U.N. Expert Calls For U.S. To Halt CIA Drone Killings

The initial blockquoted text below is from a press release from the ACLU, describing the report by the U.N. special rapporteur regarding the illegality of the Obama Administration's use of drones to assassinate people. These drone attacks have infamously killed scores of innocents, but their use on even supposed "legitimate" targets borders on lawlessness.

U.S. use of these high-tech tools of state terror is criminal, and is an extremely dangerous precedent, threatening all who would ever oppose the U.S. state politically. How long, we must ask, before these proverbial chickens come home to roost? Drones are already being used for surveillance over portions of the United States.



The ACLU press release:

NEW YORK – Targeted killings, including the use of drones, are increasingly used in ways that violate international law, according to a report out today by a U.N. expert on extrajudicial killings. The American Civil Liberties Union said the report underscores the alarming legal questions raised by the U.S. program of targeting and killing people – including U.S. citizens – sometimes far from any battlefield.

According to the report by U.N. special rapporteur Philip Alston, which will be presented to the U.N. Human Rights Council Thursday, while targeted killings may be permitted in armed conflict situations when used against combatants, fighters or civilians who directly engage in combat-like activities, they are increasingly being used far from any battlefield. The report states that "this strongly asserted but ill-defined license to kill without accountability is not an entitlement which the United States or other States can have without doing grave damage to the rules designed to protect the right to life and prevent extrajudicial killings."

Alston also criticized the U.S. invocation of the "law of 9/11," which it uses to justify the use of force outside of armed-conflict zones as part of the so-called global war on terrorism. The report called for the United States and other countries to end the "accountability vacuum" by disclosing the full legal basis for targeted killings and specifically the measures in place to ensure wrongful killings are investigated, prosecuted and punished.

"The U.S. should heed the recommendations of the rapporteur and disclose the full legal basis of the U.S. targeted killings program, and it should abide by international law. The entire world is not a battlefield, and the government cannot use quintessentially warlike measures anywhere in the world that it believes a suspected terrorist might be located," said Jamil Dakwar, Director of the ACLU Human Rights Program. "The Obama administration has pledged to lead by example and restore respect for rule of law, but U.S. targeted killings are impeding U.S. leadership on human rights and sending the message that some causes can be fought outside the rule of law and without transparency and accountability."

The ACLU in March filed a Freedom of Information Act (FOIA) lawsuit demanding that the government disclose the legal basis for its use of unmanned drones to conduct targeted killings overseas, and in April sent a letter to President Obama condemning the U.S. policy on targeted killings and urging him to bring it into compliance with international and domestic law.

"The U.S. program of targeted killing outside of armed conflict zones is illegal and raises serious policy questions that ought to be debated publicly," said Jonathan Manes, legal fellow with the ACLU National Security Project. "In addition to the legal basis, scope and limits of the program, the Obama administration should disclose how many civilians have been killed, how the program is overseen, and what accountability mechanisms exist over the CIA and others who conduct the targeted killings."

More information about the ACLU's FOIA lawsuit is available online at: www.aclu.org/national-security/predator-drone-foia

The ACLU's letter to Obama is available at: www.aclu.org/human-rights-national-security/letter-president-obama-regarding-targeted-killings

Bmaz at Emptywheel had an excellent posting yesterday on this very topic, U.N. Expert Calls On U.S. To Halt CIA Targeted Killings. In the post, he captures the exquisite yet abhorrent irony in how the U.S. is handling the so-called legality issues surrounding these remote-control assassinations:

Today, the report is out, and Charlie Savage again brings the details in the [New York] Times:

A senior United Nations official said on Wednesday that the growing use of armed drones by the United States to kill terrorism suspects is undermining global constraints on the use of military force. He warned that the American example will lead to a chaotic world as the new weapons technology inevitably spreads....

In an interview, Mr. Alston, said the United States appears to think that it is “facing a unique threat from transnational terrorist networks” that justifies its effort to put forward legal justifications that would make the rules “as flexible as possible"....

Alston’s concerns are especially troubling considering Charlie Savage’s first NY Times report in last Friday’s print edition on the quiet efforts of the Obama Administration to insure its drone operators can never be prosecuted for the extrajudicial murders they commit. Describing surreptitious efforts to amend the Military Commissions Manual:

The Pentagon delayed issuing a 281-page manual laying out commission rules until the eve of the hearing. The reason, officials say, is that government lawyers had been scrambling to rewrite a section about murder because it has implications for the C.I.A. drone program.

An earlier version of the manual, issued in 2007 by the Bush administration, defined the charge of “murder in violation of the laws of war” as a killing by someone who did not meet “the requirements for lawful combatancy” — like being part of a regular army or otherwise wearing a uniform. Similar language was incorporated into a draft of the new manual.

But as the Khadr hearing approached, Harold Koh, the State Department legal adviser, pointed out that such a definition could be construed as a concession by the United States that C.I.A. drone operators were war criminals. Jeh Johnson, the Defense Department general counsel, and his staff ultimately agreed with that concern. They redrafted the manual so that murder by an unprivileged combatant would instead be treated like espionage — an offense under domestic law not considered a war crime.

All of which is not just distressing, but telling as to who the United States have become as a country. Made all the more sickening by the fact the extrajudicial assassination program has exacerbated geometrically under the short, but deadly, tenure of the supposedly enlightened Constitutional law authority Barack Obama.

Will Military Torture Be Transferred to the United States?

Originally posted at Firedoglake

My last article [on this topic] reintroduced the topic of abuse and torture as being used in the current version of the Army Field Manual (AFM), and particular in its infamous "Appendix M." From time to time, the implications of actually using the AFM has theatened to break through the right-wing monopoly of discussion about government interrogation policy. Consider this exchange, last May, between NBC's Chuck Todd and White House Press Secretary Robert Gibbs:

Q What is he going to say to those who make the argument, which has been made, he's actually just changing rhetoric, he's not changing policy that much? With Guantanamo, you're essentially calling for a way of moving Guantanamo. You're just changing the name.

MR. GIBBS: Well, ask that question of some of our severe detractors on this and see if you get agreement on that. I actually don't think that's the case. I think what the -- the decision that the President made on military commissions is something that's envisioned that's much different than what was passed in Congress and signed by the President in late September and early October in 2006.

I think, as we've talked about here, enhanced interrogation techniques are something that this President has outlawed as part of the actions of this administration. I don't think those are --

Q Yet the fine print, there's open to interpretation about what different techniques could be used.

MR. GIBBS: How so?

Q In the argument that there's definitely some words in there that one could interpret that it's --

MR. GIBBS: Chuck, I don't think you're -- let me understand -- I don't think you're intimating that the Army Field Manual would allow one to do --

Q There have been some interpretations that there are --

MR. GIBBS: I can assure you that's not how the Army interprets the Army Field Manual, and I assume that generals in the Army and the military that are in charge of ensuring that the procedures of the military are in line with the laws of this country -- I don't think you're intimating that people in the Army are inferring different things about their own field manual, because I know that's not the case.

Gibbs appears to think that the military can be trusted to ensure "the procedures of the military are in line with the laws of this country," eviscerating the idea of Congressional oversight. What Todd calls "fine print" in the Army Field Manual -- "open to interpretation" -- others have called torture or abuse.

The President of the National Lawyers Guild Marjorie Cohn has stated that portions of the AFM protocol, especially the use of isolation and prolonged sleep deprivation, constitutes cruel, inhuman or degrading treatment or punishment and is illegal under the Common Article 3 of the Geneva Conventions, the U.N. Convention Against Torture and the International Covenant on Civil and Political Rights. Hina Shamsi, an attorney with the ACLU's National Security Project, has stated that portions of the AFM are "deeply problematic" and "would likely violate the War Crimes Act and Geneva," and at the very least "leave the door open for legal liability." Physicians for Human Rights and the Constitution Project have publicly called for the removal of problematic and abusive techniques from the AFM.

The Center for Constitutional Rights wrote last year:

Appendix M of the Army Field Manual... allows the use of techniques such as prolonged isolation, sleep deprivation, sensory deprivation, and inducing fear and humiliation of prisoners. These techniques, especially when used in combination as permitted by the AFM, constitute cruel, inhuman and degrading treatment, and in some cases, torture. These techniques have caused documented, long-lasting psychological and physical harm and were condemned by a bipartisan congressional report released last month, as well as by the Bush-appointed head of the military commissions at Guantanamo.

"In some cases, torture." As bmaz pointed out almost exactly one year ago, when Guantanamo Convening Authority judge Susan Crawford dismissed charges against Guantanamo prisoner Mohamed al-Qahtani, telling Washington Post reporter Bob Woodward that the U.S. tortured al-Qahtani:

Crawford has exposed to bright sunlight the lie that is Barack Obama’s, and other politicians’, simple minded reliance on the Army Field Manual as cover for their torture reform credentials. Interrogators can stay completely within the Army manual and still be engaging in clear, unequivocal torture under national and international norms, laws and conventions.

Now -- all delays due to 23-year-old would-be bombers aside -- Obama is set to transfer the Guantanamo regime to a nearly abandoned, rural Illinois prison. Will that include the transfer of Appendix M interrogations, and other abusive elements of the AFM protocol? These are questions we need to be asking. Or will progressive bloggers hope that Chuck Todd carries their fire for them?

Next: "Obama's Interrogation Policy and the Use of Torture in the Army Field Manual"

Sleight of Hand: Obama's Military Commissions Redux

Peter Finn at the Washington Post appears pretty confident about it:

The Obama administration is preparing to revive the system of military commissions established at Guantanamo Bay, Cuba, under new rules that would offer terrorism suspects greater legal protections, government officials said.

The rules would block the use of evidence obtained from coercive interrogations, tighten the admissibility of hearsay testimony and allow detainees greater freedom to choose their attorneys, said the officials, who spoke on the condition of anonymity because they were not authorized to speak publicly.

This news comes after Andy Worthington's scoop that Chief Prosecutor of the Military Commissions, Col. Lawrence Morris, "is retiring from active duty, and will be replaced by Capt. John Murphy (US Navy Reserve)." Murphy was the lead prosecutor in the case of Salim Hamdan, Osama bin Laden's driver, who despite Murphy's plea for a 30-year-sentence for the small fry Hamdan, got a minimal sentence and was sent back to Yemen last November.

Murphy is also a member of the prosecution team for Omar Khadr, the Canadian famously arrested on the battlefield at age 15 and shipped back to Gitmo as a dangerous "terrorist." As Worthington notes:

As Khadr’s case is one that, outside of the Pentagon and the corridors of power in Canada, has attracted universal condemnation –- primarily because of the Bush administration’s neglect and abuse of a juvenile, and because of well-chronicled attempts by the prosecution to suppress evidence vital to his defense –- it may well be that, as a result, Capt. Murphy will pursue an aggressive agenda if the Obama administration decides to ignore all sensible advice to the contrary, and proceeds to revive the Commissions, rather than pursuing those cases worthy of trial (somewhere between 25 and 50, according to the best estimates) in federal courts on the US mainland.

The Washington Post story, and an earlier one in the New York Times, appear to corroborate Worthington's fears about where the military commissions are going.

Amnesty International and ACLU spokesmen have already denounced the proposed "changes". "'It's going to tarnish the image of American justice again,' said Tom Parker, a counterterrorism specialist at Amnesty International."

bmaz over at Emptywheel/FDL has produced a succinct takedown of the Obama proposal:

The rules would "block the use of evidence obtained from coercive interrogations". All evidence from coercive interrogations or just some evidence from coercive interrogations? Will the ban be on any coerced statements and fruits thereof, or only those that came from that particular defendant? Will coerced statements from others be allowed, and if so to what degree? What about the fruit of coercion? Once you have tortured an individual, how do you not term any information obtained while he is still detained subsequent to that torture to not be the product of coercion? The reliance on "clean teams" and/or regular interrogators subsequent to torture to sanitize the proceedings is a joke. It is crystal clear that the Obama Administration is desirous of sliding in a lot of evidence this way, it is why they have fallen back onto the tribunals.

This idea of evidence scrubbed clean of its torture taint reminds me of Binyam Mohamed’s interview with the Daily Mail only two months ago (it already seems like an eternity):

[Binyam Mohamed] reached Guantanamo in September 2004.

There, the interrogations continued but there had been another shift.

He says: ‘They said they were worried I would tell the court that I had only confessed through torture. They said now they needed me to say it freely.

‘We called them the clean team, they wanted to say they had got this stuff from a clean interrogation.’

bmaz continues:

The rules would "tighten the admissibility of hearsay testimony". Well, as stated above, this is not the case in the least; in fact, the rules are specifically designed to allow for wide ranging admissibility of hearsay. Again, that is the whole purpose here. The use of "hearsay" here is going to be designed to protect sources and means, conceal identities of the agents of torture and rendition and allow for selective use of classified information without challenge. In short it is nothing but a scam to deny the defendant the opportunity to confront and cross-examine his accusers and the evidence propounded against him; the very principle that is the bedrock of minimal due process and fundamental fairness.

The rules would "allow detainees greater freedom to choose their attorneys". You've got to be kidding me. Seriously? What a load of dung. The Obama Administration has proved themselves every bit as obstreperous in relation to allowing effective assistance of acceptable counsel to the detainees as the Bush/Cheney crew was, witness the dogged determination to remove Kuebler in the Khadr case. How, pray tell, are detainees that have been locked up in the hell hole of Guantanamo for five plus years, tortured, isolated, feared up, egoed down, repeatedly told that any lawyer they speak to is an imperial American spy out to get them etc. going to meaningfully participate in obtaining counsel of their choice? And that is before you get to the fact that the US government has extremely narrow acceptability criteria for attorneys that are even able to be contemplated for participation in the tribunals.

I don’t think, however, that the resurrection of the military commissions is a manifestation of laziness on Obama’s part. Nor is it a failure of leadership, per se. The Military Commissions are a constituent part of the torture program which, even now, is not dismantled, and continues in somewhat attenuated form as part of the Army Field Manual. It is also part of the cover-up of the previous torture program, allowing for the use of torture evidence without the political explosion that would take place by having to release or acquit “terrorists” (really “accused terrorists,” but who cavils about such things in our modern America anymore?) because the evidence was tainted by torture, and therefore inadmissible.

All signs point to the fact that when it comes to national security and military matters, Obama is compliant to the wishes of the Pentagon, that he has no real policy of his own. For that matter, has Obama ever rejected the Bush-era 2002 document, The National Security Strategy of the United States of America, which famously put forth the current U.S. doctrine of pre-emptive war and world U.S. military supremacy? If he did, I missed it somehow. But then, there is a “process”:

By law, Obama is required to submit a comprehensive national security strategy report within 150 days of taking office. A Defense Department briefing slide reviewed by Inside the Pentagon suggests the new team might develop high-level planning guidance next spring, followed by a new national security strategy next summer. In early 2010, the Obama team’s first QDR report would be issued, along with a National Defense Strategy and National Military Strategy, according to the slide.

If the new proposal for military commissions hangs true, then I think we are getting a sneak peek at the politics that will drive the Obama's new National Security Strategy report, and I don’t expect a big difference from what we have seen, at least not when it comes to the "Global War on Terror."

Firedoglake Picks Up Army Field Manual Torture Story

Originally posted at Daily Kos

I was very grateful to see bmaz over at Firedoglake take up an issue I have been pushing very much at Daily Kos and elsewhere for the past few years. Really, my first big support on my opposition to using the Army Field Manual, as written, as a "single standard" for interrogations by the Pentagon and CIA, was by DKos front-pager Meteor Blades, picking up a story published by AlterNet, who also supported this story..

My objective in researching and reporting on the AFM issue was to change the public discourse about it, especially as Democrats had decided that the AFM was the perfect counterweight to the CIA's "enhanced interrogation methods." It was John McCain's idea to have the Pentagon and CIA hold to the AFM standards. But then Rumsfeld's office (or someone) ran an end run around him, rewrote the AFM, inserted techniques that amounted to psychological torture, and then battled with opponents over it for months, until finally the AFM was published the way Rumsfeld and his lieutenant, Stephen Cambone, wanted it.

Whatever the AFM was supposed to be, by September 2006 it wasn't that anymore, and not the press, or McCain, or even any bloggers were talking about it. Apparently there was an opposition from within the military, including military attorneys, and even some high officers, but they weren't going public with it, except to leak to the press. After September 2006, even those leaks stopped, possibly due to the political cave-in that was the passing of the Military Commissions Act.

There were two exceptions I was aware of, and one of them was myself. The other was Physicians for Human Rights, who opposed Appendix M from the beginning.

What is Appendix M? It is an addition to the Army Field Manual that allows for special interrogation techniques to be used against so-called "unlawful enemy combatants," such as the administration labeled the detainees at Guantanamo. In reality, the special techniques allow use of isolation/solitary confinement, sleep deprivation, sensory deprivation, and arguably, other procedures similar to Guantanamo's hated "frequent flyer" torture program. As a result of the inclusion of these abusive technqiues, and others, I and others have stated that the AFM fails to meet the requirements of the Geneva conventions, the UN Convention Against Torture, the War Crimes Act, and other laws and treaties.

The AFM, as rewritten, includes problematic procedures even outside of Appendix M, including a rewrite of its use of the dubious technique of "Fear Up." Whereas in the earlier version of the AFM "Fear Up" allowed exploitation of the fear a prisoner might feel upon incarceration, the new version, which is in the main section of the manual, not Appendix M, allowed for the creation of "new" fears. The change was included in a clause of only a few words. In many ways, the AFM inclusion of torture is a classic case of the devil being in the details, or in the fine print, in this case.

bmaz's article picks up where mine left off by tying the kind of treatment advocated by the AFM to the torture endured by Mohammad al-Qahtani, otherwise known as Prisoner 063, whose interrogation logs made a sensational splash when published by Time Magazine a few years ago. The military interrogation of al-Qahtani amounted to torture, Susan Crawford, the convening authority to the military commissions, admitted to Bob Woodward in a bombshell interview the other day in the Washington Post.

Noting how Crawford emphasized the combination of interrogation techniques, most of them similar to those laid out in the current AFM's Appendix M, bmaz noted:

Crawford has exposed to bright sunlight the lie that is Barack Obama's, and other politicians', simple minded reliance on the Army Field Manual as cover for their torture reform credentials. Interrogators can stay completely within the Army manual and still be engaging in clear, unequivocal torture under national and international norms, laws and conventions....

The Army Field Manual provisions, especially with those pesky footnotes like "Appendix M", leave a wide open path for torture. And this is exactly what Susan Crawford directly admitted to Bob Woodward. This is a significant problem, the very torture, and modalities thereof, that are so abhorrent are about to be ratified and enshrined into the ethos of the new Obama Administration. What is worse is that the media and the country as a whole are biting off on the proposition that the torture regime is being slain in the process, and that is simply not the case.

bmaz notes that better people are soon to inhabit some of the posts within the Defense Department and other governmental agencies, and that they want to help change the former illegal policies. But he notes that issues like the current Army Field Manual and its Appendix M stand in the way of making these changes, and calls, as I do, for its removal.

It is very difficult to affect public discourse when the bulk of the mainstream media, politicians, human rights agencies, and even big-time political bloggers keep silent. To be honest, it makes one doubt one's sanity at times. That's why I want to give a big thanks of appreciation to bmaz (and the FDL crew) and Meteor Blades, for helping to push this issue forward. There are others behind the scenes who I know have supported this, and have kept me going, and I am very grateful to them, as well.

The AFM is only one piece of the larger picture regarding the torture project undertaken by the Bush administration, and it may not even be the most important piece. But I think the background story behind it may lead us to some very interesting places. And then, for the sake of those detainees currently held by U.S. forces in Guantanamo, Baghram, and U.S. prisons in Iraq and Afghanistan, not to mention CIA "black site" prisons and prison ships, I could not stay silent when right in front of my eyes I saw the implementation of a torture program, albeit without some of the more unsavory and infamous techniques, like waterboarding and sexual humiliation. Probably, it was the elimination of these that kept many from seeing for a long time exactly what was actually wrong with the Army Field Manual.

I hope you are motivated to go read bmaz's excellent piece, and not because I am prominently mentioned in it. I think bmaz did an excellent job of drawing out the current significance of the issue and applying it to an important breaking story. That's what the truth does for you: it takes disparate pieces of information and throws a light upon it that draws out its true significance.

Onward and upward to prosecutions of those involved in the planning and implementation of torture by United States officials!