Outsourcing America’s Bad Human Rights Reputation

Given all the attention to the Administration’s decision, thus far, to neither Mirandize nor charge Dzhokhar Tsarnaev, I wanted to point back to two things that happened last week.

First, in a hearing before the House Appropriations Committee, in response to Congressman Frank Wolf’s frustrated declaration (for a variety of totally justified — such as Holder’s delay in implementing a prison rape preventing program — and totally bogus reasons) that he was just going to ignore Eric Holder, Holder made a case that his DOJ is doing a great job. Josh Gerstein describes his little speech:

I’m proud of what we’ve done across the board at the Justice Department in the last four and a half years. I’m proud of what I’ve done as attorney general. The department that we have now is fundamentally different than the department I found when I got there. We don’t hire people on the bsis of political orientation. We don’t do things as was done in the previous administration. We don’t write memos that say that torture is appropriate when dealing with interrogation techniques. [my emphasis]

No. As far as we know, at least (given the secrecy of the Administration), they have not written memos saying torture is appropriate when dealing with interrogation. They have, however, written memos stretching the concept of public exception beyond its intended function. They have also written memos reinterpreting due process before execution to mean “what John Brennan says in secret.”

In other words, Eric Holder’s DOJ has written memos authorizing practices that are alternatives, but arguably not much better, than the policies his predecessors rubber stamped.

Meanwhile Micah Zenko has a great post summarizing how many of the counterterrorism acts presumably conducted in cooperation with US forces — if not by US forces yet blamed on local ones — fall under the State Department’s definition of human rights violations.

Today—eighty-nine days past its legal deadline—the State Department released its annual Country Reports on Human Rights Practices for 2011. The new, user-friendly interface allows you to find and read individual country chapters much more quickly and easily (and might explain the delay). For all its flaws, the report remains a must-read for its reporting and candor. It serves as a generally honest counter to the rosier assessments of U.S. partners and allies’ human rights practices.

From my vantage point of trying to understand the Obama administration’s policies and practices of target killings, the report is also notable for what it does not include; namely, any mention of U.S. involvement in or responsibility for such operations.

The chapter on Yemen, for instance, has an entire section dedicated to “killings:”

The government also employed air strikes against AQAP and affiliated insurgents in Abyan, with some strikes hitting civilian areas. Although some accused the government of intentionally striking civilians in Abyan, most if not all noncombatant casualties from these bombardments were attributed to a lack of air force training and technical capability.

First, because U.S. targeted killings in Yemen are “covert,” the State Department cannot acknowledge American complicity or collusion. But it stands to reason that some, if not a majority, of these air strikes were carried out by CIA or Joint Special Operations Command (JSOC) drones, or even U.S. Navy assets offshore.

Zenko goes on to point to passages criticizing human rights abuses in Turkey, Somalia, and Pakistan that likely have US involvement.

It’s bad enough that the Attorney General’s measurement of his Department’s performence is measured against John Yoo’s standards, not the law, but we’re probably helping other countries violate State’s own standards for human rights.

All the while dodging the real shame that ought to come from such abuses.

 

CAIR-MI Alleges the FBI Engaged in a Cover-Up in Imam Abdullah Luqman’s Death

Back in February, I suggested that the killing of Imam Abdullah Luqman by members of FBI’s Hostage Rescue Team is what a targeted killing in the US would look like. I was not asserting it was a targeted killing, just that a targeted killing would be a raid with a seemingly unplanned death, and we would likely never know if it were a targeted killing.

At the time, I described how the FBI had basically blown off Luqman’s survivors’ wrongful death suit, which was supported by CAIR-MI.

Today, CAIR-MI and the survivors have filed an amended complaint.

The complaint gets around the FBI’s previous strategy of refusing to name the four FBI Agents most directly responsible for killing Luqman by also naming the former SAC for Detroit, Andrew Arena, who said on a video that “I made the final decision to use that dog [sicced on Luqman]. That was the last decision I made” and the FBI’s local SWAT team member.

And it gets around the expiration of statute of limitations by accusing the FBI of fraudulently concealing the cause of action. In addition to putting out a false story claiming Luqman was armed, the complaint alleges, Arena made sure the killers and the weapon allegedly used by Luqman were removed from the scene before local law enforcement arrived. In addition, all video surveillance was removed from the site, and Abdullah’s body was moved.

62. Upon information and belief, during the time that the FBI had complete control of the interior warehouse crime scene, Defendant Arena arranged for the evacuation of the Unidentified FBI Agents and their transport to FBI Headquarters.

63. Accordingly, the Unidentified FBI Agents were unavailable to provide witness statements to local police crime scene investigators.

64. Upon information and belief, during the time that the FBI had complete control of the interior warehouse crime scene, and pursuant to instructions by Defendant Arena, an alleged semi‐automatic handgun was allegedly removed from the crime scene and taken to FBI Headquarters.

65. Accordingly, the alleged semi‐automatic handgun was unavailable for forensic analysis by local crime scene investigators.

66. Upon information and belief, during the time that the FBI had complete control of the interior warehouse crime scene, and pursuant to instructions by Defendant Arena, FBI Agents removed all hard drives and video surveillance equipment from the warehouse before local crime scene investigators were allowed to gain access to the hard drives or view the video footage.

67. Upon information and belief, during the time that the FBI had complete control of the interior warehouse crime scene, and pursuant to instructions by Defendant Arena, the body of Abdullah was already moved to a different location inside the warehouse before local crime scene investigators and the medical examiner were allowed to gain access to the crime scene.

As a result, it was not until one of Luqman’s alleged accomplices, Muhammad Abdul Salaam, was released from prison until Luqman’s estate learned what really happened at the site.

Here’s where things get interesting. Read more

Is the Government Going to Claim Bradley Manning “Harmed” the US by Exposing Drone Details?

Screen shot 2013-04-17 at 9.46.44 PMLast week’s Bradley Manning hearing significantly focused on how much the government could hide about its witnesses. A big part of the discussion pertained to how a Seal Team 6 member would testify to finding WikiLeaks material at Osama bin Laden’s compound. But the government also advanced its case to have a list of other government employees testify, at least partly, in secret, mostly in the “harm” phase of sentencing.

Here’s Alexa O’Brien’s transcription of that list (click through for the list). There are a number of interesting names on this list. But the one that popped out at me is Ambassador Stephen Seche.

You see, while Seche was Chargé d’Affaires in Syria mid-decade and more recently was in charge of Near Eastern affairs at State, he will almost certainly testify about how WikiLeaks disclosures of cables he wrote while Ambassador to Yemen “harmed” relations with that country.

Indeed, as the image above shows, Seche wrote one of the most newsworthy cables ever released by WikiLeaks, the January 4, 2010 cable recounting a January 2 meeting between then CentCom head David Petraeus and Yemeni President Ali Abdullah Saleh.

The cable is best known for this statement, laying out the agreement by which Saleh would lie about missile and drone strikes and pretend they were Yemen’s.

“We’ll continue saying the bombs are ours, not yours,” Saleh said, prompting Deputy Prime Minister Alimi to joke that he had just “lied” by telling Parliament that the bombs in Arhab, Abyan, and Shebwa were American-made but deployed by the ROYG.

But there are several other inflammatory details in this cable. There’s the nugget of our agreement to shift from using cruise missiles to drones.

Saleh did not have any objection, however, to General Petraeus’ proposal to move away from the use of cruise missiles and instead have U.S. fixed-wing bombers circle outside Yemeni territory, “out of sight,” and engage AQAP targets when actionable intelligence became available.

Potentially more damning still, there’s the passage that suggests Anwar al-Awlaki was an intended target of the December 24, 2009 attack (a day before the US believed he was an operational and at least a month before it had evidence he was). In addition, there’s Petraeus’ absolutely incorrect contention that only three civilians had died at al-Majala instead of the Bedouin clan we know died.

(S/NF) Saleh praised the December 17 and 24 strikes against AQAP but said that “mistakes were made” in the killing of civilians in Abyan. The General responded that the only civilians killed were the wife and two children of an AQAP operative at the site, prompting Saleh to plunge into a lengthy and confusing aside with Deputy Prime Minister Alimi and Minister of Defense Ali regarding the number of terrorists versus civilians killed in the strike. (Comment: Saleh’s conversation on the civilian casualties suggests he has not been well briefed by his advisors on the strike in Abyan, a site that the ROYG has been unable to access to determine with any certainty the level of collateral damage. End Comment.) AQAP leader Nassr al-Wahishi and extremist cleric Anwar al-Awlaki may still be alive, Saleh said, but the December strikes had already caused al-Qaeda operatives to turn themselves in to authorities and residents in affected areas to deny refuge to al-Qaeda. [my emphasis]

At the very least, this passage demonstrates how shoddy our intelligence was both before and after we killed a bunch of civilians. But it may also support the case that the first time we tried to kill Awlaki, we didn’t believe he met the standards laid out in the memo that would ultimately authorize his killing: being a senior operational leader of AQAP involved in planning attacks against the US.

In other words, this cable, by itself, may include evidence of possible war and domestic crimes.

And yet the government wants to send Seche to a classified hearing to talk about the “harm” Bradley Manning caused.

While I think it possible that release of this particular cable made it harder for Djibouti to partner with us (recall we moved the drones targeting Awlaki to Saudi Arabia in 2011), the government at least maintains that Yemen continues to allow us to shoot drones in the country.

Yet it seems highly likely the government wants to claim disclosures of crimes like this amounted to “harm” of the US.

But here’s the punchline.

Read more

House Judiciary Makes (Partial) Progress on Drones, But Not the Senate

Just as the House Judiciary Committee was about to vote to subpoena OLC’s targeted killing memos, DOJ finally agreed to share them with the committee tasked with overseeing OLC.

Just before the hearing, however, DOJ agreed to provide the documents. Goodlatte, the chairman, announced he would postpone the meeting to authorize the subpoena and cancel it once arrangements are made for viewing the documents.

“It’s unfortunate that it took a subpoena notice for the Department to cooperate with the House Judiciary Committee,” Goodlatte said. “The House Judiciary Committee is charged with oversight over the Justice Department and U.S. Constitution and it is imperative that we explore the issues raised by the Administration’s policy.”

Though, from the context, it sounds like DOJ agreed to hand over only the memos authorizing Anwar al-Awlaki’s killing. I’m checking on this, but if this is the case, it’s the partial cave I’ve been expecting from DOJ for some time.

The Administration really doesn’t want to share its signature strike memos.

But that’s just memos. The Administration still refuses — as it did earlier when the House Judiciary Committee held a hearing on drone killing — to send a live body to talk about its killing program.

“We do not currently plan to send a witness to this hearing and have remained in close contact with the committee about how we can best provide them the information they require,” Caitlin Hayden, a National Security Council spokeswoman, wrote in an email to McClatchy.

She added that the White House would continue working with lawmakers “to ensure not only that our targeting, detention and prosecution of terrorists remains consistent with our laws and system of checks and balances, but that our efforts are even more transparent to the American people and the world.”

Hayden declined to say why the administration doesn’t plan to provide a witness for the hearing.

Add this to John Brennan’s refusal to answer Jan Schakowsky’s questions about drones last week, and the Administration really just refuses any oversight on this issue.

But really, they promise they’re being transparent.

Update: I was correct. House Judiciary Committee will only get what the Senate Judiciary Committee got, which is understood to be the Awlaki memos.

After Over 23 Requests, Congress Draws Closer to Issuing Subpoenas

As I’ve been tracking, members of Congress have made over 23 requests for the OLC memos authorizing drone and/or targeted killing. Thus far, only the Intelligence Committees and the Senate — but not the House — Judiciary Committees have been able to see the memos, and they’ve not seen much more than the memo authorizing Anwar al-Awlaki’s killing.

Tomorrow, the House Judiciary Committee may finally get around to demanding the memos — not just the Awlaki memos, but also any memos authorizing signature strikes.

On Monday, Chairman Bob Goodlatte (R-Va.) announced the meeting to authorize the subpoena after the administration failed to meet a deadline he and the panel’s ranking member John Conyers (D-Mich.) issued last week asking for a plan to share the confidential documents.
[snip]

“There is no good reason that the committee’s bipartisan request should go unanswered. The administration’s policy raises serious questions about the role of due process during wartime when the enemy may be a U.S. citizen and the committee must explore these issues and ensure Americans’ constitutional rights are protected at all times,” he added

I’m actually somewhat surprised by this. I had thought the Administration would make a deal to show HJC only the Awlaki memos, as a way to continue to hide the signature strike memos (and Goodlatte’s language suggests that’s what he is primarily interested in; the Democrats are the ones demanding the signature strike memos).

But then, the Administration has pretty consistently surprised me with its stubbornness on these memos.

Just as a reminder, on Friday National Security Council spokesperson Caitlin Hayden claimed the Administration had,

A commitment to congressional oversight. We regularly provide the appropriate members of Congress and the committees who have oversight of our counterterrorism programs with briefings about our drone operations. We have also provided certain Members unprecedented access to highly classified and deliberative legal opinions explaining the legal rationale for certain strikes, including drone strikes that might target U.S. persons.

It’s hard to draw any conclusion except that the Administration believes that oversight of constitutional issues — such as HJC (and SJC) exercise — has nothing to do with oversight of counterterrorism issues.

The White House Decides Maybe They’re Not “Targeted Killings” After All

In the 15 paragraphs that make up the core of John Brennan’s so-called transparency on drone killings, he used the word “target” in one or another form 24 times.

… the United States Government conducts targeted strikes against specific al-Qaida terrorists … the debate over strikes targeted at individual members of al-Qaida has centered on their legality, their ethics, the wisdom of using them, and the standards by which they are approved. … First, these targeted strikes are legal. … Second, targeted strikes are ethical.  Without question, the ability to target a specific individual, from hundreds or thousands of miles away, raises profound questions. …

Targeted strikes conform to the principle of necessity, the requirement that the target have definite military value.  In this armed conflict, individuals who are part of al-Qaida or its associated forces are legitimate military targets.  We have the authority to target them with lethal force just as we target enemy leaders in past conflicts, such as Germans and Japanese commanders during World War II.

Targeted strikes conform to the principles of distinction, the idea that only military objectives may be intentionally targeted and that civilians are protected from being intentionally targeted.  With the unprecedented ability of remotely piloted aircraft to precisely target a military objective while minimizing collateral damage, one could argue that never before has there been a weapon that allows us to distinguish more effectively between an al-Qaida terrorist and innocent civilians.

Targeted strikes conform to the principle of proportionality, … By targeting an individual terrorist or small numbers of terrorists with ordnance that can be adapted to avoid harming others in the immediate vicinity, … targeted strikes conform to the principle of humanity which requires us to use weapons that will not inflict unnecessary suffering. For all these reasons, I suggest to you that these targeted strikes against al-Qaida terrorists are indeed ethical and just. … Targeted strikes are wise. Remotely piloted aircraft … strike their targets with astonishing precision, … Yet they are also a wise choice because they dramatically reduce the danger to innocent civilians, especially considered against massive ordnance that can cause injury and death far beyond their intended target. … a pilot operating this aircraft remotely … might actually have a clearer picture of the target and its surroundings, … There’s another reason that targeted strikes can be a wise choice, the strategic consequences that inevitably come with the use of force.  As we’ve seen, deploying large armies abroad won’t always be our best offense. … In comparison, there is the precision of targeted strikes.

In an 11-paragraph statement given to McClatchy in response to its reports that we’ve been “targeting” people who are not our enemies last Friday (but not, as far as I can tell, released more broadly), National Security Council spokesperson (and Tommy Vietor replacement) Caitlin Hayden uses a form of “target” just three times, Read more

Andy Card LOL: Bush Can’t Pardon Himself for Torture (But Obama Has)

As part of the discussion in his book explaining how the CIA shifted from torture to killing, Mark Mazzetti tells the story of how the CIA balked at engaging in further torture after the Detainee Treatment Act.

After President Bush signed the bill into law, then-CIA Director Porter Goss wrote the White House saying the CIA would refuse to torture unless and until they got a guarantee they wouldn’t be prosecuted for doing it. In response, the Bush Administration sent Andy Card to the CIA to try to calm them down.

Card drove out to Langley intending to soothe the fears at CIA headquarters, but his visit was a disaster. Inside a packed conference room, Card thanked the assembled CIA officers for their service and their hard work but refused to make any firm declarations that agency officers wouldn’t be criminally liable for participating in the detention-and-interrogation program.

The room became restless. Prodded by his chief of staff, Patrick Murray, Porter Goss interrupted Card.

“Can you assure these people that the politicians will not walk away from the people who carried out this program?” Goss asked. Card didn’t answer the question directly. Instead, he tried to crack a joke.

“Let me put it this way,” he said. “Every morning I knock on the door of the Oval Office, walk in, and say, ‘Pardon me, Mr. President.’ And of course, the only person the president can’t pardon is himself.”

Card giggled after he said this, but his joke landed with a thud. The White House chief of staff, when asked whether President Bush would protect CIA officers from legal scrutiny, had suggested that the most they might be abel to rely on is a presidential pardon after the indictments and convictions were handed down. (127-128)

Goss effectively repeated a request the CIA had made, unsuccessfully, as early as July 13, 2002 (when, it should be said, Goss was ostensibly in charge of overseeing the program at the House Intelligence Committee, though there’s no reason to believe he knew about the earlier request): for an Administration guarantee that everyone involved in the torture program would be shielded from criminal consequences for kidnapping and torturing.

And in response, Card implied to these CIA officers and executives two things:

  • President Bush would pardon anyone convicted of crimes related to torture
  • Bush, himself, was ultimately exposed to prosecution for those crimes as well (all the more so, since he couldn’t pardon his own crimes)

Now, Card wouldn’t have even tried such a joke unless he knew his audience knew that the torture program was based on a Presidential Finding — what we know to be the September 17, 2001 Gloves Come Off Memorandum of Notification.

There’s fairly clear evidence that CIA’s officers did know about it.

George Tenet had made that clear on every single page of his January 2003 Guidelines on Interrogations, which at least some CIA interrogators had to sign.  Read more

Ten Human Rights Groups Unified in Opposition to Drone and/or Targeted Killing Court

A group of 10 human rights groups have written President Obama a letter calling for him to fulfill his State of the Union promise of more openness about drone and/or targeted killing.

The letter calls for obvious sorts of transparency (including the public release of all CIA, DOD, and DOJ documents pertaining to drone and/or targeted killing, as well as sharing of information Congress needs to conduct oversight) and warns that several of the interpretations adopted by the US (for example, its overly broad definition of imminence) don’t abide by international law.

But I’m most interested in this passage:

Judicial review is a central pillar of checks and balances. It is essential for accountability and transparency. Yet, the administration’s position is that judicial review is “not appropriate” in targeted killings cases and it has invoked broad interpretations of the political question and immunity doctrines, Bivens special factors, and the state secrets privilege to obstruct litigation.

We do not believe that accountability and transparency will be improved by recent proposals to establish a FISA-like court to sanction lethal targeting operations. On the contrary, a special targeted killing court would give a veneer of judicial review to decisions to launch lethal strikes without offering a meaningful check on executive power. Instead, we urge the administration to cease making broad claims of non-justiciability or political question, to prevent cases alleging human rights or constitutional violations from being heard on their merits. [my emphasis; footnotes removed]

That all 10 groups — including ACLU, Amnesty International, Center for Constitutional Rights, Human Rights First, Human Rights Watch, and Open Society Foundations, as well as some smaller institutions — would agree on this point makes a powerful statement. It denies the Administration of whatever sanction it hoped a drone and/or targeted killing court might give to their extrajudicial killing program.

The Administration is still more likely to be influenced by increased reporting on the lies they’ve been telling about the program than even these human rights groups. But it is important to see this unified statement undercutting the Administration’s (and Dianne Feinstein’s) efforts to make this program look better by burying it in a secret court.

Scott Shane Defends the Commander-in-Chief’s Language

NYT’s excellent new ombud, Margaret Sullivan, returns to a perennial ombud issue, how the Grey Lady refers to Executive Branch actions and abuses. She includes a long quote from Scott Shane that reveals a great deal about his reporting, and ultimately convinces me we should be calling drone killing assassination.

Adherence to “Targeted Killing” Even While Admitting It’s Not

Let’s start with Shane’s defense of the term “targeted killing” (a term I sometimes use but should not). Sadly, Sullivan cuts off the direct quote from Scott Shane at its most important part, but in the following, the first paragraph here is a direct quote from Shane, the second Sullivan’s report of his comment.

This leaves “targeted killing,” which I think is far from a euphemism. It denotes exactly what’s happening: American drone operators aim at people on the ground and fire missiles at them. I think it’s a pretty good term for what’s happening, if a bit clinical.

Mr. Shane added that he had only one serious qualm about the term. That, he said, was expressed by an administration official: “It’s not the targeted killings I object to — it’s the untargeted killings.” The official “was talking about so-called ‘signature strikes’ that target suspected militants based on their appearance, location, weapons and so on, not their identities, which are unknown; and also about mistaken strikes that kill civilians.”

Shane defends using “targeted killing,” even while admitting that a great deal of drone killing is not targeted. Unless Shane knows a great deal more about individual strikes than he lets on — and therefore knows which drone strikes are targeted at known identities and which are targeted at crowds of unknown military aged males — then he is party to an apparently deliberate strategy on the part of the Administration to spin its killing program as much more orderly and legally justified than it actually is. We saw this operate as recently as yesterday, when John Brennan responded to a question from Jan Schakowsky about signature strikes by telling her to look back at speeches that address only “targeted killing.”

SCHAKOWSKY: Let me ask you this, is there any way that you can define and distinguish between targeted strikes and signature strikes by the — by drones?

BRENNAN: I would refer to the comments that were made by a number of U.S. government officials publicly in speeches, including when I was at the White House. I’m not going to engage in any type of discussion on that here to the Congress, ma’am.

As I said, I’m as guilty of using this term without sufficient awareness as Shane. But doing so consciously really is participating in a propaganda effort the Administration is engaged in.

Executive Order 12333’s Invisible Ink

Then there’s Shane’s refusal to use “assassination” based on Administration claims about Executive Order 12333, which ostensibly prohibits the practice.

“Assassination” is banned by executive order, but for decades that has been interpreted by successive administrations as prohibiting the killing of political figures, not suspected terrorists. Read more

After Continued Blow-Off, House Judiciary Requests Awlaki AND Signature Strike Memos

The other day, when I reported that the Senate Judiciary Committee would get to glimpse the Office of Legal Counsel memos authorizing the killing of Anwar al-Awlaki, I noted that the House Judiciary Committee was not included in that reporting.

Also no word on whether the House Judiciary Committee will laso get to glimpse these memos.

I guess they noted the same.

Dear President Obama,

We write to renew our request from February 8th that members of the House Judiciary Committee be granted the opportunity to review all Justice Department legal opinions related to the use of lethal force in both targeted and so-called “signature strikes” against unidentified terrorist suspects.

Members of the House and Senate Intelligence Committees have been provided an opportunity to review at least some of these opinions. Today, members of the Senate Judiciary Committee were also given access to some, but not all, of the documents that we have requested. There is no reason why a similar bipartisan request from the House Judiciary Committee continues to go unanswered. If arrangements for our review of these materials are not finalized by COB tomorrow (Thursday, April 11, 2013), the Committee will have no choice but to move forward with issuance of subpoenas for the documents.

What’s particularly amusing about this response to the White House’s continued refusal to permit HJC to oversee DOJ is the scope of HJC’s request: Since last December, they’ve been asking for the broader backup, including the memos authorizing signature strikes explicitly. As a result, the Administration’s refusal to share even what they’ve shared with the other oversight committees puts that signature strike request on the subpoena table where it otherwise might not be.

Given Jonathan Landay’s reporting showing the extent not just of strikes where we don’t know the target’s identity, but also the number of side payment strikes we’re conducting, seeing such memos are even more urgent.

I’m guessing the timing gives the White House new-found interest in negotiating sharing those other memos.  Read more