A resolution on European investigations into the CIA’s rendition program will be debated next week at the Annual Session of the OSCE Parliamentary Assembly, a 320-member inter-parliamentary organization spanning North America, Europe and Central Asia. The resolution is authored by British parliamentarian Tony Lloyd, who co-chairs the UK All-Party Parliamentary Group on Extraordinary Rendition.
Welcoming investigations being carried out in Poland and the United Kingdom, the resolution calls on other governments in the OSCE to fulfill their obligations to investigate their own roles in the program and for the United States to co-operate with these European investigations.
The measure criticizes the Obama administration’s stonewalling of the Polish and British probes, and insists that the U.S. release all pertinent information to investigators regarding rendition, torture and the use of so-called “black sites.”
Further, it condemns the the prosecution that U.S. authorities have launched against former CIA agent John Kiriakou, who is accused of providing journalists details regarding the capture of Abu Zubaydah, an al-Qaeda suspect who is said to have been tortured in a secret CIA prison in Poland. Zubaydah is one of two individuals granted “victim status” by prosecutors in Warsaw.
Members will debate and vote on the resolution at the Assembly’s Annual Session in Monaco on 5-9 July.
“Six years after the CIA’s secret prisons in Europe came to light, there is yet to be a full accounting of what the program entailed, who facilitated it and what laws may have been broken,” said Lloyd. “The OSCE Parliamentary Assembly and many international organizations demanded official probes into this programme in 2006, but even as some of us try to investigate, we are stymied by a lack of co-operation by U.S. authorities.”
Lloyd co-chairs the UK All-Party Parliamentary Group on Extraordinary Rendition, an investigative body which comprises about 50 MPs and peers. While investigating British complicity in rendition and torture, the group submitted information requests to U.S. intelligence agencies. U.S. authorities denied the requests, citing the U.S. Freedom of Information Act exemptions for requests by “foreign government entities.”
“I hope this resolution spurs greater transparency from the U.S. government and reminds OSCE participating States of their obligation to investigate possible violations of the law regarding this program,” said Lloyd.
The OSCE PA’s 2006 Brussels Declaration called on participating States to investigate whether their territory was used to assist the CIA in secretly transporting detainees to countries where they may be tortured.
The resolution to be debated in Monaco reiterates that all OSCE participating States – including the U.S. – have binding obligations under international law to investigate allegations of torture and restates its previous call to thoroughly probe allegations that their territory has been used to assist the CIA’s extraordinary rendition program.
The debate on the resolution comes just after President Obama renewed the U.S. pledge to work with the international community toward ending torture. Yesterday, the White House put out a statement on International Day in Support of Victims of Torture, stating that “the United States rejects torture as unlawful, counter to our values, and inconsistent with the universal rights and freedoms that should be enjoyed by all men, women, and children wherever they live.”
“In keeping with our laws, principles, and the Convention Against Torture,” says the statement,
the United States continues to work with our international partners to end torture. With the development and enforcement of strong domestic laws, effective training of law enforcement and military personnel, and systematic review of interrogation, detention, and transfer practices, together we can turn over to our children a world in which no justification for torture is accepted. We will also continue to support efforts like the United Nations Voluntary Fund for Victims of Torture.
As the Center for Constitutional Rights pointed out, however, the statement “comes after three years of continued efforts by the Obama administration to block any investigation or accountability for U.S. torture practices.”
The OSCE PA resolution, signed by 27 members of parliament from 14 countries, also points out that “without proper co-operation from U.S. officials, a full accounting of European governments’ complicity” in the CIA’s rendition and torture program may not be possible.
In her opening statement to the Human Rights Council’s 20th Special Session yesterday, UN High Commissioner for Human Rights Navi Pillay criticized the use of unmanned aerial drones by the United States, noting considerable doubt that victims of the strikes “are combatants or directly participating in hostilities.”
Describing her recent visit to Pakistan, which has been bombed hundreds of times by U.S. drones since 2004, Pillay noted that the attacks “raise questions about compliance with distinction and proportionality.”
“I also expressed serious concern over the continuing use of armed drones for targeted attacks,” she said,
in particular because it is unclear that all persons targeted are combatants or directly participating in hostilities. The Secretary-General has expressed concern about the lack of transparency on the circumstances in which drones are used, noting that these attacks raise questions about compliance with distinction and proportionality. I remind States of their international obligation to take all necessary precautions to ensure that attacks comply with international law. I urge them to conduct investigations that are transparent, credible and independent, and provide victims with effective remedies.
According to the Bureau of Investigative Journalism (BIJ), which has been closely monitoring the U.S. drone wars in Pakistan, Yemen and Somalia, U.S. drones have attacked Pakistani territory 332 times over the past eight years. The sorties drastically increased under the presidency of Barack Obama, with 280 attacks launched since January 2009.
The total number of casualties range from 2,486 to 3,188, with civilians accounting for 482 to 832 of those deaths. The total number of children reported killed is 175 and injuries range from 1,192 to 1,308. The BIJ notes that “more than 20 civilians have also been attacked in deliberate strikes on funerals and mourners.”
The New York Times reported last month that Obama has now redefined concepts of “civilians” and “militants” in order to minimize unfavorable news about innocent victims of the drone strikes.
“Obama embraced a disputed method for counting civilian casualties that did little to box him in,” reported the Times. “It in effect counts all military-age males in a strike zone as combatants, according to several administration officials, unless there is explicit intelligence posthumously proving them innocent.”
In response to the New York Times revelations, the U.S. Justice Department has launched investigations of possible leakers in the administration may have provided this information to the press, in order to ensure that these sorts of secrets never see the light of day.
Tomorrow, the same day that the Senate Committee on Foreign Relations is scheduled to vote on whether to impose sanctions on Russian officials for rights violations in Russian prisons, the Senate Subcommittee on the Constitution, Civil Rights and Human Rights is taking up an issue closer to home: the widespread use of prolonged solitary confinement in U.S. prisons.
The hearing, entitled “Reassessing Solitary Confinement: The Human Rights, Fiscal and Public Safety Consequences,” is scheduled to include several witnesses, including prison officials, legal advocates and a former death row prisoner who spent years in solitary confinement for a crime he did not commit.
The Institute for Southern Studies notes that the hearing “comes on the heels of widespread prisoner hunger strikes that have made the use of solitary confinement a central issue.” Last year, a prisoner hunger strike at California’s Pelican Bay State Prison prompted a state-wide strike that gained international notoriety.
It also follows some rather outspoken criticism from the international community on the subject of solitary confinement, with Juan Mendez, the UN Special Rapporteur on Torture, stating recently that lengthy solitary confinement can cause serious mental and physical damage and should be considered torture.
Mendez has proposed that all solitary confinement longer than 15 days be outlawed.
“It can amount to torture or cruel, inhuman and degrading treatment or punishment when used as a punishment, during pretrial detention, indefinitely or for a prolonged period, for persons with mental disabilities or juveniles,” he said.
Mendez has also specifically criticized the United States for its mistreatment of world-renowned prisoner of conscience Bradley Manning, the accused whistleblower who spent 11 months in solitary confinement at a military brig in Virginia and is now awaiting trial at Ft. Leavenworth, Kansas.
Mendez has noted that Manning’s treatment violated international law, including the International Covenant on Civil and Political Rights and the Convention against Torture.
As Mendez told the Guardian newspaper:
I conclude that the 11 months under conditions of solitary confinement (regardless of the name given to his regime by the prison authorities) constitutes at a minimum cruel, inhuman and degrading treatment in violation of article 16 of the convention against torture. If the effects in regards to pain and suffering inflicted on Manning were more severe, they could constitute torture.
In an open letter to President Obama, members of Congress and Pentagon officials last November, members of the European Parliament expressed concern that “Manning has been subjected to prolonged solitary confinement and other abusive treatment tantamount to torture.”
Amnesty International, the ACLU and other human rights organizations have also taken up the issue of solitary confinement in U.S. prisons. Amnesty has launched a campaign specifically on behalf of the Angola 3, who have spent decades in solitary confinement in Louisiana.
“For nearly 40 years,” notes Amnesty,
Albert Woodfox and Herman Wallace have been held in solitary confinement, mostly in the Louisiana State Penitentiary (known as Angola prison). Albert Woodfox and Herman Wallace, originally convicted of unrelated cases of armed robbery, were convicted of the murder of a prison guard in 1972. Robert King, locked up for robbery, was also convicted of murder once he was in the prison. The most fortunate of the so-called “Angola 3,” his conviction was overturned in 2001, and he was released after 29 years of isolation.
Throughout their prolonged incarceration in Closed Cell Restriction (CCR) Woodfox and Wallace have endured very restrictive conditions, including periods of 23 hour cell confinement. Louisiana prison authorities have failed to meaningfully review the men’s continued isolation, simply rubberstamping the original decision to confine the men in CCR. Decades of solitary confinement have had a clear psychological effect on the men, and they both suffer from serious health problems caused or made worse by their years of close confinement.
In April, Amnesty International submitted a petition to the governor of Louisiana with over 67,000 signatures from individuals in 125 countries demanding that Albert Woodfox and Herman Wallace be removed from long-term isolation. The governor, however, refused to meet with the delegation.
The ACLU has initiated a campaign to end prolonged solitary confinement in U.S. prisons altogether, noting that it “is cruel and inhumane, costs too much and does nothing to make society safer.”
Studies show there are an estimated 20,000-25,000 individuals currently being held in solitary confinement in the United States.
The Senate hearing tomorrow, to be chaired by Sen. Dick Durbin (D-Ill.), will examine the psychological and psychiatric impact on prisoners during and after their isolation, the higher costs of running solitary housing units, the human rights issues surrounding the use of isolation, and successful state reforms in this area.
Moscow is reacting angrily to legislation moving through the U.S. Congress that would impose travel bans and other punitive measures on Russian officials deemed responsible for the death of Sergei Magnitsky, a lawyer who died in a Russian prison in November 2009.
Russian Deputy Foreign Minister Sergei Ryabkov said on Friday that Moscow will introduce a number of tough retaliatory measures if Congress passes the so-called Magnitsky List bill, potentially blacklisting several dozen Russian officials from entering the United States.
“If this outrageous move takes place, Moscow’s reaction will be complex, multidimensional and really tough,” Ryabkov said, adding that Moscow hoped “the worst thing [the adoption of the Magnitsky list] will not happen.”
The legislation seeks to promote rule of law in Russia by punishing those responsible for the death of Magnitsky, a Russian lawyer who had exposed officially sanctioned tax fraud and was imprisoned at the Butyrka prison in Moscow in November 2008. He was held for 358 days without trial, and a week before he would have had to have been released if he were not brought to trial, Magnitsky died for reasons attributed first by prison officials as a “rupture to the abdominal membrane” and later to heart attack.
However, a report released in late 2009 by the Public Oversight Commission, a Moscow-based nongovernmental organization, found that after complaining of worsening stomach pain for five days, Magnitsky had been denied treatment in part because investigators were pressing him to testify in a high-profile tax evasion case against Hermitage Capital Management, an investment company that had fallen out of favor with Russian officials.
His death led President Dmitri Medvedev to order a criminal investigation and dismiss as many as 20 top prison officials. The case has become an international cause célèbre, and the U.S. Congress took up the cause with the Magnitsky Rule of Law Accountability Act, which seeks to impose visa bans and asset freezes on the Russian officials involved in Magnitsky’s death, as well as for other human rights abuses in Russia.
The House passed its version of the bill on June 7, and the Senate Committee on Foreign Relations is scheduled to vote on its version of the bill on June 19.
Besides the outrage the legislation is causing in Moscow and the likely repercussions it will have on bilateral U.S.-Russian relations, Congress’s aggressiveness on this issue is also a reminder of its lack of any comparable action seeking accountability for U.S. officials who have sanctioned torture or indefinite detention in the United States or American prisons abroad.
The bill, for example, deplores the fact that Magnitsky was held for “nearly 12 full months … without trial in detention,” which indeed would be a cause for concern, were it not so laughable coming from a body – the U.S. Congress – that has just authorized the indefinite detention of even U.S. citizens with its adoption of the 2012 National Defense Authorization Act.
Section 1021 of the NDAA “affirms” that the authority of the president includes the power to detain, via the United States military, any person “who was part of or substantially supported al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners”, and anyone who commits a “belligerent act” against the U.S. or its coalition allies in aid of such enemy forces, under the law of war, “without trial, until the end of the hostilities.”
So, Congress in one breath authorizes indefinite detention without trial in the United States, and then deplores it when it takes place in Russia.
The Magnitsky bill further reminds Russia of its obligations as a member of the United Nations, the Organization for Security and Co-operation in Europe, and as a party to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, and the International Covenant on Civil and Political Rights.
The United States, of course, is also a party to these conventions and has been routinely flouting them for years through its policies of torture and indefinite detention. The U.S. has held thousands of detainees without charge or trial for years on end, in Iraq, Afghanistan, secret prisons in Europe and at Guantanamo Bay. Non-citizens and citizens alike have been held without the benefit of a day in court, in conditions often amounting to torture, according to legal experts and UN officials.
Jose Padilla, for example, is a U.S. citizen who was held for nearly four years at a naval brig in South Carolina without charge as an “enemy combatant.” According to his attorneys, Padilla was routinely mistreated and abused in ways designed to cause pain, anguish, depression and ultimately the loss of will to live.
“The extended torture visited upon Mr. Padilla has left him damaged, both mentally and physically,” said a court filing by Orlando do Campo, one of Padilla’s lawyers. The filing says that Padilla was subjected to sleep deprivation and extremes of heat and cold, and forced to stand for extended periods in painful “stress positions.”
His lawyers have also claimed that Padilla was forced to take LSD and PCP to act as truth serums during his interrogations.
Forensic psychiatrist Dr. Angela Hegarty, who interviewed Jose Padilla for 22 hours to determine the state of his mental health, said in 2007, “What happened at the brig was essentially the destruction of a human being’s mind. That’s what happened at the brig. His personality was deconstructed and reformed.”
After four years of this abuse, Padilla was finally charged and brought to court – on charges that were unrelated to the original accusations made against him.
Another American citizen being denied his rights under U.S. and international law is accused whistleblower Bradley Manning, now being held at Ft. Leavenworth, Kansas. He’s been in custody for nearly 800 days in pre-trial confinement.
More than 50 members of the European Parliament wrote an open letter to President Obama, members of Congress and top officials at the Pentagon last November, expressing concern “Manning has been subjected to prolonged solitary confinement and other abusive treatment tantamount to torture.” They noted “that the US government has denied the request of the United Nations special rapporteur on torture to meet privately with Mr Manning in order to conduct an investigation of his treatment by US military authorities.”
Some might draw a distinction between these cases and that of Sergei Magnitsky by pointing out that while Manning and Padilla may have been denied due process rights including the right to a speedy trial, at least they have not been killed in custody. Of course, this argument would ignore the fact that many people have indeed died in U.S. custody, in some cases likely tortured to death.
According to government data provided to the Associated Press, at least 108 people have died in American custody in Iraq and Afghanistan, most of them violently. However, only a quarter of those deaths have been investigated as possible abuse by U.S. personnel.
As the AP reported in Feb. 2009:
The figure, far higher than any previously disclosed, includes cases investigated by the Army, Navy, CIA and Justice Department. Some 65,000 prisoners have been taken during the U.S.-led wars in Iraq and Afghanistan, although most have been freed.
The Pentagon has never provided comprehensive information on how many prisoners taken during the U.S. wars in Iraq and Afghanistan have died, and the 108 figure is based on information supplied by Army, Navy and other government officials.
“Despite the military’s own reports of deaths and abuses of detainees in U.S. custody, it is astonishing that our government can still pretend that what is happening is the work of a few rogue soldiers,” said ACLU Executive Director Anthony Romero in response to the revelation. “No one at the highest levels of our government has yet been held accountable for the torture and abuse, and that is unacceptable.”
Constitutional lawyer and Salon.com blogger Glenn Greenwald noted that the revelation proved that “the unstated premise of every torture debate — that it was safely applied to a handful of detainees — is false.”
Over the course of the nearly 11 years of the war on terror, disclosures have steadily emerged of official lawlessness at the highest levels of the U.S. government, with high-ranking officials authorizing torture, indefinite detention, and assassinations. Human rights organizations have made numerous appeals to various institutions of the U.S. government, including the White House, Department of Justice and Congress to rein in these abuses.
One of the more comprehensive efforts was a 107-page report issued by Human Rights Watch a year ago, entitled “Getting Away with Torture: The Bush Administration and Mistreatment of Detainees.” The report documented some of the most clear-cut examples of egregious human rights violations sanctioned by the administration of George W. Bush and the corresponding evisceration of international law by U.S. officials.
HRW criticized policy decisions that “essentially reinterpreted the Geneva Conventions to suit the administration’s purposes.” The Bush administration “downgraded existing international law, which must be followed, to the level of ‘principles,’ which only should be followed.”
The rights group reminded U.S. officials that “all persons detained in connection with an armed conflict … are still legally entitled to basic protections under international law.”
“Consistent with its obligations under the Convention against Torture,” HRW said, “the US government should ensure that victims of torture obtain redress, which may include providing victims with compensation where warranted outside of the judicial context.”
The group specifically recommended that Congress “create an independent, nonpartisan commission to investigate the mistreatment of detainees in US custody since September 11, 2001, including torture, enforced disappearance, and rendition to torture.”
Such a commission should have full subpoena power and compel the production of evidence, as well as be empowered to recommend the creation of a special prosecutor to investigate possible criminal offenses.
Needless to say, Congress has not taken up this cause as recommended by HRW and other human rights organizations. Now, however, the human rights crusaders in Congress are doing everything within their power to hold accountable those who may have violated the rights of Sergei Magnitsky in Russia.
The Magnitsky bill moving through Congress includes some controversial measures that would seem to bypass the existing legal framework for prosecuting individuals accused of a crime, and would empower the U.S. Secretary of State to essentially serve as judge, jury and prosecutor.
The legislation empowers “the Secretary of State, in consultation with the Secretary of the Treasury, [to] publish a list of each person the Secretary of State has reason to believe … is responsible for the detention, abuse, or death of Sergei Magnitsky.”
Anyone identified by the Secretary of State would have travel restrictions imposed and assets frozen in the United States. Similar Magnitsky-related legislation is pending in the parliaments of U.S. allies Canada, Netherlands, Poland and Britain.
Whether the U.S. Congress is actually genuine in its concern over Magnitsky’s death or more generally the rule of law in Russia, or whether it is just using the opportunity to poke its adversary Russia in the eye, it might want to remember that these measures being proposed by the Magnitsky bill could just as easily be used against the United States.
Already, Russia has responded by barring 11 serving and former U.S. administration officials for human rights abuses at facilities including Guantanamo Bay and the Abu Ghraib prison in Iraq. President Vladimir Putin’s top foreign policy adviser, Yuri Ushakov, said in an e-mailed statement: “These people are linked to high-profile human rights abuses, including torture and abuse of detainees in special prisons set up by the Pentagon and the Central Intelligence Agency in Guantanamo, Bagram in Afghanistan and Abu Ghraib in Iraq.”
Someday, perhaps, if Congress continues failing to live to its responsibilities to promote the rule of law at home, a broader alliance of nations could get together to impose sanctions on U.S. officials responsible for the abuse of Bradley Manning, Jose Padilla, or any of the 100-plus individuals who have been tortured to death during the war on terror.
Journalism is printing what someone else does not want printed: everything else is public relations. ― George Orwell
The U.S. Justice Department has just launched two official probes in relation to recent revelations that President Obama has authorized clandestine cyberattacks against Iran and personally oversees a secretive “kill list” that targets suspected terrorists – including U.S. citizens – for assassination.
But rather than focusing on possible violations of the law related to the programs themselves, the Justice Department is investigating who might have provided this sensitive information to the press.
Responding to Republican complaints that the Obama administration has intentionally leaked details about the programs in order to bolster Barack Obama’s “national security credentials” in an election year, Attorney General Eric Holder has assigned Ronald Machen, the U.S. attorney for the District of Columbia, and Rod Rosenstein, the U.S. attorney for the District of Maryland, to direct separate investigations that are being conducted by the FBI regarding the leaks.
“The unauthorized disclosure of classified information can compromise the security of this country and all Americans, and it will not be tolerated,” Holder said, adding that he was confident the prosecutors would follow the facts and evidence wherever they led.
President Obama weighed in on the controversy by stating that his administration has “zero tolerance” for such leaks and that there would also be an internal administration probe.
“We have mechanisms in place where if we can root out folks who have leaked, they will suffer consequences,” the president said. “In some cases, it’s criminal. These are criminal acts when they release information like this. And we will conduct thorough investigations, as we have in the past.”
Republicans, however, are not satisfied with the promised investigations, and are demanding the appointment of a special counsel, arguing that using White House-appointed attorneys could prevent a thorough investigation.
Sen. John McCain, R-Ariz., on Tuesday introduced a Senate resolution calling for a special counsel to investigate the alleged leaks.
“I can’t think of any time that I have seen such breaches of ongoing national security programs as has been the case here,” McCain said. “Here we are with a very serious breach of national security – in the view of some, the most serious in recent history, and it clearly cries out for the appointment of a special counsel.”
With criticism of the actual subject of the leaks — the questionable assassination program being directed from the White House — paling in comparison to the outrage over the release of these state secrets, it is difficult to imagine a more pointed example of the state of official lawlessness that has come to characterize U.S. foreign and domestic policy.
Much like the prosecutions of accused whistleblowers Bradley Manning and John Kiriakou – who have allegedly provided journalists details on a host of official crimes committed by the U.S. government, including secret bombings, spying on international diplomats and torture – the probes into the recent Obama administration leaks demonstrate once again that in the United States, it is only a prosecutable offense to expose official crimes, not to actually commit them.
In the case of the drone program exposé, the New York Times on May 29 revealed many sordid details of secretive meetings in the White House – dubbed “Terror Tuesdays” by the administration – in which President Obama personally authorized the assassinations of “suspected militants” far from any battlefield in countries such as Yemen and Pakistan.
In one of the more distressing stories described by the Times, Obama ordered the killing of a group of “Qaeda suspects in Yemen with Western ties.” The victims included several Americans, “including a girl who looked even younger than her 17 years.”
The article also provided new insight into the decision-making process that led to the assassination of U.S. citizen Anwar al-Awlaki, who allegedly provided the inspiration for the killing of 13 people at Fort Hood, Tex. by Maj. Nidal Malik Hasan in 2009.
The motives for the Fort Hood shootings were widely reported at the time of the crime, including by the Times, which on Nov. 5, 2009, described a tormented soldier “who began having second thoughts about a military career a few years ago after other soldiers harassed him for being a Muslim.”
Hasan had “counseled scores of returning soldiers with post-traumatic stress disorder, first at Walter Reed Army Medical Center in Washington and more recently at Fort Hood” and “knew all too well the terrifying realities of war,” the Times reported in 2009. He was terrified of being deployed to Iraq or Afghanistan and apparently snapped, killing 13 fellow soldiers in the process.
Ultimately, however, culpability for the Fort Hood shootings fell not on a culture of despair in an Army plagued by long deployments in the never-ending “war on terror,” but on the “fiery sermons” of al-Awlaki, who was also blamed for providing the inspiration to the attempted Christmas Day 2009 bombing of an airliner over Detroit.
“Awlaki’s calls for more attacks,” reported the Times in its May 29 article, “presented Mr. Obama with an urgent question: Could he order the targeted killing of an American citizen, in a country with which the United States was not at war, in secret and without the benefit of a trial?”
“This is an easy one,” Obama reportedly said during the meeting. He gave his approval to the assassination based on an Office of Legal Counsel memorandum which argued that constitutional protections of “due process” were satisfied by the secret deliberations taking place in the White House.
Awlaki was killed in September 2011 along with Samir Khan, another U.S. citizen who was not on the target list but was traveling with him. Two weeks later, another drone attack killed Awlaki’s son, 16-year-old Abdulrahman al-Awlaki, a U.S. citizen born in Denver, along with his 17-year-old cousin and seven others.
The Times also revealed that in Pakistan, Obama has approved not only “personality” strikes aimed at identified, high-value terrorists, but “signature” strikes that target suspicious compounds in areas allegedly controlled by militants.
“Signature strikes in Pakistan were killing a large number of terrorist suspects, even when C.I.A. analysts were not certain beforehand of their presence,” reported the Times.
Now, with newly defined rules authorized by the president, the Defense Department can target suspects whose names they do not know, the Times reports. The drone attacks have been given a new name: TADS, for Terrorist Attack Disruption Strikes.
“But the details are a closely guarded secret — part of a pattern for a president who came into office promising transparency,” notes the Times.
In addition to broadening the rules of engagement to include “signature” strikes on individuals whose identities are unknown, Obama has also redefined concepts “civilians” and “militants” in order to minimize unfavorable news about innocent victims of the drone strikes. The semantic change was apparently made in response to early blunders in the drone assassination program.
In early 2009, just days after taking office, the president was notified that the first strike under his administration had killed a number of innocent Pakistanis.
The Pakistan strike killed between seven and 12 people, reported initially as “foreign militants.” In a later report personally given to Obama by his then-CIA chief General Hayden, the CIA admitted missing its high-value target and killing “five al Qaeda militants,” but made no mention of civilian deaths. However, Newsweek reported in May 2012 that the President was told that civilians had died almost immediately.
The New York Times article sheds light on Obama’s response to this incident, which was essentially to change the way that civilian deaths were counted (or not counted) in relation to the drone strikes.
“Obama embraced a disputed method for counting civilian casualties that did little to box him in,” reported the Times. “It in effect counts all military-age males in a strike zone as combatants, according to several administration officials, unless there is explicit intelligence posthumously proving them innocent.”
A U.S. official explained the macabre logic to the Times: “Al Qaeda is an insular, paranoid organization — innocent neighbors don’t hitchhike rides in the back of trucks headed for the border with guns and bombs.”
So, according to this logic, which is now official U.S. policy, anyone near a designated target of a U.S. drone strike is a “legitimate” target simply by virtue of being there, regardless of actual guilt or innocence of any particular offense against the United States. In other words, by definition, anyone killed by the United States government is considered a “militant,” unless “explicit intelligence” is produced after their deaths “proving them innocent.”
This controversial method of counting civilian casualties “may partly explain the official claims of extraordinarily low collateral deaths,” notes the Times.
The C.I.A. accounting has so troubled some administration officials outside the agency that they have brought their concerns to the White House. One called it “guilt by association” that has led to “deceptive” estimates of civilian casualties.
“It bothers me when they say there were seven guys, so they must all be militants,” the official said. “They count the corpses and they’re not really sure who they are.”
Following the New York Times report, Gabor Rona, international legal director at Human Rights First and former legal adviser at the International Committee of the Red Cross, expressed astonishment over the radical legal principles being advanced by the Obama administration.
“We have never before heard anything quite like the idea that if you have to be in a certain place and you happen to be of a certain age, that in and of itself can make you targetable,” Rona said.
Human Rights First asked Obama to clarify two points of international law: First, that his administration does not permit the targeting of all members of a terrorist group with which the U.S. claims to be at war; and, second, that it does not permit the targeting of individuals merely because they are seen to be associating with members of a terrorist group.
The legal issues – both on the domestic and international levels – related to these recent revelations are obviously substantial, but to Attorney General Eric Holder, appear to be quite simple.
In a speech at Northwestern University School of Law on March 5, Holder offered a legal defense of the drone assassination program, arguing that although the decisions for who is targeted are made entirely in secret, they nevertheless follows the Constitution’s due process requirements.
“Some have argued that the President is required to get permission from a federal court before taking action against a United States citizen who is a senior operational leader of al Qaeda or associated forces,” Holder said. “This is simply not accurate. ‘Due process’ and ‘judicial process’ are not one and the same, particularly when it comes to national security. The Constitution guarantees due process, not judicial process.”
While acknowledging that “it is preferable to capture suspected terrorists where feasible,” Holder claimed “that there are instances where our government has the clear authority – and, I would argue, the responsibility – to defend the United States through the appropriate and lawful use of lethal force.”
“This principle has long been established under both U.S. and international law,” he said. Citing the president’s wartime powers purportedly authorized by Congress in 2001, he elaborated on the corresponding authority that supposedly exists on the international level:
Because the United States is in an armed conflict, we are authorized to take action against enemy belligerents under international law. The Constitution empowers the President to protect the nation from any imminent threat of violent attack. And international law recognizes the inherent right of national self-defense. None of this is changed by the fact that we are not in a conventional war.
This claim, however, ignores longstanding complaints from the international community over the United States’ prosecution of the war on terror in general, and the drone assassination program in particular.
A 2010 United Nations report stated that a targeted killing outside of an actual battlefield “is almost never likely to be legal.” It rejected “pre-emptive self-defense” as a justification for killing terrorism suspects far from combat zones.
“This expansive and open-ended interpretation of the right to self-defense goes a long way towards destroying the prohibition on the use of armed force contained in the U.N. Charter,” said Philip Alston, the UN’s Special Rapporteur on extrajudicial, summary or arbitrary executions, in June 2010. “If invoked by other states, in pursuit of those they deem to be terrorists and to have attacked them, it would cause chaos.”
More recently, UN High Commissioner for Human Rights Navi Pillay has called for a UN investigation into U.S. drone strikes in Pakistan, questioning their legality and saying they kill innocent civilians.
Pillay made the remarks last Thursday at the end of a four-day visit to Pakistan, where U.S. drone strikes have on average targeted Islamist militants once every four days since Obama took office.
“Drone attacks do raise serious questions about compliance with international law,” Pillay told a news conference in Islamabad.
“The principle of distinction and proportionality and ensuring accountability for any failure to comply with international law is also difficult when drone attacks are conducted outside the military chain of command and beyond effective and transparent mechanisms of civilian or military control,” she said.
She added that the attacks qualify as “indiscriminate killings” and are “human rights violations.”
Global public opinion appears to be on Pillay’s side, with majorities in 17 out of 20 countries surveyed by the Pew Research Center disapproving of U.S. drone attacks in nations such as Pakistan, Yemen and Somalia. In a report released today, Pew notes that “there remains a widespread perception that the U.S. acts unilaterally and does not consider the interests of other countries.”
In nearly all countries, there is considerable opposition to drone strikes. The United States is the clear outlier in global public opinion, with a 62 percent majority approving of the drone assassination campaign.
The attacks appear to remain popular among Americans of all political persuasions, with 74 percent of Republicans, 60 percent of independents and 58 percent of Democrats approving of the program. This is despite the fact that they are not only isolating the U.S. from global opinion, but also pushing relations between Pakistan and the United States to an all-time low, with the Pakistani government complaining that they violate Pakistan’s sovereignty.
The Pakistani Foreign Ministry last week reiterated that “Pakistan strongly condemns these attacks.”
A statement on its website stated,
Pakistan has consistently maintained that these illegal attacks are a violation of its sovereignty and territorial integrity, and are in contravention of international law. It is our considered view that the strategic disadvantages of such attacks far outweigh their tactical advantages, and are therefore, totally counterproductive.
The U.S., for its part, has issued strong condemnations of Pakistan for failing to do enough to rein in militant activity near the Afghan border. Defense Secretary Leon Panetta alluded last week that Pakistan is to blame for continued instability in Afghanistan, essentially claiming that it is Pakistan’s fault that the U.S. cannot leave Afghanistan.
“It is difficult to achieve peace in Afghanistan as long as there is safe haven for terrorists in Pakistan,” Panetta said on a visit to the Afghan capital, Kabul.
“It is very important for Pakistan to take steps. It is an increasing concern, the issue of safe haven, and we are reaching the limits of our patience,” Reuters quoted him as saying.
As the Guardian reports,
The explicit and repeated criticism of Pakistan, after similar complaints during a visit to India, could signal US willingness to up the tempo of the drone strikes. A recent increase in strikes on insurgents in Pakistan was due in part to frustration with Islamabad, the Associated Press said, citing an unnamed senior US official.
So, as the Justice Department launches its investigation into who in the Obama administration may have provided details about this secretive program to the press, the Defense Department appears poised to launch intensified drone attacks on Pakistan – despite the vociferous protests from the Pakistani government and UN officials such as Navi Pillay.
And as the criminal investigations of White House leaks get underway, the much more serious questions of program’s legality remain unaddressed. Such is the sorry state of the rule of law in the USA.