” she said. “We are not a nation that locks up its citizens without charge.”
So let it be noted that Obama here has followed the line of the most conservative Republicans.
The Drone War is Obama’s original contribution to the “War” on Terror. In his term, by the president’s order more “terrorists” – that is, people suspected of being terrorists without any sort of judicial process involved – have been assassinated using unmanned drones than during the entire Bush administration.
While the Obama administration may make it look like there is nothing to worry about, of course there is. Drone strikes take place in foreign, sovereign countries, and are committed at the behest of the executive branch in the United States. These are extrajudicial, executive branch assassinations of people that have not been given any sort of trial.
With this practice, Obama effectively continues the “war model” approach to counterterrorism that was established by Bush-Cheney. In this paradigm, the world is a global battlefield in which anyone deemed a “terrorist” by the president of the United States can be summarily executed. This process takes place entirely outside the rule of law.
Unless you’re a neoconservative with no brain, you may appreciate what kind of precedents this creates. Imagine Russia taking out people it deems “terrorists” in foreign countries – for instance, in the US – and the response that would elicit. As a matter of fact, Russia has already expanded its definition of terrorists and embarked on its own policy of killing them internationally.
David Cole explains exactly why the Obama administration’s policy on drone strikes is so lawless and dangerous. It is to be noted, moreover, that there seems to be a rift within the administration about this policy.
On Friday, a front-page New York Times story reported that a rift has emerged within the Obama Administration over whether it has authority to kill “rank-and-file” Islamist militants in foreign countries in which there is not an internationally recognized “armed conflict.” The implications of this debate are not trivial: Imagine that Russia started killing individuals living in the United States with remote-controlled drone missiles, and argued that it was justified in doing so because it had determined, in secret, that they posed a threat to Russia’s security, and that the United States was unwilling to turn them over. Would we calmly pronounce such actions compliant with the rule of law? Not too likely.
And yet that is precisely the argument that the Obama Administration is now using in regard to American’s own actions in places like Yemen and Somalia—and by extension anywhere else it deems militant anti-US groups may be taking refuge. On the same day the Times article appeared, John Brennan, President Obama’s senior advisor on homeland security and counterterrorism, gave a speech at Harvard Law School in which he defended the United States’ use of drones to kill terrorists who are far from any “hot battlefield.” Brennan argued that the United States is justified in killing members of violent Islamist groups far from Afghanistan if they pose a threat to the United States, even if the threat is not “imminent” as that term has traditionally been understood. (As if to underscore the point, The Washington Post reports that the US has “significantly increased” its drone attacks in Yemen in recent months, out of fears that the government may collapse.)
In international law, where reciprocity governs, what is lawful for the goose is lawful for the gander. And when the goose is the United States, it sets a precedent that other countries may well feel warranted in following. Indeed, exploiting the international mandate to fight terrorism that has emerged since the September 11 attacks, Russia has already expanded its definition of terrorists to include those who promote “terrorist ideas”—for example, by distributing information that might encourage terrorist activity— and to authorize the Russian government to target “international terrorists” in other countries. It may seem fanciful that Russia would have the nerve to use such an authority within the United States—though in the case of Alexsander Litvinenko it appears to have had few qualms about taking extreme measures to kill an individual who had taken refuge in the United Kingdom. But it is not at all fanciful that once the US proclaims such tactics legitimate, other nations might seek to use them against their less powerful neighbors.
Yet as the New York Times report makes clear, when it comes to targeted killings, there is serious dispute, even within the administration, about what the law permits. Some, like State Department legal advisor Harold Koh, take the position that beyond the battlefield, we can attack only those “high-value individuals” who are actually engaged in plotting attacks on the United States, and only where their threats are specific enough to allow the US to claim the right to self-defense granted to all states under the UN Charter. The Charter permits nations to use unilateral military force only in self-defense against an armed attack, and has been interpreted to permit self-defense against threatened attacks only when they are imminent. Defense Department lawyers maintain, by contrast, that the ongoing war against al-Qaeda authorizes us to kill any of the thousands of rank and file members not only of al-Qaeda itself, but also of al-Qaeda in the Arabian Peninsula—a Yemen-based group founded in 2009—and of al-Shabab, a Somalia-based militant group. Although both of the latter organizations were founded well after the September 11 attacks, the Defense Department considers them fair game because it deems them to be associated with al Qaeda.
Brennan further argued that the UN Charter requirement that a threat be imminent before a nation can exercise its right of self-defense makes less sense when a country faces a threat from a clandestine terrorist group, whose threats may be harder to spot in advance. But the purpose of that requirement was to ensure that military force is truly a last resort. Too many wars have been launched on the basis of ill-defined future threats. The watered-down imminence that Brennan seemed to advocate, especially when coupled with his suggestion that even a temporary disruption of “capabilities” is sufficient reason to strike, would seem to permit targeting even where no attack is in fact imminent. Such reasoning could also be used to justify lethal force in cases where it might well be possible to foil a possible attack through arrest, criminal prosecution, interdiction, or other means. As many countries, including Great Britain, Germany, Spain, and, Italy have shown, the fact that organized groups seek to engage in politically motivated violence does not necessitate a military response.
The legal parameters defining the use of military force against terrorists are unquestionably difficult to draw. On the one hand, no one disputes that it is permissible to kill an enemy soldier on the battlefield in an ongoing armed conflict. On the other hand, absent extreme circumstances, constitutional and international law bar a state from killing a human being in peacetime without a trial (and even then, many authorities hold that capital punishment violates international human rights law). Al-Qaeda has not limited its fight to the battlefield in Afghanistan, and most agree that, as long as sovereignty concerns are met, the use of military force can follow this enemy beyond the battlefield at least in some situations. Killing Osama bin Laden in Pakistan—whose tribal areas are for all practical purposes part of the theater of war—was the justified targeting of the enemy’s leader. But are al-Qaeda in the Arabian Peninsula or al-Shabab the same “enemy,” or merely sympathetic adherents of a terrorist philosophy? They certainly did not attack us on September 11, nor are they harboring those who did. Can we summarily execute all terrorists who we fear might someday commit a terrorist act against us? Brennan’s speech offered no answers.
And that makes it especially disturbing that the contours of US policy and practice in this area remain largely secret. Presumably the administration has developed criteria for who can be killed and why, and a process for assessing who fits those criteria and when their targeting is justified. But if so, it hasn’t told us. Instead, it exercises the authority to kill, not only in Afghanistan and the border regions of Pakistan, but in Yemen,Somalia, and presumably elsewhere, based on a secret policy. We learn more about its outlines from leaks to The New York Times than from the cryptic comments of US officials in speeches like Brennan’s. If we are engaging the enemy within the rule of law, as Brennan insisted we must, we should have the courage to make our policies transparent, so that the people, both in the United States and beyond, can judge for themselves. And if, by contrast, we continue to justify such practices in only the vaguest of terms, we should expect other countries to take them up—and almost certainly in ways we will not find to our liking.
In yet another confirmation that the Obama administration’s handling of counterterrorism policy is nothing but a continuation and, in fact, reinforcement of Bush-era policies, the US Department of Justice decided on Thursday that all cases against (former) low-level CIA and military employees suspected of having employed torture, sometimes leading to murder, are to be dropped, except two.
So there’s not gonna be any accountability for the breaches of human rights and the Geneva Conventions conducted under the last administration in the name of the ‘War on Terror’.
Back in August 2009, the Obama White House already decided that there would be no torture investigations regarding former administration officials (Bush, Cheney, Rumsfeld) and government lawyers (John Yoo, Jay Bybee) who invented and implemented the ‘legal’ architecture for things like indefinite detention, military commissions and ‘enhanced interrogation methods’ (torture), which eventually spread from Guantánamo Bay and the secret ‘black sites’ to Abu Ghraib and Afghanistan. Neither would there be investigations regarding CIA and military employees who stayed ‘within the lines’ of the new torture regime (even though a lot of people, including JAG lawyers, protested at that time).
The only exception to this immunity granted by Obama would be for those employees who went beyond even what was permitted by the Bush administration in terms of torture. And of those 101 cases, all are now dropped except two.
Those two cases are the most gruesome imaginable: one is of a detainee who froze to death in an American secret prison in 2002 after being stripped and chained to the floor, and the other is of the Abu Ghraib detainee who was photographed in 2003 with a guard holding her thumbs up. All other horrors perpetrated under the Bush administration will now be fully, legally protected.
Change we can believe in. And what’s more: except for one executive order ordering a halt to ’enhanced interrogation methods’, there’s nothing that can prevent a future president from starting to employ torture again…
Consider what’s being permanently shielded from legal accountability. The Bush torture regime extended to numerous prisons around the world, in which tens of thousands of mostly Muslim men were indefinitely imprisoned without a whiff of due process, and included a network of secret prisons – ”black sites” — purposely placed beyond the monitoring reach of even international human rights groups, such as the International Red Cross.
Over 100 detainees died during U.S. interrogations, dozens due directly to interrogation abuse. Gen. Barry McCaffrey said: ”We tortured people unmercifully. We probably murdered dozens of them during the course of that, both the armed forces and the C.I.A.” Maj. Gen. Antonio Taguba, who oversaw the official investigation into detainee abuse, wrote: ”there is no longer any doubt as to whether the current administration has committed war crimes. The only question that remains to be answered is whether those who ordered the use of torture will be held to account.”
Thanks to the Obama DOJ, that is no longer in question. The answer is resoundingly clear: American war criminals, responsible for some of the most shameful and inexcusable crimes in the nation’s history — the systematic, deliberate legalization of a worldwide torture regime — will be fully immunized for those crimes. And, of course, the Obama administration has spent years just as aggressively shielding those war criminals from all other forms of accountability beyond the criminal realm: invoking secrecy and immunity doctrines to prevent their victims from imposing civil liability, exploiting their party’s control of Congress to suppress formal inquiries, and pressuring and coercing other nations not to investigate their own citizens’ torture at American hands.
All of those efforts, culminating in yesterday’s entirely unsurprising announcement, means that the U.S. Government has effectively shielded itself from even minimal accountability for its vast torture crimes of the last decade. Without a doubt, that will be one of the most significant, enduring and consequential legacies of the Obama presidency.
As Glenn Greenwald notes, the Obama administration has blocked all attempts by detainees to sue torture facilitators with its generous use of the state secrets doctrine.
What that means is that the only thing preventing a future Republican president from using torture techniques is a flimsy, reversible executive order from the president himself, because no court has ever made a determination that the interrogation techniques themselves were illegal. Both the new Secretary of Defense Leon Panetta, and the new CIA chief David Petraeus, both once among the most prominent opponents of torture, have now expressed support for the idea of using coercive interrogations in “limited” circumstances. Torture became an issue of partisan dispute because Republicans rallied to the defense of their former president. What happens if the same thing happens with Obama supporters, and they feel the need to minimize the magnitude of what happened under Bush in order to defend the lack of accountability sought by their president?
The fact that so few people, if any, will face professional, civil or criminal sanction for torture bothers me far less than the possibility of torture itself becoming American policy again. Between the absence of strong legal barriers to torture and the deterrent factor of criminal or civil accountability, that outcome seems quite possible.
The Wall Street Journaland The Washington Post both report that the Obama administration plans to ‘dramatically escalate’ the CIA-led drone bombing campaign in Yemen, without (just like in Libya) any form of congressional approval.
This leads Kevin Drum of Mother Jones to ask how it is that the massive operation of unmanned drones apparently allows a government to wage an undeclared and therefore illegal war in another country, and what it means for the future of robotic warfare.
I know I’m not the first to ask this, but exactly what theory of military action allows President Obama to do this without congressional approval? In Afghanistan and Nicaragua in the 80s, you could argue that we were merely funding allies, not fighting a war ourselves. In Grenada and Panama, you could argue that we were merely pursuing small-scale police actions. In Pakistan, you can argue that our operations are all part of the Afghanistan war. You might not like any of those arguments, but at least they’re something.
But what’s the theory here? This is obviously not a short-term operation (it began well over a year ago). It’s obviously not part of the Afghanistan war. You’d have to twist yourself into a pretzel to pretend that the post-9/11 AUMF applies here. (The fact that Congress is considering an extension of the 2001 AUMF in order to cover operations like this is a tacit admission that the old AUMF doesn’t apply.) Nor does the fact that Yemen’s president has given it his blessing really mean anything from a war powers standpoint.
In practice, the theory seems to be that unmanned drones are somehow not as real as actual manned fighter jets. After all, does anyone seriously believe that Obama could send sortie after sortie of F-22s over Yemen and not have anyone complain about it? I doubt it. But as long as they’re just drones, no problem. Given the inevitable growth of robotic warfare in both the near and long term, this doesn’t bode well for the future.
Both The Wall Street Journal and The Washington Postreport today that the Obama administration is planning to exploit the disorder from the civil war in Yemen by dramatically escalating a CIA-led drone bombing campaign. In one sense, this is nothing new. Contrary to false denials, the U.S., under the 2009 Nobel Peace Prize winner, has been bombing Yemen for the last two years, including one attack using cluster bombs that killed dozens of civilians. But what’s new is that this will be a CIA drone attack program that is a massive escalation over prior bombing campaigns.
The one point of Kevin’s with which I disagree is his last one: I absolutely believe that if he sent F-22s into Yemen to bomb, very few people would object. Not only has virtually nobody objected to prior bombing campaigns in that country, but he’s currently waging a war in Libya without a whiff of Congressional approval, and nobody seems to mind. That’s because — for all the Democratic mockery of Richard Nixon’s “If-the-President-does-it-it’s-not-illegal“ decree, bolstered by the Cheney/Yoo/Addington theory of presidential omnipotence — that’s exactly how this President is viewed, by his followers and himself. If he wants to fight a war somewhere, that — his will, his decree — is all that is needed. Such matters, as the once-discredited-but-now-vindicated John Yoo put it, “are for the President alone to decide.”
Interesting piece on Salon that once again highlights how the Obama era, in terms of counterterrorism policy, has for the most part been one of continuation and intensification of the Bush-Cheney era, rather than the break it was promised to be.
At Bagram Air Base in Afghanistan, thousands of detainees are being held under conditions defying international law. And while at Guantanamo Bay the number of detainees is relatively stable, the inmate population at Bagram is growing. Because the Obama administration, like the Bush-Cheney administration before it, regards these detainees – people captured during the Afghanistan war or in the “war” on terror – as “illegal enemy combatants” or “unprivileged belligerents” (a legal category made up by the Bush administration that does not exist in international law), they are deprived of basic legal rights. That is, they have no idea what they are charged with, do not have access to proper legal defence, and so can be held indefinitely.
The article’s author Justin Elliott rightly calls this ‘the Gitmo no one talks about’. Hopefully it will after this article and the Human Rights First report it refers to, because it once again highlights how Obama in this respect is nothing different from his predecessors.
President Obama has presided over a threefold increase in the number of detainees being held at the controversial military detention center at Bagram Air Base, the Afghan cousin of the notorious prison at the Guantanamo Bay Naval Base in Cuba. It’s the latest piece of news that almost certainly would be getting more attention — especially from Democrats — if George W. Bush were still president.
There are currently more than 1,700 detainees at Bagram, up from over 600 at the end of the Bush administration.
The situation at Bagram, especially the legal process that determines whether detainees are released, is the subject of a new report by Human Rights First. It finds that the current system of hearings for detainees “falls short of the requirements of international law” because they are not given “an adequate opportunity to defend themselves against charges that they are collaborating with insurgents and present a threat to U.S. forces.” Human Rights First also argues that cases of unjustified imprisonment are damaging the broader war effort by undermining Afghans’ trust in the military.
What legal status do the detainees at Bagram have? Are they prisoners of war?
The U.S. doesn’t call any of the prisoners we keep in the context of the war on terror — including Afghanistan — “prisoners of war.” They’re called “unprivileged belligerents” which means that they don’t have POW status. That’s because we’re at war with organizations like the Taliban or al-Qaida rather than a country or official government. But these detainees are supposedly being held under the rules of armed conflict.
What does this mean in practice about what sort of legal process they face and what rights these detainees have?
It depends who you ask. There are no laws under the rules of war governing how you treat detainees in this kind of armed conflict. So the position of most other civilized nations, most European commissions and human rights bodies is that international human rights laws should apply. The U.S. government says that those laws don’t apply beyond its own borders, and therefore no laws apply.
Early on at Bagram, there were terrible abuses. There were reports of people being killed in custody and tortured. We believe that is not happening anymore. There is still something called the black jail at Bagram, what the government calls a “screening facility.” It’s called the black jail because there are no windows and no natural light, and no one knows what time of day it is. The conditions there are much worse than at the main prison. People who have been at the black jail complain of being strip-searched in humiliating ways, being subjected to extreme cold temperatures, lights on 24 hours a day, and not having a mattress. But still nothing as bad as the kind of torture that was reported early on.
You went to Afghanistan and attended some of the hearings for Bagram detainees. How does this all work and what did you find?
They are supposed to get a hearing on their detention after 60 days and then at six months and every six months after. The hearings sound good on paper but then when you actually attend them — I hate to use the cliché — it’s Kafkaesque. They’re not allowed to see much of the evidence against them because it’s classified. So a military person will stand up and read the charges — say that the detainee was found to be an IED maker. And the accused will say, “Well what is the evidence against me?” And the military won’t produce it because it’s classified. The accused does not get a lawyer; they get what’s called a personal representative. That’s a field-grade soldier who is assigned to represent a detainee — but they have no legal training beyond a 35-hour course. Many former detainees told me they did not trust their representatives, who are uniformed soldiers. And at least in the public sessions, we did not see the representatives ever challenge evidence. There are also classified sessions, where we of course don’t know what happens.
Wonderbaarlijk genoeg leidt de dood van Osama bin Laden er ineens toe dat in Nederland, in kranten en op televisie, de buitenlegale maatregelen van opeenvolgende Amerikaanse regeringen onderwerp van debat zijn. Onbemande vliegtuigjes, Guantánamo Bay, marteling, onbeperkte opsluiting; zaken waar we op deze blog alanderhalfjaaraandachtvoorproberentevragen (weliswaar in het Engels) worden ineens besproken op nationale tv.
Blijkbaar wordt, zodra het zo concreet wordt als de buitenrechtelijke executie van Osama bin Laden, het de Nederlanders opeens te gortig.
Mooi, natuurlijk, maar waar waren alle Nederlandse mainstream media, zoals de Volkskrant en het NRC, het afgelopen decennium? De afgelopen drie jaar in ieder geval vooral druk met het kritiekloos bewonderen van Obama, zonder erop te wijzen dat deze met amper enige wijziging het buitenlegale antiterreurbeleid van Bush en Cheney heeft voortgezet.
Mede debet aan deze nationale hausse van aandacht voor Amerikaanse buitenlegale praktijken is advocaat en internationaal strafrechtgeleerde Geert-Jan Knoops. Afgelopen maandag, toen het nieuws van Bin Laden’s verscheiden nog vers was en gans het Westen (nou ja, de VS) in juichstemming verkeerde, was Knoops de eerste die wees op het illegale karakter van deze actie. Aanvankelijk nog in een zijkolom, maar allengs uitgroeiend tot een van de belangrijkste stemmen in het debat.
Knoops mogen we dan ook wel kwalificeren als een koning. Zo was hij betrokken bij de verdediging van Salid Hamdan, de op Guantánamo Bay opgesloten ’chauffeur van Bin Laden’, wiens rechtszaak een van de belangrijkste werd in de strijd tussen de regering-Bush en het Hooggerechtshof over de rechten van gedetineerden. Knoops was ook de advocaat van Marco Kroon, en volgens de site van KRO’s Oog in oog ‘adviseerde hij zowel Saddam Hoessein als Barack Obama’ (wat dat inhoudt weet ik niet). Daarnaast bepleitte hij allerlei zaken voor de Joegoslavië- Rwanda- en Sierra Leone-tribunalen.
O ja, Knoops is ook bergbeklimmer en diepzeeduiker. En marinier.
In other words, een interessant Mensch om eens een uurtje naar te luisteren, zeker wanneer hij gehakt maakt van het Amerikaanse contraterreurbeleid van het afgelopen decennium, en het buitenlegale karakter daarvan. De Nederlandse Glenn Greenwald:
If Obama can get us out of Iraq, and if he can use his good offices to keep the pressure on the Egyptian military to lighten up, and if he can support the likely UN declaration of a Palestinian state in September, the US will be in the most favorable position in the Arab world it has had since 1956. And he would go down in history as one of the great presidents.
If he tries to stay in Iraq and he takes a stand against Palestine, he risks provoking further anti-American violence. He can be not just the president who killed Bin Laden, but the president who killed the pretexts for radical violence against the US. He can promote the waving of the American flag in major Arab cities. And that would be a defeat and humiliation for Bin Laden and Al-Qaeda more profound than any they could have dreamed.
Add to that, on the domestic level, the pushing through of universal healthcare, hopefully a recovery of the economy, and the legalization of marihuana (just kidding), and you have a pretty succesful president. To use an understatement.
Now to end the Bush-Cheney legal architecture for counterterrorism.
- Edit: Of course there’s still the absurdly high public debt and deficit, which did multiply under this president.
Yesterday, I expressed the hope that with the demise of Osama bin Laden, America could return to being the constitutional democracy with the rule of law that it was before 9/11.
Luckily (and of course), I’m not the only one who sees this as possibly the most important aspect of yesterday’s operation. Here’s probably the best commentary that I’ve read so far in the wake of Bin Laden’s death, by Peter Beinart of The Daily Beast. Beinart argues that now the figurehead of the 9/11 attacks is gone, it’s time to call an end to the so-called ‘war’ on terror. This doesn’t mean that counterterrorism policies should come to a halt! On the contrary, in the coming time period they should probably be increased to prevent retaliation. But it does mean that the ‘war’ on terrorism should cease to be the primary paradigm through which US (and Western) foreign policy operates.
Because let’s face it: the threat of radical islamist terrorism is not the biggest policy problem the West faces. It isn’t now, and it wasn’t after 9/11. If I’d to point at anything, I’d had to choose between the rise of China or the long-term budgetary and financial problems the US and the West are facing. But certainly not the threat of a bunch of medieval rag tag terrorists who, admittedly, can do short-term symbolic (and personal) damage, but do not pose any fundamental threat to the existence of our society in this form.
The terrorist incidents of 9/11 and those after that can, however, present long-term problems when executive powers choose to overreact, and thereby aim to fundamentally transform the structures of constitutional democracy and the rule of law. This is what happened in America under Bush-Cheney, where an emergency became the pretext for a global, unending, infinite ‘war’ on terror in which anything was allowed. That’s when you got ‘enemy combatants’, indefinite detention, torture and a Gulag archipel of ’black sites’ and Guantánamo Bay. By and large, this ‘legal architecture’ for combating terrorism – with the exception of torture – has been retained by Obama, who added drone attacks and the targeting of American citizens abroad of his own.
When a state of emergency ceases to be the exception and starts to be the norm, then you have a problem. Either it expands (and turns on citizens), or it becomes the baseline on which to build yet other ‘emergency’ measures. So let’s say the state of emergency started on 9/11 (I don’t agree, but let’s say it did); can we then now say that with the demise of Osama bin Laden, who apparently was so important that streets are filled with chanting people, the state of emergency has ended? Can we please do away with renditions, indefinite detention, Guantánamo Bay, illegal wiretapping, and so forth?
[We] have more to be grateful for than this one villain’s demise. We must give thanks for something broader: The war on terror is over. I don’t mean that there is no threat of further jihadist attack. In the short term, the threat may even rise. I don’t mean that we should abandon all efforts at tracking terrorist cells. Of course not. But the war on terror was a way of seeing the world, explicitly modeled on World War II and the Cold War. It suggested that the struggle against “radical Islam” or “Islamofascism” or “Islamic terrorism” should be the overarching goal of American foreign policy, the prism through which we see the world.
I remember how seductive that vision was in the aftermath of 9/11. It imposed order on the world and gave purpose to American power. But it was a mistake from the start. Even the Cold War was a dangerously overblown vision, which blinded American policymakers to the fact that much of what happened in, say, Vietnam or Angola, had little to do with Moscow or communism. But the war on terror was worse. It made East Asia an afterthought during a critical period in China’s rise; it allowed all manner of dictators to sell their repression in Washington, just as they had during the Cold War; it facilitated America’s descent into torture; it wildly exaggerated the ideological appeal of a jihadist-Salafist movement whose vision of society most Muslims find revolting.
Even before the U.S. killed bin Laden, the Arab Spring had already rendered him irrelevant. President Obama now has his best chance since taking office to acknowledge some simple, long-overdue truths. Terrorism does not represent the greatest threat to American security; debt does, and our anti-terror efforts are exacerbating the problem. We do not face, as we did in the 1930s, a totalitarian foe with global ideological appeal. We face competitors who, in varying ways, have imported aspects of our democratic capitalist ideology, and are beating us at our own game.
So now what? Legally speaking, there are two broad lessons to derive from the Obama administration’s latest salvo in the war on terror. One is that it shows the need to continue operating outside legal norms indefinitely. The other is that it allows us to declare a symbolic victory over terrorism and return once more to the pre-9/11 regime in which the rule of law is inviolate.
About all we can say with certainty is this: We tortured. We live in a world in which we must contend with information obtained by torture. We now need to decide whether we want to continue to live that way. Writers from ideological backgrounds as diverse as Matt Yglesias and Ross Douthat argue that it is time to return to the paradigm abandoned after 9/11. Let’s put the 9/11 attacks and the existential threat it created behind us. With Bin Laden’s death, let’s simply agree that the objectives of the Bush administration’s massive anti-terror campaign have finally been achieved, and that the time for extra-legal, extra-judicial government programs—from torture, to illegal surveillance, to indefinite detention, to secret trials, to nontrials, to the prison camp at Guantanamo Bay—has now passed. There will be no better marker for the end of this era. There will be no better time to inform the world that our flirtation with a system of shadow-laws was merely situational and that the situation now is over.
But for those who would argue for a continuation of the lawlessness of the post-9/11 legal era, the question is now this: When does it end? If the death of Bin Laden doesn’t signal the end of the 9/11 legal regime, what does? Do we continue to avail ourselves of these illegal methods until every last enemy of America is dead? If torture produced information about the men hiding Bin Laden, does that give America license to torture anyone, anywhere? If the prison camp at Guantanamo is the only reason we were able to obtain intelligence about Bin Laden’s protectors, shouldn’t Guantanamo be expanded and kept open forever? Shouldn’t we start shipping Americans there?
The “war on terror” language was always metaphorical, I realize, but it unloosed a very real Pandora’s box of injustice on a nation that prides itself on its notions of fairness. That makes the highly symbolic death of Bin Laden an apt time—perhaps the last apt time—to ask whether this state of affairs is to be temporary or permanent. If President Obama truly believes, as he said last night, that justice has finally been done, he should use this opportunity to restore the central role of the rule of law in achieving justice in the future.
In the gargantuan media frenzy surrounding an event like this, there’s only so much a tiny blog can add.
First off, I must say I’m against the death panelty and against this kind of ‘rogue justice’. Like the Dutch Minister of Defence said, I’d been better if Bin Laden had been captured and tried in a fair trial. So, I can’t really engage in the kind of gung-ho victoriousness that I’m seeing now in the news and on my Facebook feed. But congratulations, I guess, to all those who lost friends and family on 9/11; and of course Bin Laden had it coming.
Having said that, I wonder what the impact of this event is, and to what extent it changes anything. It might have some impact on Obama’s 2012 re-election chances, but I wouldn’t be surprised if the current glow dissipates pretty soon, and politics goes back to business as usual. Whether the death of Bin Laden has any effect on global terrorism as a phenomenon, other than a symbolic one, I very much doubt.
What I would hope is that now America as a constitutional democracy with the rule of law could return to its pre-9/11 state of being. As Joan Walsh on Salon.com says:
I also wish this achievement could mean we get our country back, the one before the Patriot Act, before FISA, before rendition and torture and Guantanamo; before we began giving up the freedom and belief in due process that makes us Americans, out of our fear of totalitarians like bin Laden. It won’t happen overnight, but I’m going to choose to think this could be a first step.
Because that would be the real victory in the struggle against terrorism: closing Guantánamo Bay!
- Edit: This observation from the NYT, by the way, is also very true. The political uprisings of the Arab Spring had already delegitimized Al Qaeda, and this is a (symbolic) double blow.
Analysts said Bin Laden’s death amounted to a double blow for Al Qaeda, after its sermons of anti-Western violence seemed to be rendered irrelevant by the wave of political upheaval rolling through the Arab world.
“It comes at a time when Al Qaeda’s narrative is already very much in doubt in the Arab world,” said Martin S. Indyk, vice president and director of foreign policy at the Brookings Institution. “Its narrative was that violence was the way to redeem Arab honor and dignity. But Osama bin Laden and his violence didn’t succeed in unseating anybody.
Obama’s remarks, though, were very decent and modest. Read them in full here. I’m very happy that he didn’t talk about “war” too much other than in the contexts of Iraq and Afghanistan (imagine how Bush or a fool like John McCain would’ve been standing there), and this I thought was very good:
As we do, we must also reaffirm that the United States is not –- and never will be -– at war with Islam. I’ve made clear, just as President Bush did shortly after 9/11, that our war is not against Islam. Bin Laden was not a Muslim leader; he was a mass murderer of Muslims. Indeed, al Qaeda has slaughtered scores of Muslims in many countries, including our own. So his demise should be welcomed by all who believe in peace and human dignity.
Despite all the rightful criticism against Obama concerning the rule of law, I think we can be very happy that this guy is the president of the United States.
I also kinda like, as a political thing, that Obama already announced in 2008 that he would re-direct American efforts from full-scale wars in Iraq and Afghanistan to taking out Osama bin Laden - like in this presidential debate with John McCain, who actually protested that notion. And that’s what he did. Of course, the US is still in both countries and in a third one, but still.
Well that’s pretty much it. Check the NYT here, and the 7-page obituary of Bin Laden here. HuffPost here. Andrew Sullivan here (although you may not want to read him if you’re not into dramatic wallowing). Here’s some cool stuff:
Watch out whom you befriend on Facebook! The Pentagon is developing software that will allow them to secretly manipulate social media using fake online personas.
In a pretty pathetic attempt at starting up some sort of spy program on the Internet, a Californian company has been awarded a contract with Central Command (Centcom) to develop a system in which militarymen can manage 10 online personas, which includes fake backgrounds, histories, and occupations. In this way, they can nest in forums, Twitter, Facebook, blogs, and other social media; but also attempt to create some online consensus beneficial to US interests.
I actually don’t believe that in the realm of counterterrorism something like this has never been done before, but ok. We’ll look out for some serviceman in disguise commenting on our blog posts!
The US military is developing software that will let it secretly manipulate social media using fake online personas designed to influence internet conversations and spread pro-American propaganda.
A Californian corporation has been awarded a contract with the US Central Command (Centcom) to develop what is described as an “online persona management service” that will allow one serviceman or woman to control up to 10 separate identities at once.
The contract stipulates each persona must have a convincing background, history and supporting details, and that up to 50 controllers must be able to operate false identities from their workstations “without fear of being discovered by sophisticated adversaries”.
The project has been likened by web experts to China’s attempts to control and restrict free speech on the internet.
Once developed the software could allow US service personnel, working around the clock in one location, to respond to emerging online conversations with a host of co-ordinated blogposts, tweets, retweets, chatroom posts and other interventions. Details of the contract suggest this location would be MacDill air force base near Tampa, Florida, home of US Special Operations Command.
OEV is seen by senior US commanders as a vital counter-terrorism and counter-radicalisation programme. In evidence to the US Senate’s armed services committee last year, General David Petraeus, then commander of Centcom, described the operation as an effort to “counter extremist ideology and propaganda and to ensure that credible voices in the region are heard”. He said the US military’s objective was to be “first with the truth”.
The discovery that the US military is developing false online personalities – known to users of social media as “sock puppets” – could encourage other governments, private companies and non-government organisations to do the same.
Critics are likely to complain that it will allow the US military to create a false consensus in online conversations, crowd out unwelcome opinions and smother commentaries or reports that do not correspond with its own objectives.
I don’t buy the latter at all, but they’re welcome to try as far as I’m concerned…
Alex Knapp at Outside the Beltway captures my feelings exactly when he writes about the depressed feeling he gets from the ‘mainstreaming of brutality’ that is going on in the US. Now I’m not surprised about that stuff coming from Republicans; what upsets me is how Obama – Obama, of all people – has made bipartisan and acceptable that people can be held indefinitely in prisons without a trial; that American citizens can get shot abroad without a trial if they are suspected of terrorism; and that whistleblowers get treated like the worst criminals. It runs against everything that America once stood for. And what was that thing about the audacity of hope again?
I’ve been trying for the past couple weeks to write about Bradley Manning, but I can’t. It makes me sick to my stomach. The whole trend of brutality and betrayal of American ideals over the past decade makes me sick to my stomach.
We have gone from being the first country that established the principle that prisoners of war should be treated respectfully to a country that operates black sites and sends prisoners to other countries to be tortured–when we don’t torture them ourselves.
In the American Revolution, the number one cause of death for American soldiers was maltreatment and disease in British POW camps. In the Civil War, Andersonville was a cause of national outrage. In the early 20th century, the United States emphatically supported the adoption of the Geneva Conventions. In World War II, German soldiers happily surrendered to Americans in the West, knowing they’d be well treated. But in the East, they fought the Russians to the last man because they knew they wouldn’t be.
Now, in the 21st century, we send robot planes to bomb civilians in a country that’s ostensibly an ally. We have prisons where people are routinely denied basic essentials, denied due process, are maltreated and tortured. We reverse decades of tradition and not only have legalized assassination, but have legalized assassination of United States citizens.
And there’s no outrage on Main Street. There’s no outrage in Washington. There’s only outrage on the internet. And half the internet rage is coming not from the acts themselves but rather partisan bullshit surrounding them. (“You only hate torture when Bush does it!” “You only hate it when we do it to white people!” “Nuh-uh!” “Uh-huh!”)
The first time I voted in a Presidential election, in 2000 (for Harry Browne), no part of my consideration of any of the candidates had to do with whether they wished to torture people or assassinate American citizens. It didn’t have to be, because it wouldn’t cross anybody’s mind to have a position on it. Americans don’t torture. That was our position. We were a shining city on a hill. You can’t torture people in the basement if you’re trying to set an example of decency to the world.
In 2004, this became a partial voting issue, as John Kerry oh so politely pointed out that maybe throwing people into a prison might be a little wrong? Maybe? But since at the time Kerry seemed to be supporting whichever way the wind was blowing, it didn’t seem to matter as much. (In the end, I voted for “None of the Above.”)
Then in 2008, one major reason why I voted for Barack Obama was because he forcefully claimed to be opposed to such policies. And I was mad that that was actually a voting issue for me, because you’d think that not torturing people is a moral no-brainer.
But, as it turned out, Obama lied.
Now, as I look to vote in 2012, I realize that just like in 2000, no part of my consideration for any of the candidates will involve their positions on torture, war crimes, secret prisons, renditions, etc.
Because both candidates will be in favor. Without apology.
And so Barack Obama finally commits to the creation of a parallel justice system – one in which the threshold of evidence is lower, people can be preventively detained or have no trial at all (indefinitely), and that is run by military commissions. On Cuba, a satellite piece of land outside the US mainland and its ordinary criminal justice system. Even though as a presidential candidate, the darling of civil libertarians, liberals and Democrats, Obama said to vehemently oppose the Bush-Cheney counterterrorism policies that had resulted in the prison camp at Guantánamo Bay, the military commissions, and indefinite preventive detention for terrorism suspects.
If Obama taught me one thing, it is that you should never, ever trust politicians. That’s the lesson that I guess is to be learnt from this guy’s election and presidency.
But anyway. Indefinite detention is now a fact. Procedurally, some things have of course been improved since Bush-Cheney. Detainees on trial now have legal rights which come closer to those in the ordinary justice system; detainees who will not be tried will, it is promised, within a year receive status reviews of the level of ‘threat’ they impose. Obama’s executive order lifting his two-year ban on military trials requires compliance with the Geneva Conventions and the Convention Against Torture. Also – importantly – this order only covers those currently held, and does not extent to any possible future detainees.
But otherwise, Gitmo will not be closed, 9/11 plotters will not get a criminal trial (which would have shown the world what a law-honoring, justice-minded country the US would be), and the way is open for any future Republican president to expand upon this parallel justice system. Yes we can.
President Obama on Monday reversed his two-year-old order halting new military charges against detainees at Guantánamo Bay, Cuba, permitting military trials to resume with revamped procedures but implicitly admitting the failure of his pledge to close the prison camp.
Mr. Obama said in a statement that he remained committed to closing Guantánamo someday and to charging some terrorism suspects in civilian criminal courts. But Congress has blocked the transfer of prisoners from Guantánamo to the United States for trial, frustrating the administration’s plan to hold civilian trials for Khalid Shaikh Mohammed, the self-professed chief plotter of the Sept. 11 attacks, and others accused of terrorism.
Officials declined to say whether Mr. Mohammed would be scheduled for a military commission or would await a trial in federal court if Congress lifts its prohibition.
Separately, for detainees who will not get trials, Mr. Obama set out new rules in an executive order Monday requiring a review of their status within a year and every three years after that to determine whether they remain a threat, should be scheduled for a military trial or should be released. The order also requires compliance with the Geneva Conventions and the international treaty that bans torture and inhumane treatment.
Civil liberties advocates, who have long been critical of Guantánamo, expressed disappointment that the military system remained in place more than two years after Mr. Obama took office.
“This is a step down the road toward institutionalizing a preventive-detention regime,” said Elisa Massimino, president of Human Rights First. “People in the Mideast are looking to establish new rules for their own societies, and this sends a mixed message at best.”
Glenn Greenwald at Salon.com is, as always, indispensable. He especially debunks the idea, also found in the NYT article above, that it is Congress, not Obama, that drives these policies:
It is true that Congress — with the overwhelming support of both parties — has enacted several measures making it much more difficult, indeed impossible, to transfer Guantanamo detainees into the U.S. But long before that ever happened, Obama made clear that he wanted to continue the twin defining pillars of the Bush detention regime: namely, (1) indefinite, charge-free detention and (2) military commissions (for those lucky enough to be charged with something). Obama never had a plan for “closing Guantanamo” in any meaningful sense; the most he sought to do was to move it a few thousand miles north to Illinois, where its defining injustices would endure.
The preservation of the crux of the Bush detention scheme was advocated by Obama long before Congress’ ban on transferring detainees to the U.S. It was in May, 2009 — a mere five months after his inauguration — that Obama stood up in front of the U.S. Constitution at the National Archives and demanded a new law of “preventive detention” to empower him to imprison people without charges: a plan the New York Times said “would be a departure from the way this country sees itself.” It was the same month that the administration announced it intended to continue to deny many detainees trials, instead preserving the military commissions scheme, albeit with modifications. And the first — and only — Obama plan for “closing Guantanamo” came in December, 2009, and it entailed nothing more than transferring the camp to a supermax prison in Thompson, Illinois, while preserving its key ingredients, prompting the name “Gitmo North.”
None of this was even arguably necessitated by Congressional action. To the contrary, almost all of it took place before Congress did anything. It was Barack Obama’s position — not that of Congress — that detainees could and should be denied trials, that our court system was inadequate and inappropriate to try them, and that he possessed the unilateral, unrestrained power under the “laws of war” to order them imprisoned for years, even indefinitely, without bothering to charge them with a crime and without any review by the judiciary, in some cases without even the right of habeas review(to see why claims of such “law of war” detention power are so baseless, see the points here, especially point 5).
In other words, Obama — for reasons having nothing to do with Congress — worked from the start to preserve the crux of the Bush/Cheney detention regime.
Another victory for executive power, another loss for the Rechtsstaat. According to a US federal judge, there are no legal limits on the President’s power to order the killing of alleged terrorists outside the US, even if these individuals happen to be US citizens. At least, no legal limits that can be enforced in a US courtroom – Judge Bates of the DC District Court ruled that the matter amounts to an unjusticiable “political question”.
WASHINGTON — A federal judge threw out a lawsuit on Tuesday that sought to block the American government from trying to kill Anwar al-Awlaki, a United States citizen and Muslim cleric accused of playing a significant role in Al Qaeda’s branch in Yemen.
The ruling clears the way for the Obama administration to continue to try to kill Mr. Awlaki and represents a victory in its efforts to shield from judicial review one of its most striking counter-terrorism policies.
The court not only rejected the lawsuit on the grounds that Mr. Awlaki’s father had no standing to file it on behalf of his son, but held that decisions to mount targeted killings overseas are a “political question” for executive officials to make — not judges.
In an 83-page opinion, Judge John Bates of the District of Columbia district court acknowledged that the case raised “stark, and perplexing, questions” — including whether the president could “order the assassination of a U.S. citizen without first affording him any form of judicial process whatsoever, based the mere assertion that he is a dangerous member of a terrorist organization.”
But even though the “legal and policy questions posed by this case are controversial and of great public interest,” he wrote, they would have to be resolved on another day or outside of the courts, since this case had to be dismissed at the onset.
The Justice Department had no immediate comment on the ruling. But Jameel Jaffer, a lawyer for the American Civil Liberties Union who helped represent Mr. Awlaki’s father, Nasser al-Awlaki, in the matter, called the decision “a profound mistake” that he said would dangerously expand presidential powers.
“If the court’s ruling is correct, the government has unreviewable authority to carry out the targeted killing of any American, anywhere, whom the president deems to be a threat to the nation,” Mr. Jaffer said. “It would be difficult to conceive of a proposition more inconsistent with the Constitution, or more dangerous to American liberty.”
Judge Bates rejected the notion that his ruling amounting to holding that the executive possesses “unreviewable authority to order the assassination of any American whom he labels an enemy of the state.” His ruling emphasized that it was limited to the circumstances of Mr. Awlaki, whom the intelligence community has said is engaged in specific operational planning of attacks against the United States.
“The court only concludes that it lacks capacity to determine whether a specific individual in hiding overseas, whom the director of national intelligence has stated is an ‘operational member’ ” of Al Qaeda’s Yemen branch, Judge Bates said, “presents such a threat to national security that the United States may authorize the use of lethal force against him.” Robert Chesney, a University of Texas law professor who specializes in national security law, said the limits of the theory articulated by Judge Bates would be a matter of hot dispute.
“The slippery slope is obviously the concern here,” Mr. Chesney said. “Judge Bates is at pains not to decide this question for other circumstances. But the question remains, what else besides this fact pattern would enable the government to have the same result — no judicial involvement in a targeted-killing decision?”
The A.C.L.U., along with the Center for Constitutional Rights, brought the lawsuit on behalf of Mr. Awlaki’s father last summer. It first had to receive permission to represent Nasser al-Awlaki from the Treasury Department, which has labeled Anwar al-Awlaki a “specially designated global terrorist.”
Granted, Judge Bates was in an unenviable position, having to juggle national security concerns and fundamental human rights. No matter how he would have ruled, he was going to be severely criticized. Nevertheless, that doesn’t delegitimize critique on his ruling – here are three points:
First, Judge Bates denied the father of Mr. al-Awlaki standing to bring the claim, arguing that Mr. al-Awlaki’s incommunicado status is of his own choosing – surely he could easily walk up to the US embassy in Yemen to claim his constitutional rights. It is rather unfortunate that the judge relies on this legal fiction: who really believes that the US government would quietly sit down with one of the most sought-after individuals on its hit list, rather than fire a – Presidentially authorized –missile at him as soon as he discloses his location?
Second, the political question doctrine is a well-known and legitimate tool that prevents judges from having to meddle in political issues, such as foreign affairs and national security. Yet in this case national security concerns directly challenge one of the most fundamental human rights, namely the right not to be killed without due process (presuming that capital punishment is okay in the first place, which it is not). It’s the very raison-d’être of the judiciary to offer a counter-balance against the executive in these situations – Judge Bates effectively undermines the carefully constructed checks and balances of the American constitutional system.
Third, the slippery slope is very real. Judge Bates understandably tries to do away with this case on the basis of exceptional circumstances, arguing that this case of a “specially designated global terrorist” is one-of-a-kind. Yet a similar logic applied to the 775 “unlawful combatants” at Guantánamo Bay, the approximately 3000 extraordinarily renditioned individuals, and the War on Terror as a whole. Repeated exceptions for hard cases dilute the rule of law. As the ACLU stated, this expansion of executive power could prove more dangerous to American liberty than a former imam in Yemen.
P.S.: It would be interesting if this case goes up to the Supreme Court, though I’m not optimistic about the outcome of such a ruling.
WikiLeaks is a gift that keeps on giving. Just by accident – I was looking for a document that revealed that the Netherlands, together with Germany and Italy, proposed to remove American nuclear weapons from its soil – I stumbled on this report of a meeting between John Bellinger (above), legal advisor of then-State Secretary Condoleezza Rice, and a couple of important European counterterrorism figures, back in 2006. These include John Cooper, Director-General for Common Foreign and Security Policy at the EU Council Secretariat, and Gijs de Vries, EU Coordinator for the Fight against Terrorism.
The report reveals nothing new, but it does provide a great summary of the legal (or quasi-legal) architecture of the Bush-Cheney War on Terror. On the meeting, Bellinger tries to explain this legal architecture – why suspected terrorists can be held indefinitely at Guantánamo, how extraordinary renditions can be justified, why the Geneva Conventions don’t apply – and tries to convince his European counterparts of their appropriateness. I was very relieved when reading the reactions of the Europeans at the table: very critical, and not very convinced at all.
So if you’re interested in how the Bush administration, rather candidly I must say, defended its treatment of terrorism suspects abroad, and how well it fared in this case in Europe, read on.
Secstate Legal Adviser John Bellinger met with a comprehensive array of EU interlocutors in Brussels on February 7-8 to discuss U.S. views on the legal framework for the war on terrorism. He stressed that U.S. decisions on how to deal with an unprecedented global terrorist threat had been made after serious consideration of all legal and political options, and that European officials must publicly underline U.S. EU solidarity in the fight against terror. On Guantanamo detainees and Al Qaeda, Bellinger argued that the U.S. was and is acting in the context of a new form of international armed conflict, and that therefore, while the Geneva Conventions do not fit this new situation well, the rules of war provide a more appropriate framework than domestic criminal law. He discussed European concerns about the treatment of detainees. Bellinger also argued that rendition is a vital tool against terror. Finally, he urged the EU not to support a Cuban resolution at the UN Human Rights Commission on Guantanamo. The EU response to the visit was for the most part extremely positive, with the Legal Adviser of the Austrian EU presidency underlining that ”the fight against terror is our (shared) struggle.” Europeans, however, remain concerned about protection issues.
Note how the Bush-Cheney administration reasoned in terms of a “new paradigm”: the idea that the War on Terror is not a metaphorical construct, but an actual war, an international armed conflict, to which the rules of war apply. Yet, the rules of war according to Bush-Cheney only apply selectively, to the extent that the U.S. President deems fit. The Geneva Conventions and the Torture Convention, after all, to them do not apply to terror suspects.
Here we see more of this:
Bellinger stressed that the situation in which the U.S. and its allies find themselves is unprecedented –faced with thousands of Al Qaeda and associated terrorists around the globe whose goal is to inflict mass casualties on innocent civilians by any means possible. The legal frameworks that are readily available, the Geneva Conventions or domestic criminal law, do not fit this unprecedented situation well.
The U.S. believes that the continuing struggle against Al Qaeda remains a legal state of international armed conflict.
Al Qaeda is not the same as domestic European terrorist groups like the IRA or RAF because it is global and operates outside the U.S. and across borders. It is in effect a new manifestation on the battlefield, that of “armies of terrorists.” Conceptually, this is a military conflict, not a police action to round up criminals.
Yet even though this is apparently an international armed conflict, the Geneva Conventions to the U.S. do not apply. Al Qaeda is not a ‘High Contracting Party’ to the Conventions, they are not soldiers wearing uniforms, and neither are they ‘protected persons’ (civilians caught up in a conflict). So what are they then?
If not covered as POWs or protected persons, what, then, is the status of Al Qaeda and Taliban combatants? (…) [They] are best defined as unlawful combatants who do not have a right to any protections under the Geneva Conventions.
And this, then, is a new category of people that can be held indefinitely, have no right to a hearing in court, and can be tortured and extradited at will. Of course the Bush-Cheney administration and Mr. Bellinger ignored completely that large parts of the Geneva Conventions, and the Torture Convention, are simply common law – they apply regardless of the state of conflict or the participants in it. Each person in the world is free from being detained indefinitely without recourse to a legal court, and free from torture.
Yet the Americans apply international law only selectively, to the extent to which “military necessity” allows it. And what military necessity is, is of course to the unreviewable discretion of the U.S. President. This is the war paradigm reasoning again.
Accordingly, to clarify U.S. policy towards detainees President Bush issued a public directive on February 7, 2002, titled “Humane Treatment of Al Qaeda and Taliban Detainees.” This directive orders that all detainees under the control of the Armed Forces be treated humanely and, to the extent appropriate and consistent with military necessity, consistent with the Geneva Conventions. In addition, the U.S. remains bound by, and committed to, the United Nations Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment. This includes Article 4, which prohibits torture, and Article 3, which prohibits transfers of persons to countries where there is substantial likelihood that they will be tortured. Article 3 is applied on a case-by-case basis.
Bellinger however does address the obvious question: if detainees can be held for the duration of the “war”, and if the War on Terror is only over when America declares it over (which willl, probably, never occur), does that mean that people can be held forever? Why, yes, they can:
Can detainees be held indefinitely? What if some are innocent? The U.S. recognizes that these are troubling questions, but does not believe such questions could justify a decision not to detain people who represent a danger to American citizens. To deal with this problem at Guantanamo, the U.S. has created an annual Administrative Review Board process to determine, for each individual detainee, whether that detainee should still be considered as in a state of war with the U.S.
The question has also been raised as to the possible innocence of Guantanamo detainees. As the Geneva Conventions dictate, if there is any doubt about whether or not an individual is a POW, there must be an Article 5 tribunal. Since Taliban and Al Qaeda fighters clearly did not meet the conditions necessary to be granted POW status, the President decided that Article 5 tribunals were not necessary.
So, in a twisted rendering of the language of international law, individuals can be determined to be “in a state of war” with the U.S., whereas status determination tribunals for terror suspects need not be established, as there is no doubt as to their status: they are terrorists.
Bellinger than goes on to the address the European concern that people have been snatched from the street by the CIA, and transported to Guantánamo, or secret “black sites” that we don’t even know about. Although it has by now been confirmed that people (and sometimes innocent people) have been abducted by the CIA, back in 2006 it could still be denied. He also chooses not to go into CIA flights:
Bellinger sought to dispel allegations that hundreds of people had been kidnapped from European streets. He pointed out that there is no evidence for such allegations, and that the United States respects the sovereignty of European governments. On renditions, CIA flights, and other intelligence operations, the U.S. will not confirm or deny specific allegations, in order not to compromise the confidentiality of intelligence operations as such.
After that, Bellinger tries to bully the Europeans into not supporting a motion by Cuba against American actions at Guantánamo in the U.N. Human Rights Commission:
Some EU interlocutors expressed concern that some EU member states would support a Cuban resolution against U.S. actions in Guantanamo at the upcoming UN Human Rights Commission, that might be modeled after a European Parliament resolution on the subject. Bellinger warned that European support for a Guanatanamo resolution would be a serious setback to U.S.-EU cooperation against terrorism, and give the unacceptable impression that the EU was aligned with Cuba against the U.S.
Soo… Having come at the end of his expose, how did the Europeans at the table react?
Although Bellinger tries to cover it up in diplomatic language, and calls the paragraph “European Reactions Positive for U.S.”, I’d say it’s pretty clear that they were critical and not convinced. Which, by the way, creates the question why Bellinger would report that European reactions were positive. Maybe to make himself look good back home?
By and large, Bellinger’s European interlocutors responded very positively to his visit. Their questions were many and varied, and all of the meetings were marked by vigorous but constructive discussion. It is clear that many Europeans continue to believe that Article 3 of the Geneva Conventions can be applied to enemy combatants, and still afford the United States the flexibility it seeks. It is also apparent that lingering concerns (fed by negative public perceptions) remain about the treatment of detainees, and protection against wrongful detentions. Some governments remain focused on renditions, and the possibility that there will be negative revelations that impact on them directly.
That said, the visit was very helpful in beginning to dispel European misunderstandings and misgivings about our pursuit of the war on terror. Continued engagement on these issues is critical in the coming months to persuade EU governments to stand more firmly and publicly in the face of their public’s concerns and suspicion regarding Guantanamo, renditions, and the legality of U.S. actions against Al Qaeda. The Austrian Chair of the COJUR meeting, Ferdinand Trauttmansdorf, concluded the meeting with the following message: “We leave this discussion with the notion that America is carefully considering these difficult questions in good faith.” He said also that the fight against terror was a burden shared by the EU, and that the U.S. has as much of a right to ask questions of the EU, as the EU does of the U.S. On the upcoming Human Rights Commission, urgent consultations with the EU will be necessary to avert the possibility of EU support for a Cuban Guantanamo resolution.
Note the quasi-objective and kinda manipulative tone that seems to be common to confidential diplomatic memos (we saw it earlier in the secret CIA document on the manipulation of European public opinion on the war in Afghanistan). Lingering concerns are “fed by negative public perceptions”. The meeting was helpful in beginning to “dispel” European “misunderstandings” and “misgivings” about the war on terror. “Continued engagement” by the U.S. is necessary to push European governments in line vis-a-vis their publics critical of Guantánamo Bay and illegal CIA flights.
Finally, I found it very interesting that the U.S. administration was so worried that the EU would support a Cuban resolution in the U.N. on Guantánamo Bay. Does anyone know how that played out?
In conclusion, what do we learn from scrutiny of this document? Well, as I said, nothing really new. It only confirms again the extent to which the Bush-Cheney administration reasoned from a “war paradigm”: the idea that the fight against Al Qaeda is a new kind of actual international armed conflict, to which the rules of war however only apply limitedly. This reasoning allows them to treat terror suspects in utter disregard of international law. Moreover, since an end to the ”War” on Terror is not in sight, since it is not limited to boundaries, and since it is ultimately to the President’s unreviewable discretion whether military necessity exists, this makes the U.S. kind of a universal imperial policeman, with nothing that can be put in its way. Is that clear-cut authoritarianism? I’d say it is. Happily, at least also behind the scenes, some people stood up.
It’s on: despite a cyberattack on their website just hours ago, WikiLeaks has published more than 250,000 classified diplomatic cables from American embassies around the globe. In major newspapers, there’s now talk about a worldwide diplomatic crisis.
What’s in it is, well, huge and encompassing, with lots and lots of information on countless international matters.
The United States was catapulted into a worldwide diplomatic crisis today, with the leaking to the Guardian and other international media of more than 250,000 classified cables from its embassies, many sent as recently as February this year.
At the start of a series of daily extracts from the US embassy cables – many of which are designated “secret” – the Guardian can disclose that Arab leaders are privately urging an air strike on Iran and that US officials have been instructed to spy on the UN’s leadership.
These two revelations alone would be likely to reverberate around the world. But the secret dispatches which were obtained by WikiLeaks, the whistlebowers’ website, also reveal Washington’s evaluation of many other highly sensitive international issues.
These include a major shift in relations between China and North Korea, Pakistan’s growing instability and details of clandestine US efforts to combat al-Qaida in Yemen.
Among scores of other disclosures that are likely to cause uproar, the cables detail:
• Grave fears in Washington and London over the security of Pakistan’s nuclear weapons programme
• Alleged links between the Russian government and organised crime.
• Devastating criticism of the UK’s military operations in Afghanistan.
• Claims of inappropriate behaviour by a member of the British royal family.
The US has particularly intimate dealings with Britain, and some of the dispatches from the London embassy in Grosvenor Square will make uncomfortable reading in Whitehall and Westminster. They range from serious political criticisms of David Cameron to requests for specific intelligence about individual MPs.
The cache of cables contains specific allegations of corruption and against foreign leaders, as well as harsh criticism by US embassy staff of their host governments, from tiny islands in the Caribbean to China and Russia.
The material includes a reference to Vladimir Putin as an “alpha-dog”, Hamid Karzai as being “driven by paranoia” and Angela Merkel allegedly “avoids risk and is rarely creative”. There is also a comparison between Mahmoud Ahmadinejad and Adolf Hitler.
The cables name countries involved in financing terror groups, and describe a near “environmental disaster” last year over a rogue shipment of enriched uranium. They disclose technical details of secret US-Russian nuclear missile negotiations in Geneva, and include a profile of Libyan leader Muammar Gaddafi, who they say is accompanied everywhere by a “voluptuous blonde” Ukrainian nurse.
The electronic archive of embassy dispatches from around the world was allegedly downloaded by a US soldier earlier this year and passed to WikiLeaks. Assange made them available to the Guardian and four other newspapers: the New York Times, Der Spiegel in Germany, Le Monde in France and El País in Spain. All five plan to publish extracts from the most significant cables, but have decided neither to “dump” the entire dataset into the public domain, nor to publish names that would endanger innocent individuals. WikiLeaks says that, contrary to the state department’s fears, it also initially intends to post only limited cable extracts, and to redact identities.
The cables published today reveal how the US uses its embassies as part of a global espionage network, with diplomats tasked to obtain not just information from the people they meet, but personal details, such as frequent flyer numbers, credit card details and even DNA material.
Classified “human intelligence directives” issued in the name of Hillary Clinton or her predecessor, Condoleeza Rice, instruct officials to gather information on military installations, weapons markings, vehicle details of political leaders as well as iris scans, fingerprints and DNA.
The most controversial target was the leadership of the United Nations. That directive requested the specification of telecoms and IT systems used by top UN officials and their staff and details of “private VIP networks used for official communication, to include upgrades, security measures, passwords, personal encryption keys”.
They are classified at various levels up to “SECRET NOFORN” [no foreigners]. More than 11,000 are marked secret, while around 9,000 of the cables are marked noforn. The embassies which sent most cables were Ankara, Baghdad, Amman, Kuwait and Tokyo.
But a single American al Qaeda terrorist in a foreign country actively waging war against us seems to me to be a pretty isolated example. And Obama always said he would fight a war against al Qaeda more ruthlessly than Bush. As he has. I agree that invoking state secrets so comprehensively as to prevent any scrutiny of this is a step way too far. But I do believe we are at war; and that killing those who wish to kill us before they can do so is not the equivalent of “assassination”. My concern has always been with the power to detain without due process and torture, not the regrettable necessity of killing the enemy in a hot and dangerous war.
This refers to the case of Anwar Aulaqi, a Yemeni-American terrorist suspect who is an official killing target for the U.S. government. By all accounts, he is a prominent member of Al Qaeda, suspected of involvement in the Fort Hood shooting and the Detroit underpants assault. So I don’t really care about him. But he’s also formally still a suspect, and an American citizen at that. Obama, in targeting this guy for assassination, has in terms of ignoring the rule of law pretty much gone beyond whatever Bush and Cheney did. That, I think, makes Obama an incredibly disappointing and untrustworthy politician.
My response to Sullivan:
I’m absolutely dumbfounded with your comment in this post:
And that’s coming from you?
First of, this guy holds an American passport. That makes him a U.S. citizen, with every right and protection that is attached to that. Secondly, you should know that “isolated examples” don’t remain isolated examples. These sort of “exceptions” have a tendency to spread and become normality after a while, just like happened with the Bush counterterrorism measures (and with the torture regime, spreading to Iraq, and with the Patriot Act, and so forth). Thirdly, since when are the life and rights of one individual somehow less worth than those of other individuals?
I know that this guy is probably a terrorist and what not. But this is a matter of principle, and an extremely important one at that. If you don’t care about the unchecked, unbounded killing by a government of one of its own citizens, merely because he is declared a terrorist, nobody can take your stance on “due process” and torture seriously either.
Had to vent that.
For more about this, read Glenn Greenwald (who, I see just now, also passionately attacks Andrew Sullivan on this).
The New York Times has a sweeping and revealing article about the “shadow war on terrorism” the United States, under the leadership of Barack Obama, are waging. While everyone knows that drone raids are a frequent occurrence in Pakistan, and that missile attacks have been undertaken in Yemen, the sheer size of the global operations of the U.S. conducted by the Pentagon and the CIA against Al Qaeda is news. It ranges from the employment of unmanned drones and missiles to spy and commando teams, as well as the contracting of private soldiers; and the playing field is not only Afghanistan, Pakistan and Yemen, but also Kenya, North Africa and central Asia. What is interesting is that this is a counterterrorism policy that is explicitly owned by Obama; although the Bush administration of course also conducted operations like these, they have grown in scope and intensity in the past one and a half years.
Analytically, I think the article makes an interesting point by pitching Obama’s shadow war against the Bush administration’s invasion and occupation of entire countries. The rationale behind the Afghanistan war, of course, was the idea that the U.S. needs to have military control over a geographical area in order to prevent terrorists from attacking American soil; an idea that then almost necessarily leads to the nation building concept, and has gotten the West into a protracted, absurdly expensive war to which no end is in sight, and which has done much to discredit its image in the Muslim world. The disadvantages of the neoconservative view on counterterrorism should after nine years be pretty obvious.
On the other hand, a massive clandestine “shadow war” has its own negativities as well. The most important one is that it makes civilian casualties, just like invading countries does. In Yemen, for example, a December 2009 attack against an Al Qaeda camp with a cruise missile loaded with cluster bombs is said to have killed more than 50 civilians. Aside from the obvious and inexcusable human tragedy such “covert actions” incur, one should easily be able to grasp how this affects Middle Eastern’s populations’ viewpoints of America, and the West. Secondly, the problem is you sometimes have to rely on local leaders whose bona fides can be questioned as well. Thirdly, a shadow war like this is essentially shadowy: this means, first, that the boundaries of international law between soldiers, spies and civilians become blurred (with consequences for the applicability of, for example, the Geneva Conventions) and secondly, that Congressional and judicial oversight on covert operations and military attacks is weakened, opening up the prospective of an uncontrolled Executive and military operating throughout the world. In the case of Anwar Aulaqi, a Yemeni Al Qaeda leader who also has the American nationality, the grave yet hardly-reported-on situation presents itself that the President here orders the execution through military means of an American citizen… Finally, the risks of contracting private fighters, like a weaking of accountability and control, are clear.
What I also thought interesting was the transformation of the CIA from an intelligence agency into what is almost a paramilitary organization. But read the article, it’s probably the most comprehensive overview of the “war on terror” as conducted today that is now available.
In roughly a dozen countries— from the deserts of North Africa, to the mountains of Pakistan, to former Soviet republics crippled by ethnic and religious strife — the United States has significantly increased military and intelligence operations, pursuing the enemy using robotic drones and commando teams, paying contractors to spy and training local operatives to chase terrorists.
The White House has intensified the Central Intelligence Agency’s drone missile campaign in Pakistan, approved raids against Qaeda operatives in Somalia and launched clandestine operations from Kenya. The administration has worked with European allies to dismantle terrorist groups in North Africa, efforts that include a recent French strike in Algeria. And the Pentagon tapped a network of private contractors to gather intelligence about things like militant hide-outs in Pakistan and the location of an American soldier currently in Taliban hands.
While the stealth war began in the Bush administration, it has expanded under President Obama, who rose to prominence in part for his early opposition to the invasion of Iraq. Virtually none of the newly aggressive steps undertaken by the United States government have been publicly acknowledged. In contrast with the troop buildup in Afghanistan, which came after months of robust debate, for example, the American military campaign in Yemen began without notice in December and has never been officially confirmed.
Obama administration officials point to the benefits of bringing the fight against Al Qaeda and other militants into the shadows. Afghanistan and Iraq, they said, have sobered American politicians and voters about the staggering costs of big wars that topple governments, require years of occupation and can be a catalyst for further radicalization throughout the Muslim world.
Yet such wars come with many risks: the potential for botched operations that fuel anti-American rage; a blurring of the lines between soldiers and spies that could put troops at risk of being denied Geneva Convention protections; a weakening of the Congressional oversight system put in place to prevent abuses by America’s secret operatives; and a reliance on authoritarian foreign leaders and surrogates with sometimes murky loyalties.
The administration’s demands have accelerated a transformation of the C.I.A. into a paramilitary organization as much as a spying agency, which some critics worry could lower the threshold for future quasi-military operations. In Pakistan’s mountains, the agency had broadened its drone campaign beyond selective strikes against Qaeda leaders and now regularly obliterates suspected enemy compounds and logistics convoys, just as the military would grind down an enemy force.
For its part, the Pentagon is becoming more like the C.I.A. Across the Middle East and elsewhere, Special Operations troops under secret “Execute Orders” have conducted spying missions that were once the preserve of civilian intelligence agencies. With code names like Eager Pawn and Indigo Spade, such programs typically operate with even less transparency and Congressional oversight than traditional covert actions by the C.I.A.
And, as American counterterrorism operations spread beyond war zones into territory hostile to the military, private contractors have taken on a prominent role, raising concerns that the United States has outsourced some of its most important missions to a sometimes unaccountable private army.