Obama’s speech: Sidestepping key questions on Gitmo, torture and drones

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In a wide-ranging speech Thursday on U.S. counter-terrorism policies, President Obama made a number of encouraging remarks regarding respect for the rule of law and renewed promises to ensure that the United States respects international norms – especially by finally closing the Guantanamo prison camp and guaranteeing that U.S. drone warfare complies with domestic and international law.

Notably, he also pledged that “this war, like all wars, must end,” a relief to many who might be under the impression that the U.S. is in an endless state of war.

Like most Obama speeches, the president touched on many of the right notes and made pledges that most reasonable people would welcome, especially the promise that the war on terror will indeed someday come to an end. But also like most Obama speeches, it is worth weighing the lofty rhetoric against the actual record, and comparing his claims against the facts.

This is true broadly, for example, when it comes to his pledge to someday bring the war on terror to an end, considering that as Commander in Chief he is in charge of the armed forces and has ultimate authority to hasten the war’s end. It is also true more narrowly on specific issues such as his renewed pledge to close Guantanamo.

In his speech, Obama announced the appointment of a new special envoy to focus on Guantanamo transfers and called for Congress’s cooperation:

I once again call on Congress to lift the restrictions on detainee transfers from GTMO. I have asked the Department of Defense to designate a site in the United States where we can hold military commissions. I am appointing a new, senior envoy at the State Department and Defense Department whose sole responsibility will be to achieve the transfer of detainees to third countries. I am lifting the moratorium on detainee transfers to Yemen, so we can review them on a case by case basis. To the greatest extent possible, we will transfer detainees who have been cleared to go to other countries. Where appropriate, we will bring terrorists to justice in our courts and military justice system. And we will insist that judicial review be available for every detainee.

But as the Center for Constitutional Rights pointed out on Twitter, he has had ample time to do what he is now promising to do. “Obama wants to review #Guantanamo transfers on ‘case-by-case basis,’” CCR tweeted. “Didn’t he have 4yrs to do that? Over half the men were cleared yrs ago.”

CCR has long argued that Obama possesses a great deal of authority to make specific transfers and that by failing to show the needed leadership, he may be forever tarnishing his legacy. As the group put it in a statement:

The president’s stated reengagement on Guantanamo is welcome, but long overdue.  However, unless he takes immediate steps to resume transfers and ultimately close the prison, his administration will not escape the “harsh judgment” of history he anticipated in his speech.  We welcome his decision to lift the ban on transfers to Yemen, which has trapped more than half of the men at the prison.  However, we are disappointed by the president’s comment that cleared men will only be released “to the greatest extent possible.”  While more than 100 men continue to starve themselves in a principled protest for their freedom, the president’s equivocation is troubling. After eleven years of detention without charge or trial, all of the men President Obama does not intend to give fair trials should be released and reunited with their families. Anything short of that threatens to worsen a potentially deadly crisis unfolding a Guantanamo.

Amnesty International has also questioned the president’s commitment to closing Guantanamo, noting in a report released yesterday that “At the end of 2012, nearly three years after President Obama’s deadline for closure of the Guantánamo detention facility, 166 men were still held at the base, the vast majority without charge or criminal trial.”

In light of the ongoing hunger strike at Guantanamo, Amnesty has renewed its longstanding demands for the president to use his authority to close the prison camp, urging its supporters to “grab your phone and help us flood the White House with calls demanding action.”

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In its annual report on the U.S. human rights situation, Amnesty also questioned the Obama administration’s commitment to holding accountable those who broke the law in the previous administration. In a section entitled “Impunity,” Amnesty lamented:

The absence of accountability for crimes under international law committed under the administration of President George W. Bush in relation to the CIA’s programme of secret detention was further entrenched.

On 30 August, the US Attorney General announced the closure of criminal investigations into the death of two individuals in US custody outside the USA. He stated that no one would face criminal charges in relation to the deaths, believed to have occurred in Afghanistan in 2002 and Iraq in 2003. This followed the announcement in June 2011 that a “preliminary review” conducted into interrogations in the CIA programme was at an end and that, apart from in relation to the two deaths, further investigation was not warranted.

Despite this questionable record enabling torture impunity, Obama felt confident enough to brag about his record Thursday in supposedly returning the United States to the rule of law after eight lawless years of the Bush administration’s approach to the war on terror:

I believe we compromised our basic values – by using torture to interrogate our enemies, and detaining individuals in a way that ran counter to the rule of law.

After I took office, we stepped up the war against al Qaeda, but also sought to change its course. We relentlessly targeted al Qaeda’s leadership. We ended the war in Iraq, and brought nearly 150,000 troops home. We pursued a new strategy in Afghanistan, and increased our training of Afghan forces. We unequivocally banned torture, affirmed our commitment to civilian courts, worked to align our policies with the rule of law, and expanded our consultations with Congress.

While talking about his renewed interest in closing Gitmo, Obama was repeatedly interrupted by Medea Benjamin, an activist with the antiwar group Code Pink:

“Excuse me, President Obama, you are commander in chief,” Benjamin said. Rejecting his attempts to blame the failure to close Guantanamo on Congress, Benjamin shouted, “It’s you, sir!”  She admonished him to “Abide by the rule of law,” reminding him that he’s a constitutional lawyer.

To his credit, Obama stood up for her First Amendment rights and called her passion commendable. “The voice of that woman is worth paying attention to,” he said. “Obviously I do not agree with much of what she said. But these are tough issues. And the idea that we can gloss over them is wrong.”

However, glossing over the issues is precisely what Obama was doing, in some respects. During his talk on drone warfare, for example, he focused narrowly on “one instance when we targeted an American citizen: Anwar Awlaki, the chief of external operations for AQAP.”

Explaining this controversial action, Obama said,

When a U.S. citizen goes abroad to wage war against America – and is actively plotting to kill U.S. citizens; and when neither the United States, nor our partners are in a position to capture him before he carries out a plot – his citizenship should no more serve as a shield than a sniper shooting down on an innocent crowd should be protected from a swat team

That’s who Anwar Awlaki was – he was continuously trying to kill people. He helped oversee the 2010 plot to detonate explosive devices on two U.S. bound cargo planes. He was involved in planning to blow up an airliner in 2009. When Farouk Abdulmutallab – the Christmas Day bomber – went to Yemen in 2009, Awlaki hosted him, approved his suicide operation, and helped him tape a martyrdom video to be shown after the attack. His last instructions were to blow up the airplane when it was over American soil. I would have detained and prosecuted Awlaki if we captured him before he carried out a plot. But we couldn’t. And as President, I would have been derelict in my duty had I not authorized the strike that took out Awlaki.

Awlaki was killed in September 2011 along with Samir Khan, another U.S. citizen who was not specifically targeted 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.

When confronted about this killing last year, White House spokesman Robert Gibbs rather callously blamed the victim for his “choice” of a father:

I would suggest that you should have a far more responsible father if they are truly concerned about the well being of their children. I don’t think becoming an al Qaeda jihadist terrorist is the best way to go about doing your business.

In his speech, Obama did not provide any additional insight into the killing of the two teenagers – whether they were specifically targeted for assassination or on what grounds. What is known, however, is that Obama has approved not only “personality” strikes aimed at identified, high-value terrorists, but also “signature” strikes that target suspicious compounds in areas allegedly controlled by militants.

In fact, according to an analysis by the New America Foundation, of the thousands who have been killed by drone strikes in Pakistan, only 37 – or two percent – were leaders of al-Qaeda or affiliated organizations.

In a letter to Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.) yesterday, Attorney General Eric Holder officially acknowledged for the first time that drone strikes have killed at least four U.S. citizens, only one of whom was specifically targeted however. “Since 2009,” Holder wrote,

the United States, in the conduct of U.S. counterterrorism operations against al-Qa’ida and its associated forces outside of areas of active hostilities, has specifically targeted and killed one U.S. citizen, Anwar al-Aulaqi. The United States is further aware of three other U.S. citizens who have been killed in such U.S. counterterrorism operations over that same time period: Samir Khan, ‘Abd al-Rahman Anwar al-Aulaqi, and Jude Kenan Mohammed. These individuals were not specifically targeted by the United States.

What “not specifically targeted by the United States” means is unclear, but the concept fits in well with what is known about signature strikes, which may target large groups of people based on suspicious activity or perceived associations with “known terrorists.”

“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 New York Times last year. The Times revealed that there has been substantial disagreement in Washington regarding the standards being applied for these attacks:

But some State Department officials have complained to the White House that the criteria used by the C.I.A. for identifying a terrorist “signature” were too lax. The joke was that when the C.I.A. sees “three guys doing jumping jacks,” the agency thinks it is a terrorist training camp, said one senior official. Men loading a truck with fertilizer could be bombmakers — but they might also be farmers, skeptics argued.

Obama’s speech did not address the specific concerns over signature strikes, skirted the issue of the attacks on Awlaki’s 16-year-old son and glossed over the issue of innocent civilian deaths. Noting that “there is a wide gap between U.S. assessments of such casualties, and non-governmental reports,” he did however acknowledge that “U.S. strikes have resulted in civilian casualties, a risk that exists in all wars.”

Nevertheless, Obama claimed that the strikes comply with international law, citing the “Authorization to Use Military Force” that Congress adopted in the days after 9/11.

“Under domestic law, and international law, the United States is at war with al Qaeda, the Taliban, and their associated forces,” Obama said. “We are at war with an organization that right now would kill as many Americans as they could if we did not stop them first. So this is a just war – a war waged proportionally, in last resort, and in self-defense.”

Claiming that the war is broadly in compliance with international law, Obama failed to address the many specific concerns that have been raised by international organizations and officials regarding drone warfare.

Testifying to the UN the Human Rights Council’s following her visit to Pakistan last summer, UN High Commissioner for Human Rights Navi Pillay criticized the use of drone strikes by the United States, noting in particular that they “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.

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 UN Charter,” said Philip Alston, the UN’s Special Rapporteur on extrajudicial, summary or arbitrary executions. “If invoked by other states, in pursuit of those they deem to be terrorists and to have attacked them, it would cause chaos.”

As the 2010 UN report states: “Whether or not a specific targeted killing is legal depends on the context in which it is conducted: whether in armed conflict, outside armed conflict, or in relation to the interstate use of force.”

Under the rules of international humanitarian law, the report points out, “targeted killing is only lawful when the target is a ‘combatant’ or ‘fighter’ or, in the case of a civilian, only for such time as the person ‘directly participates in hostilities.’”

In addition, the killing must be militarily necessary, the use of force must be proportionate so that any anticipated military advantage is considered in light of the expected harm to civilians in the vicinity, and everything feasible must be done to prevent mistakes and minimize harm to civilians. These standards apply regardless of whether the armed conflict is between States (an international armed conflict) or between a State and a non-state armed group (non-international armed conflict), including alleged terrorists.

Since the U.S. drone strikes are being carried out far from any battlefield, it is inconceivable that they conform with the “military necessity” requirement under international law, a question that Obama sidestepped in his speech, along with so many other issues.

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Campaigning for a United States in compliance with its international obligations. Follow on Twitter here: https://twitter.com/compliancecamp Facebook: https://www.facebook.com/compliancecamp Comments, article submissions or news leads are welcome at compliancecampaign [at] gmail.com.

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