The CIA’s Four-Box of Death

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Just to finish up with my continuing obsession with CIA General Counsel Stephen Preston’s speech at Harvard (don’t miss Josh Gerstein getting into the act with his fact check on the shooting of Osama bin Laden’s wife), I wanted to look at Preston’s “hypothetical case,” which I contend is meant to offer an explanation for how the CIA decided the Anwar al-Awlaki killing was legal.

I say this “hypothetical” is really about Awlaki because Preston focuses closely on Executive Order 12333’s prohibition on assassinations (never mind that OLC holds that this very EO can be pixie dusted without notice). Particularly given that Preston willingly talks about OBL’s killing–about the only other one that might be deemed an assassination–Preston’s attempts to rebut the claims that Awlaki was assassinated seem to arise from the same anxiousness Eric Holder exhibited on the same topic.

In other words, this is the CIA version of the speech Holder made.

Preston describes framing his analysis in terms of a four-box matrix.

I conceive of the task in terms of a very simple matrix. First is the issue of whether there is legal authority to act in the first place. Second, there is the issue of compliance with the law in carrying out the action. For each of these issues, we would look first, and foremost, to U.S. law. But we would also look to international law principles. So envision a four-box matrix with “U.S. Law” and “International Law” across the top, and “Authority to Act” and “Compliance in Execution” down the side. With a thorough legal review directed at each of the four boxes, we would make certain that all potentially relevant law is properly considered in a systematic and comprehensive fashion.

Curiously, Preston checks off the first box–authorization under US law before the op–by looking to Article II, not the AUMF Congress passed.

First, we would confirm that the contemplated activity is authorized by the President in the exercise of his powers under Article II of the U.S. Constitution, for example, the President’s responsibility as Chief Executive and Commander-in-Chief to protect the country from an imminent threat of violent attack. This would not be just a one-time check for legal authority at the outset. Our hypothetical program would be engineered so as to ensure that, through careful review and senior-level decision-making, each individual action is linked to the imminent threat justification.

A specific congressional authorization might also provide an independent basis for the use of force under U.S. law. [my emphasis]

That’s interesting for several reasons. First, it situates the authority to use lethal force not in the stated basis OLC is using–the one SCOTUS has affirmed (sort of), but in Article II. Just where John Yoo would look to situate it.

This also means that CIA maintains it has this authority–presuming a Presidential Finding–outside the context of a declared war.

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Episode Three of Who Rules Your World? Begins: The Leak Retribution Event

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Episode one of Who Rules Your World?, pitting Barack Obama against Rupert Murdoch, passed mostly under the radar. The “privatize education” event ended in an early draw when the darling of both contestants, Michelle Rhee, resigned in disgrace for a cheating scandal. Though in truth, Murdoch’s loss of a big NY state contract (the contract opportunity arose out of Obama’s Race to the Top program) and Obama’s determination to continue his reforms using executive orders tips the balance to the President.

Episode two of Who Rules the World?, the illegal wiretap cover-up, has thus far been a clear Obama win. Within weeks after taking office, Obama reaffirmed the state secrets invocations of his predecessor. And while al-Haramain still fights to impose penalties in its successful case against the government, Obama has otherwise succeeded in shielding the government for any accountability for illegal wiretapping. Crucially, John Brennan, who had a role in the illegal wiretap program, has suffered no consequences for his role in the scandal.

Rupert’s son James has not enjoyed the same luck Brennan has. He had to resign from BSkyB to prevent News Corp’s hacking scandal from endangering the rest of the corporation’s business plans. Add in the substantial fines News Corp has already paid and the likelihood that a number of people involved in its illegal wiretap program will do jail time, and it’s clear that Obama has won the illegal wiretap coverup hands down.

Episode Three of Who Rules Your World?, leak retribution, might be more interesting. Sure, the retribution against Jeff Sterling for his employment dispute with John Brennan and John Kiriakou for revealing members of the torture squads (a program Brennan also had ties to) are ongoing. But the case against Thomas Drake for exposing the graft involved in NSA’s illegal wiretap contracts blew up in spectacular fashion; plus, the failure of the retribution against Drake has led to more revelations about the illegal wiretap program.

Meanwhile, we’re just beginning to see how News Corp will respond to the efforts of Fox Mole, now exposed as Joe Muto, for passing embarrassing videos to Gawker. It will be particularly interesting to see how Fox balances retribution with a desire to prevent any more embarrassing revelations. Though of course, Fox is hampered because unlike Obama, he can’t make Fox Mole unemployable by withdrawing his security clearance. Unlike national security whistleblowers, Muto’s employment prospects probably just got a lot rosier, as other news outlets scramble to add to News Corp’s discomfort.

It’s probably just as well that Obama is winning Who Rules Your World? by such margins at this point. I wouldn’t want Rupert to get smart ideas about trying to compete in the assassinations category.

CIA General Counsel: If the President Authorizes It, It’s Legal

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I do hope the Harvard students who listened to this speech from CIA General Counsel Stephen Preston–in which he purported to explain what a law-abiding agency the CIA is and which appears to be the CIA’s effort to prove that the Anwar al-Awlaki killing was legal–are sophisticated enough to realize he, like all spooks, was peddling deceit. I’ll get to those details below.

But first I want to focus on how he bookends his claim that CIA’s “activities are subject to strict internal and external scrutiny.”

He starts by admitting that courts and citizens are not part of this “external scrutiny.”

It is true that a lot of what the CIA does is shielded from public view, and for good reason: much of what the CIA does is a secret! Secrecy is absolutely essential to a functioning intelligence service, and a functioning intelligence service is absolutely essential to national security, today no less than in the past. This is not lost on the federal judiciary. The courts have long recognized the state secrets privilege and have consistently upheld its proper invocation to protect intelligence sources and methods from disclosure. Moreover, federal judges have dismissed cases on justiciability or political question grounds, acknowledging that the courts are, at times, institutionally ill-equipped and constitutionally incapable of reviewing national security decisions committed to the President and the political branches.

Let’s unpack the logic of this: first, CIA operations are subject to strict “external scrutiny.” But because–“national security”–such external scrutiny is not possible.

Next, Preston claims that the courts have been in the business of consistently upholding the “proper invocation” of state secrets “to protect intelligence sources and methods.” Of course, just about every invocation of state secrets has been subsequently or contemporaneously shown to be an effort to protect–at best–misconduct and, in most cases, illegal activities: things like kidnapping, illegal wiretapping, and torture. So when he describes this “proper invocation” of states secrets, he is effectively saying that when lawsuits threatened to expose CIA’s law-breaking, courts have willingly dismissed those cases in the name of sources and methods.

And even before it gets to that stage, courts will bow to the Executive Branch’s claim that only Congress and the Executive can decide what forms of law-breaking by the CIA will be tolerated; courts are “ill-equipped” to judge the legality of illegal actions if those illegal actions are committed by the CIA.

So to prove that CIA’s ops are subject to “external scrutiny,” Preston starts by admitting that two of the most important agents of external scrutiny–citizens and courts–don’t actually exercise any scrutiny, particularly in cases where the government is willing to invoke state secrets to shield illegal activities.

Read more →

SCOTUS and the Designated Strip Seach Observers

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I spent most of yesterday digging through the PREAL document Jason Leopold and Jeff Kaye liberated the other day (more on that later). Like Harper’s Scott Horton, reading it closely just after SCOTUS made it legal to strip search people arrested of offenses as minor as leash law violations made me see the Court’s decision not as a legitimate means to keep jails safe, but as a way to make it easier to cow select classes of our population. Horton writes,

Just as the Florence decision was being prepared, the Department of Defense released a previously classified training manual used to prepare American pilots for resistance to foreign governments that might use illegal and immoral techniques to render them cooperative. Key in this manual are the precise practices highlighted in Florence. Body-cavity searches are performed, it explains, to make the prisoner “feel uncomfortable and degraded.” Forced nudity and invasion of the body make the prisoner feel helpless, by removing all items that provide the prisoner with psychological support. In other words, the strip search is an essential step in efforts to destroy an individual’s sense of self-confidence, well-being, and even his or her identity.

For me, it wasn’t so much PREAL’s description of strip searches themselves in the context of SERE training, with the manual’s explicit statement that searches serve to humiliate, degrade, and erode identity. Rather, it was the job description for one designated role at the SERE fake jail, that of the “body cavity check (BCC) observer.” The BCC observer’s sole role in the SERE training is to stare at prisoners during their intake strip search.

The role of this observer is to view the students while the BCC is being conducted. You do not conduct the actual BCC; the searchers will do this. You are there to observe and make the student feel uncomfortable and degraded. The observer will not have any verbal interaction with the student. Just act solemn and unimpressed.

Government psychologists have devised not just the strip searches themselves to degrade SERE trainees, they’ve ensured there will always be someone staring during the process (and while the PREAL contradicts itself on this and many topics, it calls for opposite sex observers).

Just act solemn and unimpressed and our cultural hangups about nudity will do the rest.

Remember, SERE is supposed to be a good thing. It trains our warriors to withstand the procedures our enemies use to break down their humanity if they’re captured. Except that we’ve rolled out the procedures not just for use against our own war captives, but for use in county jails across the country. SCOTUS just sanctioned the use of these intentionally dehumanizing procedures for the most minor violations of societal rules. (And don’t forget that–as Glenn Greenwald pointed out–the Obama Administration argued for strip searches as well.)

Now, all a local cop has to do to make a selected person feel the dependency wrought by humiliation is trump up some minor charge and whisk the (usually) young black male to the jail for a strip search. It won’t stop there, either. To justify this procedure, Kennedy points to three dangerous traffic stops, implicitly inviting invasive searches there, too.

We’ve long known these procedures of control are about imposing dependency (the word PREAL uses). But if there were any doubt, read how the military creates a fictional space designed to strip people of their humanity–compare it with the world around us.

Did DOJ Ratchet Up the Charges Against Kiriakou Because of Poland Investigation?

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When John Kiriakou was first charged with espionage, he was charged with four counts:

  • Leaking Covert Officer A’s identity under IIPA section B
  • Leaking Deuce Martinez’ identity under defense information clause of Espionage Act
  • Leaking Deuce Martinez’ tie to the torture program under defense information clause of Espionage Act
  • Lying to the CIA’s Publication Review Board; falsifying a material fact

In today’s indictment, Kiriakou was charged with five counts:

  • Leaking Covert Officer A’s identity under IIPA section A
  • Leaking Covert Officer A’s tie to the torture program under defense information clause of Espionage Act
  • Leaking Deuce Martinez’ identity under defense information clause of Espionage Act
  • Leaking Deuce Martinez’ tie to the torture program under defense information clause of Espionage Act
  • Lying to the CIA’s Publication Review Board; falsifying a material fact

Not only did they ratchet up the IIPA violation to one that carries a 10 year, as opposed to a 5 year, penalty, but they also added a violation of the Espionage Act tied to Covert Officer A’s ties to the torture program.

This is likely designed to punish Kiriakou for refusing to accept their plea deal.

But I also wonder whether it’s not a response to the reports that Poland will file charges against the officials who helped the CIA set up its torture prison in that country.

According to the complaint, the torture investigators never did anything with Covert Officer A’s identity (which they got via the journalist to whom Kiriakou provided the information). The FBI officer who wrote the affidavit wrote,

Neither Journalist A nor any other journalist to my knowledge has published the name of Covert Officer A.

The IIPA violation doesn’t require any intent of damage. Intentionally leaking the identity is enough. But the Espionage charge does:

Whoever, lawfully having possession of, access to, control, or being entrusted with any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, or note relating to the national defense, or information relating to the national defense which information the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation, willfully communicates, delivers, transmits or causes to be communicated, delivered, or transmitted or attempts to communicate, deliver, transmit or cause to be communicated, delivered or transmitted the same to any person not entitled to receive it, or willfully retains the same and fails to deliver it on demand to the officer or employee of the United States entitled to receive it; [my emphasis]

That is, to make the Espionage charge tied to Covert Officer A stick, they’re going to have to prove that Kiriakou had reason to know that leaking his name (to a journalist, but ultimately, to lawyers for people who had been tortured by Covert Officer A) “could be used to the injury of the United States.”

Are they really preparing to argue that helping men mount a fair defense in court injures the United States? That ensuring our legal system works the way it is supposed to work, rather than the way the kangaroo courts at Gitmo have been set up, hurts this country?

Or, alternately, are they going to build their “injury” theory on the Polish tie–on Deuce Martinez’ and (possibly) Covert Officer A’s involvement on Polish soil (if he was, in fact, there)?

They may well just be punishing Kiriakou for putting them to the trouble of involving journalists and CIPA and exposure of their torture program. But I wouldn’t be surprised if they pointed to Poland’s disinterest in cooperating in any more illegal covert activities with us as the “injury” that Kiriakou’s alleged leaks have cause.

Did Covert Officer A–Whose Identity John Kiriakou Allegedly Leaked–Leave the CIA?

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DOJ has apparently failed in its efforts to get John Kiriakou to agree to a plea deal; they’ve just indicted him.

Interestingly, the indictment describes Covert Officer A–whose identity Kiriakou allegedly leaked–differently than the complaint did. The complaint described him this way:

Covert Officer A is currently a covert CIA employee whose relationship to the CIA has been classified for more than two decades.

Here’s how the indictment describes him:

Covert Officer A was a covert CIA employee whose association with the CIA has been classified for more than two decades. Covert Office A was a covert agent as defined at Title 50, United States Code, Section 426(4), and the United States Government was taking affirmative measures to conceal Covert Officer A’s intelligence relationship to the United States. The association of Covert Officer A with the [Rendition, Detention, and Interrogation] Program was also classified and constituted national defense information. [my emphasis]

With the exception of the bolded passage, the information on Covert Officer A’s relationship to the CIA is now all past tense.

Which suggests several possibilities: That Covert Officer A’s status has been changed to permit this prosecution; Covert Officer A is no longer covert (though is still classified); Covert Officer A has left the CIA; or that Covert Officer A is no longer alive. Update: DOJ says this is the way they normally write their indictments.

Alternately (given the way the CIA screws up leak investigations) maybe they were giving Pat Fitzgerald bad information during the investigation. Nahh! The CIA wouldn’t screw up another leak prosecution, would they?

Update: Compare how they describe Covert Officer A with how they describe Deuce Martinez–whose employment, but not identity–is described in the past tense.

Officer B was employed by the CIA as an analyst assigned to the CIA Counterterrorism Center. Though the fact that the CIA employed Officer B was not itself classified, the associations of Officer B with the RDI Program and with the Abu Zubaydah operation were classified and constituted national defense information.

Update: The DOJ announcement says Covert Officer A “remains covert.”

 

Is Obama Threatening the “Special Relationship” to Hide Torture?

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I noted, when David Cameron was in town, that his Justice Secretary, Kenneth Clarke, was pushing to expand “closed material proceedings” as a way to better protect secret information. The effort was a response, Clarke claimed, to courts forcing the government to release information about Binyam Mohamed’s torture, which ended up revealing the US was using some torture techniques before the Bybee Memo purportedly approved torture.

Now, Cameron’s government is ratcheting up the fear-mongering, claiming that the US withheld information about a terrorist threat 18 months ago because of the the Mohamed release.

The CIA warned MI6 that al-Qaeda was planning an attack 18 months ago, but withheld detailed information because of concerns it would be released by British courts.

British intelligence agencies were subsequently forced to carry out their own investigations, according to Whitehall sources.

Several potential terrorists were identified with links to a wider European plot, but it is still not known whether the British authorities have uncovered the full extent of the threat.

I flew through London 18 months ago during what I suspect was this terror threat. It was the kind of threat where one airline–American–had rolled out the full heightened security theater, but another–Delta–had nothing special, both on the same day.

That kind of terrorist threat.

If it is true the CIA is withholding such information (I’m not saying I buy that the US withheld information from a serious threat), then consider what this means. Back in August 2006, the US (specifically, Dick Cheney and Jose Rodriguez) betrayed the “Special Relationship” by asking the Pakistanis to arrest one of the plotters in the liquid planes plot, which in turn forced the Brits to roll up their own investigation before they had solidified the case against the plotters. Several of the plotters had to be tried two times to get a conviction. The Bush Administration did all this as an election stunt.

And yet we’re the ones purportedly complaining about information sharing?

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Philip Zelikow Saves Condi Rice’s Hiney (Again)

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Back in April 2009, former State Department Counselor and all-around Condi Rice fixer Philip Zelikow revealed that “in 2005,” he had written a dissent to Steven Bradbury’s 2005 Memo finding the torture program complied with the Convention against Torture, but that most copies of it had been destroyed by the Administration.

At the time, in 2005, I circulated an opposing view of the legal reasoning. My bureaucratic position, as counselor to the secretary of state, didn’t entitle me to offer a legal opinion. But I felt obliged to put an alternative view in front of my colleagues at other agencies, warning them that other lawyers (and judges) might find the OLC views unsustainable. My colleagues were entitled to ignore my views. They did more than that:  The White House attempted to collect and destroy all copies of my memo. I expect that one or two are still at least in the State Department’s archives.

It turns out that David Addington didn’t succeed in destroying all the copies. The National Security Archive just liberated a copy.

Now, the memo (which was actually dated February 15, 2006) reveals Zelikow’s very sane legal argument that our torture program had to comply with the 8th Amendment. But it also reveals some subtleties about the bureaucratic maneuvering around torture. Notably, that Zelikow was trying to save Condi Rice’s arse again.

To understand why, go back to this post (see also this post), explaining what Bradbury was trying to do with his 2005 CAT Memo: respond to explicit concerns raised by Congress (probably Jay Rockefeller) about whether our torture program complied with the CAT. It shows how (as documented in the narrative on the process that Rockefeller released), the Senate Intelligence Committee had forced the Bush Administration to agree to consider whether our torture program violated CAT. The Administration agreed to do so only after the National Security Council–then chaired by Condi Rice–agreed.

According to CIA records, subsequent to the meeting with the Committee Chairman and Vice Chairman in July 2004, the CIA met with the NSC Principals to discuss the CIA’s program. At the conclusion of that meeting, it was agreed that the CIA would formally request that OLC prepare a written opinion addressing whether the CIA’s proposed interrogation techniques would violate substantive constitutional standards, including those of the Fifth, Eighth and Fourteenth Amendments regardless of whether or not those standards were deemed applicable to aliens detained abroad.

DOJ stalled for 10 months. Daniel Levin, as acting head of OLC, approved more individual torture techniques. Levin wrote an unclassified memo ignoring CAT. Congress continued to pressure. The Administration laterally transferred Levin because he wasn’t writing the memos they wanted, authorizing combined techniques and waterboarding and, somehow, finding that torture program complied with CAT. Bradbury got the job to write those memos. And then, finally, 10 months after SSCI demanded that DOJ consider CAT, Bradbury wrote his memo finding that the torture program did not violate CAT’s prohibition against cruel, inhuman, or degrading treatment.

I lay out in the post the specious tricks Bradbury pulled to make that claim, and scribe laid out the legal reasons the arguments were so specious. But in specific regard to SSCI’s demand that OLC review whether the program complied with the Fifth, Eighth, and Fourteenth Amendment, Bradbury punted by saying it didn’t have to, and certainly didn’t have to comply with the Eighth.

Based on CIA assurances, we understand that the interrogations do not take place in any … areas over which the United States exercises at least de facto authority as the government. … We therefore conclude that Article 16 is inapplicable to the CIA’s interrogation practices and that those practices thus cannot violate Article 16.

[snip]

Because the high value detainees on whom the CIA might use enhanced interrogation techniques have not been convicted of any crime, the substantive requirements of the Eighth Amendment would not be relevant here, even if we assume that Article 16 has application to the CIA’s interrogation program.

After reading drafts of such bullshit, Jim Comey tried to convince Bradbury to fix it–to no avail.

Of note, however, here’s what then Attorney General Alberto Gonzales said Condi–who had become Secretary of State in the interim–had to say about the importance of complying with our treaty obligations.

The AG began by saying that Dr. Rice was not interested in discussing details and that her attitude was that if DOJ said it was legal and CIA said it was effective, then that ended it, without a need for detailed policy discussion.

And so, with the Secretary of State dismissing treaty obligations by saying “that ended it,” torture got approved for use by the Executive Branch again.

Zelikow’s memo admits that State didn’t object to Bradbury’s memo.

The State Department agreed with the Justice Department May 2005 conclusion that [Article 16] did not apply to CIA interrogations in foreign countries.

Now, Zelikow claims that passage of the McCain amendment–which was signed on December 30, 2005–is what changed the State Department’s interpretation. Read more →

The National Security Committee Knew They Were Going to Get FALSE Confessions from Torture

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Jason Leopold [update: and Jeff Kaye] have an important article on a key document used to develop the torture program, but I think its title should be stronger. As his article shows, Condi Rice and several high level Bush officials were briefed at a key meeting in May 2002 and in several follow-up National Security Council meetings on a number of torture techniques the CIA would eventually (and had, to some extent–I’ll have more to say about this in a follow-up) integrated into its torture program.The JPRA document used in the meeting makes it clear the the point of these techniques is to train students to resist “political exploitation” (see page 6; elsewhere the document talks about media exploitation).

As Leopold and Jeff Kaye have previously reported, “exploitation” has a specific meaning, including not just interrogation, but also recruitment as double agents and for propaganda purposes.

“The Jessen notes clearly state the totality of what was being reverse-engineered – not just ‘enhanced interrogation techniques,’ but an entire program of exploitation of prisoners using torture as a central pillar,” he said. “What I think is important to note, as an ex-SERE Resistance to Interrogation instructor, is the focus of Jessen’s instruction. It is exploitation, not specifically interrogation. And this is not a picayune issue, because if one were to ‘reverse-engineer’ a course on resistance to exploitation then what one would get is a plan to exploit prisoners, not interrogate them. The CIA/DoD torture program appears to have the same goals as the terrorist organizations or enemy governments for which SV-91 and other SERE courses were created to defend against: the full exploitation of the prisoner in his intelligence, propaganda, or other needs held by the detaining power, such as the recruitment of informers and double agents. Those aspects of the US detainee program have not generally been discussed as part of the torture story in the American press.”

As the examples of Ibn Sheikh al-Libi and Jabir al-Fayfi make clear, we used coercive methods for both of these purposes, in addition to whatever intelligence goals we had.

Thus, as Steven Kleinman notes for today’s article, Condi and others were shown what amounts to a how to manual on false confessions before they approved techniques from it for use with Abu Zubaydah and other detainees.

Air Force Col. Steven Kleinman, a career military intelligence officer recognized as one of the DOD’s most effective interrogators as well a former SERE instructor and director of intelligence for JPRA’s teaching academy, said he immediately knew the true value of the PREAL manual if employed as part of an interrogation program.

“This is the guidebook to getting false confessions, a system drawn specifically from the communist interrogation model that was used to generate propaganda rather than intelligence,” Kleinman said in an interview. “If your goal is to obtain useful and reliable information this is not the source book you should be using.”

So it’s important that we know top Bush officials got this document not just because they approved these techniques for the war on terror, but because the May meeting took place between the two dates–February 22 and July 31–when DIA expressed doubts about al-Libi’s claim, made under torture, that there were ties between al Qaeda and Iraq.

Bush’s top advisors knew what they were getting when they approved torture. And they approved them knowing they could be used to get false confessions.

While Celebrating “Special Relationship,” Cameron’s Government Pushes for Secret Law

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David Cameron is in town.

Which means, amid much pomp and circumstance (and jokes about the Brits burning DC in 1812), the leader of Britain and the leader of the US will reaffirm the “special relationship.”

Meanwhile, across the pond, Cameron’s Justice Secretary Kenneth Clarke is pushing to expand “closed material proceedings”–a system of secret trials–to civil trials involving national security information.

Effectively, he proposes to use secret hearings with separate lawyers in cases like those of Binyam Mohamed, so rather than settling with a man who had been tortured with British complicity, they can introduce hearsay in their effort to win the case.

And, of course, they’re proposing to do this because the US has threatened–but not acted on threats–to withhold intelligence from the UK because they let it be known that Mohamed was tortured at the hands of the Americans.

The lawyers who have worked CMPs in the past released a scathing indictment of the idea, noting that it sacrifices the foundations of British justice.

Closed material procedures (CMPs) represent a departure from the foundational principle of natural justice that all parties are entitled to see and challenge all the evidence relied upon before the court and to combat that evidence by calling evidence of their own. They also undermine the principle that public justice should be dispensed in public.

[snip]

Contrary to the premise underlying the Green Paper, the contexts in which CMPs are already used have not proved that they are “capable of delivering procedural fairness”. The use of SAs may attenuate the procedural unfairness entailed by CMPs to a limited extent, but even with the involvement of SAs, CMPs remain fundamentally unfair. That is so even in those contexts where Article 6 of the ECHR requires open disclosure of some (but not all) of the closed case and/or evidence.

It is one thing to argue that, for reasons of national security, the unfairness and lack of transparency inherent in CMPs should be tolerated in specific areas – such as deportation appeals and control order proceedings. It is quite another to suggest that Government Ministers should be endowed with a discretionary power to extend that unfairness and lack of transparency to any civil proceedings, including proceedings to which they are themselves party.

The introduction of such a sweeping power could be justified only by the most compelling of reasons. No such reason has been identified in the Green Paper and, in our view, none exists.

I hoped when the British courts granted Yunus Rahmatullah’s habeas petition, that the Brits might remind us of all the good law they gave us. Sadly, rather than releasing Rahmatullah, the US has stalled.

It appears, then, that things are going in the wrong direction: because we refuse any accountability for the torture and other abuses committed in the name of counterterrorism, we’re trying to corrode not just our own legal system, but Britain’s as well.

Welcome to America, David Cameron. Let’s hope you remind Obama that one “special” part of our common heritage is the system of law we seem so intent on dismantling.