Two major developments took place on Tuesday regarding the ongoing travesty of justice known as Guantanamo Bay. Taken together, the developments once again demonstrate how drastically out of step the United States is with the global community when it comes to human rights and international norms, and in particular how contemptuous the U.S. Congress remains of nearly universal international opinion on the Guantanamo Bay abomination.
On the same day that the U.S. Senate voted 91-3 in favor of a military spending bill that obstructs President Obama’s plans to close the Guantanamo prison camp by prohibiting transfers of detainees, one of Europe’s leading human rights bodies issued a comprehensive report reiterating the international community’s calls to close the detention facility and to either bring the remaining detainees to trial or free them.
The scathing 280-page report issued by the OSCE Office for Democratic Institutions and Human Rights also calls for the full investigation of human rights violations at the prison, including torture, as well as prosecutions of those responsible.
“There is a clear need for full transparency and accountability in addressing the violations of the human rights of detainees, including torture, that have occurred at the Guantanamo detention facility, and as part of the CIA rendition program,” said Omer Fisher, Deputy Head of ODIHR’s Human Rights Department. “Detainees have a right to redress, including access to justice, to compensation, and to medical rehabilitation.”
The report analyses compliance with international human rights standards of the detention and proceedings before U.S. military commissions, demands accountability for human rights violations both at Guantanamo and in the CIA’s illegal rendition and torture program, and specifies the right of victims to claim redress for arbitrary detention and ill-treatment. Regarding the CIA’s rendition and torture program, the report makes clear not only the United States but 27 other OSCE countries are guilty of participating and enabling this gross violation of human rights.
Detention and interrogation practices are examined in some detail. According to the report’s executive summary:
A wide variety of sources, including leaked ICRC reports and official reports have pointed to numerous instances of abuse at Guantánamo under the Bush administration. Interviews with former Guantánamo detainees have provided ODIHR with further information on the severity of abuses inflicted upon them during their detention and interrogations. Practices were reportedly designed to break detainees’ will, cause stress and make them co-operate with and wholly dependent on their interrogators who had total control over their level of isolation, access to comfort items and basic needs such as access to food, drinkable water, sunlight or fresh air. The lack of co-operation with interrogators and non-compliance with constantly changing prison rules were punished, including by the removal of basic items and prolonged isolation. Documented cases corroborated by ODIHR interviews of former detainees indicate the routine use of excessive force against detainees by the Initial Reaction Forces and during the force-feeding of hunger strikers.
Other areas of focus of the report include the use of physical isolation, which “remains the norm for a number of detainees kept in segregated cells with access to two to four hours of recreation per day, alone or with one other detainee.”
The OSCE takes issue with U.S. claims that single-cell confinement does not amount to solitary confinement, noting that “all detainees who spend 22 hours a day in segregated cells are undoubtedly held in solitary confinement.” This isolation “can lead to severe impact on detainees’ health and its effect can be even more pronounced in cases of individuals suffering mental distress from past abuses,” the OSCE points out.
“Solitary confinement combined with the prospect of indefinite detention is even more likely to amount to torture or ill-treatment,” notes the OSCE.
Hunger strikes and force feeding are another area of concern. According to the executive summary:
The reportedly substantial deterioration of confinement conditions during hunger strikes, including the most recent mass hunger strike of 2013 seems to constitute a system of punishment or reward implemented to break the hunger strike and discourage detainees from continuing to protest. Should gathered information be true, such practices would be unjustifiable and would violate a number of international human rights standards, including prison standards and the right of detainees to peacefully protest. It may also violate the prohibition of torture or ill-treatment.
As this report was being published yesterday, the Senate was voting overwhelmingly to thwart Obama’s plans to shutter the Guantanamo facility by maintaining a ban on transferring detainees. The bill adopted Tuesday imposes restrictions on moving any of the 112 remaining detainees to the United States or foreign countries. The measure had passed the house by a vote of 370-58 last week, and although Obama officially opposes the Guantanamo provisions, the White House has indicated that he will sign it into law anyway.
Pentagon spokesman Peter Cook however said that it is premature to say that Congress has blocked the efforts to close Guantanamo. “Let’s wait to see what the plan finally looks like,” he said. “The folks who are crafting that plan have been working very hard on this for months. … This is not going to deter the department from moving forward.”
Even if the plan goes forward, it’s not clear exactly how much impact it would have on ensuring U.S. compliance with international law. Since Obama’s plan would essentially import Guantanamo to the United States while keeping intact the system of indefinite arbitrary detention without charge, the physical closing of the facility in Cuba would largely be symbolic. As a recent letter to the New York Times by Steven W. Hawkins, Executive Director of Amnesty International USA, explained:
The purpose of closing Guantánamo should be to end the human rights violation of indefinite detention without charge — not merely move it to a new location and change Guantanámo’s ZIP code. If the United States does not intend to prosecute a detainee in a fair trial, it should release him. No exceptions.
This call for charging and trying Gitmo detainees or releasing them was echoed by the OSCE report released Tuesday. “Notwithstanding the complexity of the cases before the military commissions, the right to be tried without undue delay has likely been violated in a number of cases,” explained the OSCE. The report goes on:
This right, as recognized under international human rights and humanitarian law and contained in OSCE commitments, applies from the first official charges until the final judgment on appeal. ODIHR is gravely concerned that the US government has intentionally deprived the Guantánamo detainees of this right by excluding the applicability of certain speedy trial rights to cases before the military commissions. The lack of longstanding established procedures and precedent of the military commissions and the hindrances to holding regular hearings due to the remote location of Guantánamo are examples of US government actions that have contributed to the slow path of the proceedings. ODIHR is not aware of particular conduct of the defendants that had led to significant delays. Moreover, lengthy detention, including of 12-13 years in some cases, is likely a violation of the right to liberty and security which applies to pre-trial detention and provides individuals arrested or detained for criminal charges with the right to be tried within a reasonable time or released.
The Director of the OSCE Office for Democratic Institutions and Human Rights, Michael Georg Link, will present the findings of the report Thursday at OSCE headquarters in Vienna. The OSCE is an intergovernmental organization whose membership includes all of the member countries of the European Union, NATO and the Commonwealth of Independent States. The U.S. is one of its charter members, having signed its founding document, the Helsinki Final Act, in 1975.
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Far from being the global champion of human rights that it fancies itself as, the United States is in fact a flagrant violator of international human rights standards as enshrined in the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights and other landmark human rights treaties – some of which the U.S. refuses to ratify. This was the unmistakable conclusion of the U.S.’s Universal Periodic Review for compliance on human rights norms at the United Nations Human Rights Council earlier this week.
Delegates from many of the 117 countries taking part in the UPR lambasted the United States’ record of civil rights violations in the context of the nationwide epidemic of police brutality. The representative from Nambia, for example, said U.S. officials must “collaborate closely with marginalized communities to fix the broken justice system that continues to discriminate against them, despite recent waves of protest over racial profiling and police killings of unarmed black men.”
“Chad considers the United States of America to be a country of freedom, but recent events targeting black sectors of society have tarnished its image,” said Awada Angui, the delegate from that country.
The barrage of criticism led James Cadogan, senior counselor in the Department of Justice’s Civil Rights Division, to concede that the United States has a problem with police violence.
“We must rededicate ourselves to ensuring that our civil rights laws live up to their promise,” he said at the review on Monday. “The tragic deaths of Freddie Gray in Baltimore, Michael Brown in Missouri, Eric Garner in New York, Tamir Rice in Ohio, and Walter Scott in South Carolina have… challenged us to do better and to work harder for progress.”
But even while admitting its own shortcomings, the U.S. couldn’t resist the instinctual temptation to tout its record. As Mary McLeod, acting legal adviser to the U.S. Dept of State, put it, “We’re proud of the work we’ve done since our last UPR.”
Most UN Human Rights Council delegations and civil society observers strongly disagreed. One of the recurring themes in the interventions that took place on Monday was the U.S.’s failure to ratify a number of key human rights treaties and protocols, including the Convention on the Rights of the Child and Convention on the Rights of Persons with Disabilities, since its last periodic review in 2010. As Human Rights Watch noted,
In its 2010 review, the United States agreed to “consider” ratifying ICESCR, CEDAW, CRC, and CRPD (92.10, 92.11, 92.20, 92.21); ratifying ILO Convention Nos. 100 and 111 (92.22 and 92.26); ratifying the Rome Statute of the International Criminal Court (92.28); signing the Migrant Worker Treaty (92.30); lifting reservations to the ICCPR and other ratified human rights treaties (92.47, 92.48, 92.49); and establishing a national human rights institution (NHRI) at the federal level (92.74). To date, however, no new human rights treaty has been signed or ratified, no reservations, understandings or declarations have been lifted, and no NHRI established. The UPR is ineffective if limited to a conceptual exercise, and no country should claim success by accepting recommendations that require no identifiable outcomes or even proof of a deliberative process. The United States has failed to implement a number of other recommendations from its prior review. These include recommendations involving national security, criminal justice and policing, treatment of immigrants, and privacy, as detailed below, as well as overarching recommendations, such as agreeing to incorporate human rights training and education strategies in public policies (92.87). This submission also touches on issues that the United States did not address in its prior UPR but should consider in its upcoming review.
“The U.S. has little progress to show for the many commitments it made during its first Universal Periodic Review,” U.S. advocacy director at Human Rights Watch Antonio Ginatta told VOA News.
Brazil raised objections to the United States’ mass surveillance program, urging that all surveillance polices and measures comply with human rights law regardless of nationality, noting the importance of the principle of proportionality. The Brazilian delegation also criticized the U.S. record on migrant rights, and called for the elimination of police brutality.
The U.S. also heard criticism over the continued use of the death penalty.
The Belgian delegation said the U.S. should take specific measures to eliminate racial bias and wrongful convictions leading to executions. Swedish UN representative Anna Jakenberg Brinck called for a “national moratorium on the death penalty aiming at complete abolition.” Other countries, including France, pushed for “full transparency” in the types of drugs being administered to kill prisoners, following news that some death row inmates experienced inordinate pain and suffering during their executions.
The U.S.-led war on terror and the ongoing impunity related to the crimes of torture committed by the CIA were other areas of concern. One of the key demands of the UN delegations was for Washington to take measures to prevent acts of torture, to prosecute perpetrators, and to ensure that victims of torture were afforded redress and assistance.
Guantanamo was also raised, with some delegations including the United Kingdom recalling the pledge to close the prison by President Barack Obama back in January 2009 and regretting that it hasn’t happened yet. The UK called for an expedited effort to shut down the detention facility once and for all. More than 100 NGOs submitted reports on various aspects of U.S. human rights shortcomings, which are collected at the website UPR Info.
“Today was a demonstration of the no confidence vote that world opinion has made of the United States as a country that considers itself a human rights champion,” said Jamil Dakwar, director of the Human Rights Program of the American Civil Liberties Union. “I think that there was a clear message from today’s review that the United States needs to do much more to protect human rights and to bring its laws and policies in line with human rights standards.”
The UPR takes place every four years to scrutinize the human and civil rights practices of each of the UN’s 193 member nations.
Following an official visit to the Guantanamo detention facility this week, a delegation of parliamentarians from the Organization for Security and Cooperation in Europe called the prison “a dark spot on the United States’ reputation in the spheres of human rights and rule of law.”
In a joint statement, the chair and vice-chair of the OSCE Parliamentary Assembly’s human rights committee, Isabel Santos and Mehmet Sevki Kulkuloglu, said,
The detention of people under the traditional laws of war is not compatible with the modern fight against terrorism. The unfortunate application of this legal theory by the United States means that inmates could be held indefinitely, awaiting the end of a fight that does not have a clear-cut end point.
Even those who have faced charges in front of military commissions were subject to a changing legal context and serious restrictions related to classified material, all of which raises additional concerns regarding the transparency of the process and detainees’ ability to mount a defense in a fair trial.
Only a limited number of the remaining 122 detainees at Guantanamo have been charged or are expected to face charges in front of a military commission, the delegation noted. Citing the laws of war, the U.S. government has asserted that detainees can be held until the end of hostilities, a potential life sentence given the unclear and amorphous goals of the war on terror.
Although the delegation traveled to Guantanamo partly to ascertain the status and treatment of remaining detainees, it was not authorized to speak to inmates. Instead, they were given a tour of the facilities by military personnel on January 27 and met with officials from the Joint Task Force. They also viewed part of the military commission trial of Abd al Hadi al-Iraqi by closed circuit and met with senior officials from the Department of State and the Department of Defense in Washington ahead of their visit to Guantanamo Bay.
While recognizing progress has been made in relocating detainees from Guantanamo, the delegation noted that much remains to be done. “We applaud the commitment of the U.S. government to close the facility, but the United States cannot achieve this alone. It requires the support of all OSCE countries,” said Santos and Kulkuloglu.
Earlier in the week, another European body, the Parliamentary Assembly of the Council of Europe, issued a report blasting the NSA’s mass surveillance practices disclosed by whistleblower Edward Snowden as threats against “fundamental human rights” that do not substantially contribute to the prevention of terrorist attacks.
It further said it is “deeply concerned” by the “far-reaching, technologically advanced systems” used by the United States to collect, store and analyze the data of private citizens. It describes the scale of spying by the NSA as “stunning.”
The report and resolution approved by the assembly’s Legal Affairs Committee calls for:
- the collection of personal data without consent only following “a court order granted on the basis of reasonable suspicion”
- “credible, effective protection” for whistle-blowers exposing unlawful surveillance
better judicial and parliamentary control of intelligence services
- an “intelligence codex” defining mutual obligations that secret services could opt into
- an inquiry into member states’ use of mass surveillance using powers under the European Convention on Human Rights
It also criticizes “the reluctance of the competent US authorities and their European counterparts to contribute to the clarification of the facts, including their refusal to attend hearings organised by the Assembly and the European Parliament, as well as the harsh treatment of whistle-blower Edward Snowden, [that] does not contribute to restoring mutual trust and public confidence.”
Despite these welcome moves by Europeans to compel greater U.S. compliance with international norms, the continent as a whole continues to fall short of what is needed to rein the world’s rogue superpower, particularly as it relates to torture and extraordinary rendition. As Amnesty International points out in a briefing paper issued Jan. 20,
European states implicated in the US Central Intelligence Agency’s (CIA) rendition and secret detention programmes have equivocated about their roles in these operations, relied on secrecy laws to decline comment, or simply flatly denied any involvement in them. Not one has conducted a genuinely effective, broad-based investigation into the role their government played in these operations, let alone held state actors fully accountable and provided victims with an effective remedy. Europe’s assistance in facilitating the human rights violations attendant to the US operations – illegal abduction and transfer, secret detention, enforced disappearance, and torture and other ill-treatment — has long been an “open secret,” with various governments seeking to shield themselves from accountability based on unsubstantiated “national security” grounds, the dubious invocation of “state secrets,” or outright lies.
Amnesty calls on
all European governments implicated in the CIA’s illegal rendition, secret detention and interrogation operations – including, among others, Germany, Lithuanian, Macedonia, Poland, Romania, and UK – to:
Conduct an effective, broad-based investigation as a matter of urgency into their involvement in these operations, with a view toward reforming the laws, policies, and practices that permitted such cooperation;
Ensure that those state actors and any foreign agents responsible for crimes under domestic and international law such as torture and enforced disappearance on the territories of European states are criminally charged and held accountable after fair trials;
Afford victims of the human rights violations attendant to these operations a full and effective remedy.
“Without European help, the USA would not have been able to secretly detain and torture people for so many years. The Senate report makes it abundantly clear that foreign governments were essential to the ‘success’ of the CIA operations – and evidence that has been mounting for nearly a decade points to key European allies,” said Julia Hall, Amnesty International’s expert on counter-terrorism and human rights.
The longstanding Obama administration policy of providing officially sanctioned impunity to the architects and practitioners of the U.S. torture regime implemented by the previous administration is coming under increasing pressure, with the United Nations last week reviewing the United States’ compliance with the Convention against Torture and a growing number of voices calling for the U.S. to finally reckon with its troubling background on the use of cruel, degrading and inhuman treatment of prisoners.
Ahead of the U.S.’s review at the UN Committee against Torture, a group of law professors associated with the International Human Rights Clinic at Harvard Law School co-authored a shadow report to the UN, entitled “Failure to Prosecute Senior U.S. Government Officials for Torture Violates International Law.” The report documented how the Obama administration is in flagrant violation of the law by shielding from criminal liability the senior government officials responsible for the post-9/11 U.S. torture program.
The report takes the United States to task for why it has not prosecuted President George Bush (who admitted in his memoir to authorizing the waterboarding of Khalid Sheikh Mohammed); former Justice Department lawyer John Yoo (author of an opinion that offered legal justifications for torture); and former CIA contractor Dr. James Mitchell (reported to have personally waterboarded the prisoner known as Abu Zubaydah).
The report also urges the UN Committee to renew its calls for criminal investigations and prosecution of officials at the highest levels of the chain of command.
Also ahead of the UN review, Human Rights Watch and the ACLU wrote a letter to President Obama urging him to reverse the position articulated by the Bush administration that certain obligations under the Convention against Torture only applied within U.S. territory.
“Within days of taking office in 2009, you took important steps to reverse the previous administration’s harmful record and legacy on torture, including by issuing an executive order reinforcing the ban on torture,” reads the letter. “However, to ensure that such practices are not adopted by future administrations, it is critical that the United States also abandon the distorted interpretations of international law through which the George W. Bush administration sought to justify torture and ill-treatment and transfers to similar abuse.”
In the context of an ongoing dispute over the long-delayed release of a Senate report detailing the defunct U.S. torture regime, a group of Nobel Peace Prize laureates issued an open letter on Oct. 27 to the Obama administration, calling, inter alia, for the United States to fully disclose to the American people “the extent and use of torture and rendition by American soldiers, operatives, and contractors, as well as the authorization of torture and rendition by American officials.”
The laureates also called for the adoption of “firm policy and oversight restating and upholding international law relating to conflict, including the Geneva Convention and the UN Convention against Torture,” noting that Obama’s open admission that the U.S. engaged in torture is “a first step in the US coming to terms with a grim chapter in its history.”
The letter continued:
The subsequent release of the Senate Select Committee on Intelligence summary report will be an opportunity for the country and the world to see, in at least some detail, the extent to which their government and its representatives authorized, ordered and inflicted torture on their fellow human beings. …
When a nation’s leaders condone and even order torture, that nation has lost its way. One need only look to the regimes where torture became a systematic practice – from Imperial Japan and Nazi Germany to the French in Algeria, South Vietnam, the Khmer Rouge and others – to see the ultimate fate of a regime so divorced from their own humanity.
The practices of torture, rendition and imprisonment without due process by the United States have even greater ramifications. The United States, born of the concept of the inherent equality of all before the law, has been since its inception a hallmark that would be emulated by countries and entire regions of the world. For more than two centuries, it has been the enlightened ideals of America’s founders that changed civilization on Earth for the better, and made the US a giant among nations. …
In recent decades, by accepting the flagrant use of torture and other violations of international law in the name of combating terrorism, American leaders have eroded the very freedoms and rights that generations of their young gave their lives to defend. They have again set an example that will be followed by others; only now, it is one that will be used to justify the use of torture by regimes around the world, including against American soldiers in foreign lands. In losing their way, they have made us all vulnerable.
The letter noted that the world will be watching in the coming weeks as the release of the Senate findings on the U.S. torture program brings the country to a crossroads.
“It remains to be seen whether the United States will turn a blind eye to the effects of its actions on its own people and on the rest of the world, or if it will take the necessary steps to recover the standards on which the country was founded, and to once again adhere to the international conventions it helped to bring into being,” wrote the laureates, which included Archbishop Desmond Tutu and F.W. De Klerk of South Africa, Mohammad ElBaradei of Egypt, and Jody Williams of the United States.
A week after this letter was issued, the U.S. midterm elections, which failed to meet a number of important international standards, resulted in the defeat of one of the Senate’s few champions for human rights, Sen. Mark Udall (D-CO). Following his defeat, a chorus of voices has urged Udall to use his congressional immunity – provided by the Constitution’s Speech and Debate clause – to read the Senate’s still-classified 6,000-page CIA torture report into the Congressional record. Udall is reportedly giving serious consideration to taking up this challenge.
Then, of course, there was the UN’s review last week of U.S. compliance (or lack thereof) with the Convention against Torture (CAT), a legally binding treaty to which the United States has subscribed. Every several years signatories to the CAT are required to submit reports to the UN’s Committee against Torture, followed by a question period by the Committee to which the government is able to respond to the following day. It was the U.S.’s turn on Nov. 12 and 13.
As the hearing got underway in Geneva, Agence France-Presse reported:
The delegation faced a barrage of questions from committee members on how the country was dealing with rectifying and providing redress for acknowledged abuses during the “war on terror”.
The US delegation was asked to explain why the US military prison at Guantanamo Bay in Cuba remains open, why many detainees remain there without charge and when Washington plans to shut it down.
The committee members also questioned the treatment of prisoners there, and lack of redress for victims of the widely publicised abuses by US troops at the Abu Ghraib prison in Iraq in the early 2000s.
Beyond the “war on terror” legacy, the committee members raised issues of abuses in US prisons, rape in prisons, the broad use of drawn-out solitary confinement, and long years on death row.
And they asked how Washington could justify its widespread detention of non-violent, non-criminal illegal immigrants, including minors.
And they slammed police brutality that appears to disproportionately affect minorities, such as 18-year-old Michael Brown, who was shot and killed by white police officer Darren Wilson in Ferguson, Missouri last August.
To its credit, the U.S. delegation at the UN issued a high-profile reversal of the previous administration, indicating publicly that, unlike under President George W. Bush, the government has decided that the ban against torture applies not only within the borders of the United States, but also to areas outside of its territorial boundaries, for example at Guantanamo Bay, Cuba – the site of years of wanton human rights abuses including arbitrary detention, torture and murder.
Mary E. McLeod, acting legal adviser for the State Department, stated, “We understand that where the text of the Convention provides that obligations apply to a State Party in ‘any territory under its jurisdiction,’ such obligations, including the obligations in Articles 2 and 16 to prevent torture and cruel, inhuman or degrading treatment or punishment, extend to certain areas beyond the sovereign territory of the State Party.”
“More specifically, to ‘all places that the State Party controls as a governmental authority,’ we have determined that the United States currently exercises such control at the US Naval Station at Guantanamo Bay, Cuba, and with respect to U.S. registered ships and aircraft.”
“While the Obama administration is distancing itself from discredited Bush-era interpretations of the Convention against Torture, it is still unwilling to accept its full obligations under the treaty,” said Laura Pitter, national security counsel at Human Rights Watch. “The U.S. should explicitly accept that the treaty applies anywhere the US exercises ‘effective control,’ including any detention centers overseas.”
During the question period of the UN review, the U.S. delegation was asked about its lack of prosecutions for torture, as well as its generally lackluster attempts to investigate these crimes. UN official Giorgi Tugushi from the former Soviet state of Georgia noted in particular that the Committee had received information that torture victims were not interviewed in the course of the investigation by Assistant U.S. Attorney John Durham into torture.
Attorney General Eric Holder had appointed Durham in 2009 to conduct a preliminary review into “whether federal laws were violated in connection with the interrogation of specific detainees at overseas locations.” Durham decided, however, that only the death of two individuals in US custody at overseas locations warranted the opening of “full criminal investigations,” which ultimately resulted in no prosecutions.
The Department of Justice declined to prosecute “because the admissible evidence would not be sufficient to obtain and sustain a conviction beyond a reasonable doubt,” according to Holder.
Tugushi expressed some concern over this result. “The investigation process looked into 101 cases and decided not to prosecute anyone,” Tugushi stated. “So, maybe, you can provide more information on this outcome.”
In response, the Justice Department’s David Bitkower explained:
Mr. Durham and his team reviewed the treatment of 101 such detainee cases. In so doing, he drew upon information provided by the CIA inspector general and report from the International Committee of the Red Cross regarding the treatment of high-value detainees formerly in CIA custody, the Department of Justice’s report on legal guidance related to enhanced interrogation techniques and other sources. After reviewing a substantial volume of information, Mr. Durham recommended the opening of two full criminal investigations and Attorney General Eric Holder accepted that recommendation.
After investigation the Department ultimately determined not to initiate prosecution of those cases. That decision was made based on the same principles that federal prosecutors apply in all determinations of whether to initiate a prosecution. Specifically, Mr. Durham’s review concluded that the admissible evidence would not be sufficient to obtain and sustain convictions beyond a reasonable doubt…
Of course, no specific incidents that Durham may have examined were mentioned by Bitkower.
“Because the cases did not result in prosecutions, I cannot publicly describe with specificity the investigative methods employed by Mr. Durham or the identities of any witnesses his team may have interviewed,” he declared.
In other words, torture impunity remains official U.S. policy.
A full year after President Barack Obama’s last major public promise to close the travesty of justice known as the Guantanamo Bay detention center, halting steps towards progress were made this week with a number of developments offering a glimmer of hope for 154 men who remain at the prison camp in an endless state of legal limbo.
The developments come as dozens of human rights groups mobilize for a global day of action today calling for Guantanamo’s permanent closure, an end to indefinite detention policies and the release of the men still languishing in the prison.
On Wednesday, a U.S. federal judge ordered the release of secret video recordings of a hunger-striking Guantanamo detainee being force-fed by his captors. The force-feeding process is a highly controversial practice condemned last year by UN Special Rapporteur on Torture Juan Mendez as a “form of ill-treatment that in some cases can amount to torture.”
The Defense Department had long kept these videos secret. As the Guardian reports:
Before last week, the Defense Department did not even acknowledge that videotapes of its enteral feedings of hunger striking detainees – conducted by inserting a tube into the stomach through the nose – even existed.
But now the US government has conceded that there are 34 videos showing the forcible feeding of one detainee. The analogue video cassettes are part of a broader set of 136 videos showing Dhiab being forcibly removed from his cell by Guantánamo Bay guards bringing the hunger striker to be fed enterally.
District court judge Gladys Kessler, of the Washington DC circuit, rejected an argument from the government that the tapes were irrelevant to Dhiab’s unusual lawsuit, which seeks to get a federal judge to set the conditions of his military confinement, which Dhiab considers amount to torture.
While certainly a positive development, according to a press release on the judge’s ruling by the British human rights group Reprieve, “Judge Gladys Kessler did not require the government to hand over all 136 videos of Mr. Dhiab being subjected to the ‘Forcible Cell Extraction’ process – which has been done to him on average three times a week for a full year.” It is also not clear whether the Defense Department will comply with the ruling.
On Thursday, Judge Kessler urged the authorities to find a compromise that would spare him “the agony of having the feeding tubes inserted and removed for each feeding” and “the pain and discomfort of the restraint chair.” The judge declined to extend the temporary restraining order in Dhiab’s case because of the risk that he would die, saying:
The Court is now faced with an anguishing Hobson’s choice: reissue another Temporary Restraining Order (“TRO”) despite the very real probability that Mr. Dhiab will die, because he has indicated a continuing desire to refuse to eat and/or drink liquids, or refuse to issue the TRO and allow the medical personnel on the scene to take the medical actions to keep Mr Dhiab alive, but at the possible cost of great pain and suffering.
Also on Thursday, the United States House of Representatives voted on an amendment that could help pave the way to ultimately closing the detention facility. It was something of a mixed blessing though, as it failed to close the prison but removed some restrictions on the transfer of detainees. As the U.S.-based rights group Human Rights First explained:
Though the House voted against an amendment proposed by Representative Adam Smith (D-WA) that would have helped shutter the detention facility, the final bill included fewer restrictions on transferring detainees than it has in past years.
“We came out of today’s floor debate with progress toward the ultimate goal of closing Guantanamo,” noted Wala. “There seems to be a bipartisan acknowledgement that Guantanamo has to be dealt with and that the detention facility should and will close one way or another.”
The developments this week provide some added momentum to the “global day of action” today dedicated to closing Guantanamo, marking one year since President Obama restated his promise to close the detention center. As Amnesty International describes the event planned for Washington, DC (at Lafayette Park in front of the White House):
On Friday, May 23, one year after President Obama once again made the case for closing the detention facility at Guantánamo Bay in a speech at National Defense University, Amnesty International, the National Religious Campaign Against Torture, September 11th Families for Peaceful Tomorrows, Witness Against Torture and other groups are banding together in Washington as part of a Global Day of Action to Close Guantánamo and End Indefinite Detention.
In total, demonstrations will take place today in 35 cities around the world calling for Guantanamo’s closure and the end of indefinite detention. A full list of events is available here.
The human rights groups’ sense of urgency has been intensified by new revelations that some Guantanamo detainees who had been thought to have committed suicide were in fact murdered by CIA torturers at a secret interrogation facility site at Guantanamo called “Camp No” or “Penny Lane.”
The revelations were published in Harper’s Magazine last week, including an incriminating document indicating that the men had been tortured to death, rather than having committed suicide. In response, the Center for Constitutional Rights, which represents the families of two of the men who died, issued the following statement:
The new eyewitness account of what happened on the day three men died at Guantanamo adds to the growing body of information strongly undercutting the military’s narrative that the men committed suicide in their cells, and suggesting that the men were instead killed at a CIA-run black site at Guantánamo known as “Camp No” or “Penny Lane.” There has never been an impartial and effective investigation into the deaths, and the heavily-redacted version of the military investigation the government was compelled to release is riddled with inexplicable gaps and inconsistencies. One of those gaps was the document published today by Harper’s, which was apparently deliberately removed from the military’s public report.
The families’ attempt to seek the truth about these deaths was met with dismissal by the district and circuit courts in D.C., on the grounds that even if federal officials had been involved in the homicides, the courts were powerless to grant a remedy. The families have now turned to the Inter-American Commission on Human Rights, which should accept their petition, investigate the violations of international law they have alleged, and uphold their right – and the public’s right – to know the truth about what happened.
To find a demonstration near you to demand Guantanamo’s closure today, click here.
The United States came under sustained criticism last week during a two-day review by the United Nations Human Rights Committee for its compliance with the International Covenant on Civil and Political Rights (ICCPR), a legally binding treaty ratified by the United States in 1992.
Much of the attention that the review has received in the media has focused on the U.S.’s refusal to recognize the ICCPR’s mandate over its actions beyond its own borders, using the “extra-territoriality” claim to justify its actions in Guantánamo and in conflict zones.
Walter Kälin, a Swiss international human rights lawyer who sits on the committee, criticized the U.S. position. “This world is an unsafe place,” Kälin said. “Will it not become even more dangerous if any state would be willing to claim that international law does not prevent them from committing human rights violations abroad?”
Besides its controversial counter-terrorism tactics, including indefinite detention and the use of drones to kill terrorist suspects far from any battlefield, the U.S. also came under criticism for a litany of human rights abuses that included NSA surveillance, police brutality, the death penalty, rampant gun violence and endemic racial inequality.
The U.S. government was also reprimanded for the treatment of youth in the criminal justice system, with committee members pointing out that the sentence of life without parole for child offenders may raise issues under article 7 of the ICCPR, which prohibits “cruel, inhuman or degrading treatment or punishment.” While this matter is left to the states under the U.S. system of federalism, the national government should require that juveniles be separated from adult prisoners, the U.S. was told.
Corporal punishment of children in schools, detention centers and homes was also raised, with the U.S. delegation asked what policy has been adopted to eliminate corporal punishment and treat children as minors rather than adults in the criminal justice system. To this criticism, the U.S. responded that it is still “exceptional” in the U.S. for children to be tried in adult courts.
Concern was also expressed over mandatory deportation of immigrants convicted of nonviolent misdemeanors without regard to individual cases. Further, the U.S. has failed to meet international obligations for freedom of religious belief in relation to indigenous communities, the committee said.
The U.S. was asked for a timeline for closing the Guantanamo detention center, and concern was raised over the fairness of the military commissions set up to try terrorism suspects. The majority of Guantanamo detainees approved for transfer remain in administrative limbo, the U.S. was reminded.
When it comes to mass surveillance being conducted by the National Security Agency, the U.S. delegation was asked if the NSA surveillance is “necessary and proportionate,” and whether the oversight under the FISA court could be considered sufficient.
NSA surveillance raises concerns under articles 17 and 19 of the ICCPR, the U.S. was told. According to article 17,
1. No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation.
2. Everyone has the right to the protection of the law against such interference or attacks.
Article 19 guarantees that,
1. Everyone shall have the right to hold opinions without interference.
2. Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.
3. The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary:
(a) For respect of the rights or reputations of others;
(b) For the protection of national security or of public order (ordre public), or of public health or morals.
Committee members also highlighted the Obama administration’s failure to prosecute any of the officials responsible for permitting waterboarding and other “enhanced interrogation” techniques under the previous administration.
The committee weighed in on the ongoing conflict between the CIA and the Senate Intelligence Committee, calling in particular for the U.S. to release a report on a Bush-era interrogation program at the heart of the dispute.
“It would appear that a Senator Dianne Feinstein claims that the computers of the Senate have been hacked into in the context of this investigation,” Victor Manuel Rodriguez-Rescia, a committee member from Costa Rica, told the U.S. delegation.
“In the light of this, we would like hear a commitment that this report will be disclosed, will be made public and therefore be de-classified so that we the committee can really analyze what follow-up you have given to these hearings.”
Committee chair Nigel Rodley, a British law professor and former UN investigator on torture, suggested lawyers in the Bush administration who drew up memorandums justifying the use of harsh interrogation techniques could also be liable to prosecution.
“When evidently seriously flawed legal opinions are issued which then are used as a cover for the committing of serious crimes, one wonders at what point the authors of such opinions may themselves have to be considered part of the criminal plan in the first place?” Rodley said.
“Of course we know that so far there has been impunity.”
This impunity stems in part from the U.S. position that the treaty imposes no human rights obligations on American military and intelligence forces when they operate abroad, rejecting an interpretation by the United Nations and the top State Department lawyer during President Obama’s first term.
“The United States continues to believe that its interpretation — that the covenant applies only to individuals both within its territory and within its jurisdiction — is the most consistent with the covenant’s language and negotiating history,” Mary McLeod, the State Department’s acting legal adviser, said during the session.
This narrow legal reasoning drew criticism from the UN panel, with committee member Yuji Iwasawa, Professor of International Law at the University of Tokyo, pointing out that “No state has made more reservations to the ICCPR than the United States.”
The review last week, held on March 13-14, is a voluntary exercise, repeated every five years, and the U.S. will face no penalties if it ignores the committee’s recommendations, which will appear in a final report in a few weeks’ time.
The Guardian noted however that “the U.S. is clearly sensitive to suggestions that it fails to live up to the human rights obligations enshrined in the convention – as signalled by the large size of its delegation to Geneva this week. And as an act of public shaming, Thursday’s encounter was frequently uncomfortable for the U.S.”
With hunger strikes now underway at U.S. prisons in Cuba and California, U.S. detention policies are once again in the global spotlight, being called a violation of international norms tantamount to torture.
Last week, an international body called on the United States to once and for all close the notorious prison camp at Guantanamo Bay. The OSCE Parliamentary Assembly, which counts the U.S. as one of its 57 member states, adopted a resolution at its Annual Session in Istanbul, calling “for the permanent closing of this detention facility as soon as possible.”
Although generally very soft on the U.S. government and taking pains to avoid criticism of the overall policy of indefinite detention and the torturous force-feeding taking place at Gitmo, the resolution nevertheless reiterates the OSCE PA’s longstanding calls for the closure of this prison and “recommends an increased co-operation between Europe and the United States as regards the concrete implementation of the closing of Guantanamo.”
It was the fifth time since 2003 that the OSCE PA had called for the prison’s closure.
In introducing the resolution, its sponsor Lord Alf Dubs noted that President Obama has indicated that he still believes that Guantanamo should be closed. Dubs drew attention to the hunger strike taking place at Gitmo and noted that it is the responsibility of all countries that have nationals at Gitmo to receive these prisoners. He pointed out that the British government has indicated it would allow Shaker Aamer, a British national unjustly held for 11 years at Guantanamo, to return to the UK, but to this date the U.S. government has refused to release him.
Dubs further noted widespread international criticism of the Guantanamo prison camp, with the International Committee of the Red Cross documenting the profound damage to psychological health posed by indefinite detention, and UN Human Rights Commissioner Navi Pillay raising serious questions about the prison camp’s compliance with international law.
Notably, rather than calling out the U.S. for its human rights abuses, most delegates to the OSCE PA used the opportunity to obliquely praise the United States for its “commitment” to closing the prison camp, with only Belarus strongly criticizing the U.S. government for its failure to do so. (Watch the debate in the original floor language – including English, French and Russian – here.)
Nevertheless, the resolution was adopted overwhelmingly, with the U.S. delegation abstaining.
As this resolution was adopted, a video began going viral depicting the horrific practice of force-feeding at Guantanamo. Based on a leaked document which sets out the military instructions, or standard operating procedure, for force-feeding detainees, the four-minute film made by the human rights organization Reprieve depicts U.S. actor and rapper Yasiin Bey (formerly known as Mos Def), experiencing the procedure.
After four days on YouTube, the video had already received 2.5 million views.
Currently, more than 100 Gitmo detainees are on hunger strike, with more than 40 being force-fed twice a day in gruesome procedures that last up to two hours. Carlos Warner, a lawyer who represents several hunger strikers, told the Guardian in June: “The hunger strike grows for two reasons: the military’s refusal to negotiate with the men in a productive way and because the president has taken no action in spite of his words.”
The practice of force-feeding is at odds with international medical policy on prisoners’ right to refuse nourishment.
In 2006, the World Medical Association, an organization that represents physicians around the world, issued the Declaration of Tokyo, which states: “Where a prisoner refuses nourishment and is considered by the physician as capable of forming an unimpaired and rational judgment concerning the consequences of such a voluntary refusal of nourishment, he or she shall not be fed artificially.”
The American Medical Association has also said that the practice “violates core ethical values of the medical profession.”
Despite these grave concerns over the force-feeding going on at Guantanamo Bay, prison officials at Pelican Bay State Prison in California are now preparing to force-feed thousands of inmates who are on a hunger strike to protest prolonged solitary confinement, as well as other “medieval conditions” in the California prison system.
With originally 29,000 hunger strikers, about 12,000 prisoners being held in two-thirds of California’s 33 prisons have refused meals for the fourth consecutive day in a show of solidarity against conditions at Pelican Bay.
Denied telephone calls, contact visits and education, work or rehabilitation programs, prisoners in the Security Housing Unit (SHU) of Pelican Bay are isolated for at least 22 and a half hours a day in cramped, concrete, windowless cells.
Held under these conditions for more than a decade and some over 20 years, the SHU prisoners began striking on Monday and the protest spread. Californian officials instituted an official state response when the strike entered its fourth day, which includes aggressive monitoring of inmates’ health and possible force feeding.
The prisoners’ five demands include:
1. Eliminate group punishments and administrative abuse.
2. Abolish the debriefing policy and modify active/inactive gang status criteria.
3. Comply with the recommendations of the US Commission on Safety and Abuse in America’s Prisons recommendations and end long-term solitary confinement.
4. Provide adequate and nutritious food.
5. Create and expand constructive programming.
As Amnesty International points out, the practice of long-term solitary confinement is in violation the United States’ international obligations:
While there may be instances where holding prisoners in isolation is appropriate and humane, the use of prolonged, indefinite solitary confinement is a violation of the prohibition against torture and other cruel, inhuman or degrading treatment or punishment found in international human rights law. By violating this prohibition, U.S. authorities not only abuse the rights of prisoners, they undermine the human rights that protect all of us from abuse.
Nevertheless, “more than 3,000 prisoners in California are held in high security isolation units known as Security Housing Units, where they are confined for at least 22 and a half hours a day in single or double cells, with no work or meaningful rehabilitation programs or group activities of any kind,” Amnesty notes.
More than 500 prisoners have spent 10 or more years in the Pelican Bay SHU, with 78 in solitary more than 20 years. While California holds the most prisoners in solitary, the practice is widespread across the United States.
To add your name to a petition in support of the California hunger strikers, click here.
To call for the closure of Guantanamo, click here.
Nationwide actions in support of the California hunger strike can be found at Prisoner Hunger Strike Solidarity.
Over the past week, international bodies such as the European Parliament and the UN Human Rights Committee have raised grave concerns over continuing U.S. lawlessness in its prosecution of the war on terror, and in particular the travesty of justice known as Guantanamo Bay.
In a resolution adopted last Thursday, the day of President Obama’s big speech attempting to reassure the American public and the international community about drones and Gitmo, the European Parliament noted concern for the well-being of the hunger striking prisoners at Guantanamo and especially those being force-fed. The EP expressed anxiety in particular over the mental and physical condition of the prisoners, “a number of whom have been subjected to torture or inhuman and degrading treatment.”
The European Parliament reiterated its call on the US authorities “to close the Guantánamo Bay detention camp immediately and prohibit the use of torture and ill-treatment in all circumstances” and called “for those inmates who have been cleared for release to be released, transferred to their home countries or other countries for resettlement, and for the remaining detainees to be charged in a civil court with fair trial standards.”
The body also criticized the military commissions that have been set up to try some Guantanamo detainees, as these commissions “do not meet international fair trial standards.”
It further pointed out that the continuing detention without charge or trial of these 166 men is contrary to basic principles of justice. Arbitrary detention “is in clear breach of international law and that this severely undermines the United States’ stance as an upholder of human rights,” noted the resolution.
As British journalist Andy Worthington explained,
As far as current action is concerned, involving European countries directly, the European Parliament resolution is noteworthy for its call for the coordination of “a joint EU Member States’ initiative” not only “to urge the US President to act” on revisiting his failed promise to close Guantánamo, but also to offer to “receive additional Guantánamo inmates on European soil, especially the approximately dozen men cleared for release who cannot return to their home countries.”
Testifying at the UN Human Rights Committee today, High Commissioner on Human Rights Navi Pillay warned that U.S. counter-terror policies are violating human rights and undermining international law. She criticized in particular Obama’s failure to close Guantanamo and admonished European nations for participating in the forced disappearance program dubbed “extraordinary rendition” by the United States.
“The United States’ failure to shut down the Guantanamo detention centre has been an example of the struggle against terrorism failing to uphold human rights, among them the right to a fair trial,” Pillay said.
The continuing indefinite detention of many of these individuals amounts to arbitrary detention, in breach of international law, and the injustice embodied in this detention centre has become an ideal recruitment tool for terrorists. I have repeatedly urged the Government of the United States of America to close Guantanamo Bay in compliance with its obligations under international human rights law. I therefore acknowledge President Obama’s statement last Thursday outlining practical steps towards closing the detention facility, such as the lifting of the moratorium on transferring relevant detainees to Yemen. I encourage the United States to ensure that all such measures are carried out in compliance with its obligations under international human rights law. In the meantime, so long as Guantanamo remains open, the authorities must make every effort to ensure full respect for the human rights of detainees, including those who choose to go on hunger strike.
I am dismayed by the continuing failure of many European States to undertake public and independent investigations of past involvement in the U.S. renditions programme, under which terrorist suspects were captured and delivered to interrogation centres without regard for due process. Some of them still languish in Guantanamo. Last September, the European Parliament denounced obstacles that have been encountered by a number of parliamentary and judicial inquiries into this topic. Credible and independent investigations are a vital first step towards accountability, and I call on States to make this a priority.
Last July, the OSCE Parliamentary Assembly – a 323-member organization comprising lawmakers from Europe, North America and Central Asia – also adopted a resolution condemning the Obama administration’s blocking of European investigations into extraordinary rendition.
Supporting the criminal investigation carried out by Polish authorities into the rendition program and welcoming attempts by British parliamentarians to ascertain the level of the United Kingdom’s involvement, the resolution “insists that the United States Government co-operates with European investigations” and “calls upon the United States to release any pertinent information to appropriate investigators.”
Needless to say, since then, the U.S. has not adequately dealt with the rendition question. A 213-page report published earlier this year by the Open Society Justice Initiative documented how the CIA conspired with dozens of governments around the world to build a secret extraordinary rendition and detention program that spanned the globe and that the United States has failed to conduct effective investigations into these policies.
To date, the U.S. and the vast majority of the other 54 governments involved have refused to acknowledge their participation, much less compensate the victims, or hold accountable those most responsible for the program and its abuses, the Open Society concluded.
In its report on the U.S. human rights situation released last week, Amnesty International criticized the lack of accountability for deaths that have occurred in secret detention by the United States.
“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,” lamented Amnesty, noting in particular the lack of investigations into the deaths of two men who were believed to be tortured to death in U.S. custody.
Further, Amnesty International expressed concern over the use of drone strikes by the U.S. which amount to a policy of “extrajudicial executions in violation of international human rights law.”
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.”
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.