Tag Archives: CIA

United States

After US torture report, how to enshrine ‘never again’?

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gulrahman

Gul Rahman (pictured above), an Afghan citizen arrested by US officials in Pakistan in October 2002, froze to his death on the floor of a prison in US captivity just a month later, stripped half-naked and chained to a wall in a secret ‘black site’ operated by the US Central Intelligence Agency in Kabul. USflag

That’s one of several revelations from the US Senate Select Committee on Intelligence report respecting the CIA’s use of torture techniques in the wake of the September 2001 terrorist attacks and throughout two wars in Afghanistan and Iraq throughout the duration of the presidency of George W. Bush.

The techniques used by CIA interrogators, as outlined in the report, are more gruesome than previously reported, though I can’t imagine that it surprises anyone. It’s not completely unrealistic, for example, that interrogators could have waterboarded Khalid Sheikh Mohammed 183 times or that officials ‘rectally force-fed’ a suspect or conducted rectal searches that amounted to sexual assault. Vox has a look at the 16 most outrageous CIA abuses, and the Daily Beast has a similar look at the excesses described in the report, and there’s not much to add to it. The report speaks for itself — there’s not a particularly partisan way to spin ‘rectal rehydration.’

Like Bagram and Abu Ghraib and My Lai, the Kabul black site, known as the ‘Salt Pit,’ will become another byword for US hypocrisy, a new example of how American brutality abroad triumphed over the legal, moral and democratic ideals upon which the United States claims to hold sacred. In fact, the abuses that took place at the ‘Salt Pit’ make the prisoner abuses within the Iraqi prison of Abu Ghraib seem like a trip to summer camp.

Though the report redacts the role of other countries, responsibility for the shameful actions aren’t solely for the United States alone to bear, despite international calls, including from UN special rapporteur on counter terrorism and human rights, Ben Emmerson, for the United States to prosecute the perpetrators of the worst CIA violations. But countries like Romania, Poland, Lithuania, Thailand, Egypt and many, many others (their roles not always clear from the redacted report) were happy to host CIA ‘black sites,’ sometimes at a price, where most of the alleged torture took place. It’s a reminder that, of course, the world’s a messy place and our allies, many of which are longstanding or emerging democracies themselves, are happy to be silent partners in the darker aspects of what’s been an often stabilizing US global presence.

The report’s release wasn’t even certain, given efforts by the CIA and the administration of Bush’s successor, Barack Obama, to prevent or redact much of the report. Over the weekend, US secretary of state John Kerry reportedly tried to delay the report’s release in a phone conversation with the chair of the intelligence committee, Democratic senator Dianne Feinstein of California. The CIA itself has even admitted that CIA personnel spied on Senate staffers throughout the five-year process of investigating and writing today’s 6,000-page report, for which only a redacted 480-page executive summary was released. The efforts have brought together an odd-bedfellows coalition of officials, including Feinstein, who otherwise holds hawkish views with respect to the Obama administration’s anti-terrorism efforts abroad, and Republican senators, including John McCain and Lindsey Graham, both of whom have taken hard lines in favor of American interventionism in Iraq, Libya, Syria and elsewhere.

The refrain that we hear over and over again is that the report’s release will help ensure that the CIA abuses of the 2000s (call them ‘enhanced interrogation’ or torture) won’t happen again.

But there’s really no guarantee that it won’t. Continue reading After US torture report, how to enshrine ‘never again’? →

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What’s the factual basis for killing Awlaki?

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awlaki

Though we don’t necessarily know incredibly much more about the US government’s factual basis for the targeted killing in September 2011 of Anwar al-Awlaki, a US citizen, the release of an Obama administration memo earlier today by a federal appeals court sheds new light on the administration’s legal rationale:USflag

A federal appeals court in New York on Monday made public a redacted version of a 2010 Justice Department memo that signed off on the targeted killing of an American citizen, Anwar al-Awlaki, without a trial, following Freedom of Information Act lawsuits. The memo, signed by David Barron, who was then the acting head of the department’s Office of Legal Counsel and is now a federal appeals court judge in Boston, concluded that it would be lawful to target Mr. Awlaki for killing if his capture was not feasible. Intelligence analysts had concluded that Mr. Awlaki was an operational terrorist.

The Obama administration fought the disclosure, initially refusing to confirm or deny the memo’s existence. In January 2013, a Federal District Court judge ruled that it could keep the memo secret. But in April, the United States Court of Appeals for the Second Circuit ruled that portions of the memo containing legal analysis — but not those compiling the evidence against Mr. Awlaki — must be made public.

The memo argues that 18 U.S.C. § 1119, which addresses the foreign killing of US nationals, must incorporate the public authority exception, and it further argues that the exception permits either the US Department of Defense and/or the US Central Intelligence Agency to carry out the contemplated operation against Awlaki. 

The memo also argues that Awlaki’s US citizenship doesn’t preclude DoD or CIA action, citing Hamdi v. Rumsfeld, the 2004 Supreme Court ruling that, subject to certain due process requirements, permits the detention of a US citizen as an ‘enemy combatant.’

Sharper legal minds will parse the contents of the memo, parts of which were redacted, and it presents many obviously difficult questions:

  • Even if the US military is justified in killing Awlaki under the public authority exception, the CIA’s justification is a lot more controversial because it’s a US government agency, not the military. The heavy redactions in the memo, as it relates to the CIA, make the Justice Department’s rationale unclear.
  • The US government’s statutory basis for targeting Awlaki lies in the  Authorization to Use Military Force Against Terrorists (AUMF), originally enacted in 2001, which authorizes efforts not only against al-Qaeda, but also against forces  ‘associated with’ al-Qaeda, including Al Qaeda in the Arabian Peninsula (AQAP). The argument is that this as true in Yemen (which, the Justice Department attorneys admit, is ‘far from the most active theater of combat’ between the United States and al-Qaeda.’) as it is in Afghanistan or anywhere in the world that al-Qaeda and ‘associated forces’ operate. But that broad global-battlefield interpretation isn’t universally accepted, even among many members of the US Congress that enacted the AUMF.
  • The memo contemplates that Awlaki’s US citizenship bestows some protections, even in Yemen, under the Fifth Amendment’s Due Process Clause and the Fourth Amendment. As regards the Fifth Amendment, the memo again points to Hamdi, which uses a Mathews v. Eldridge balancing test. In a scenario where a US citizen/enemy combatant poses a continued and imminent threat, the Justice Department attorneys argue that the public interest far outweighs the private interest of guaranteeing due process. Though the memo also acknowledges that Awlaki’s targeting constitutes a ‘seizure’ under the Fourth Amendment, the memo again points to the ‘reasonableness’ balancing tests elucidated by the Supreme Court in prior rulings on the constitutionality of seizures.

Nevertheless, the true heart of this case isn’t necessarily the black-letter legal reasoning, fascinating and controversial though it may be. Throughout the memo, the Justice Department attorneys essentially assume Awlaki’s guilt as fact. That’s fine, because no one was asking the Office of Legal Counsel to assess Awlaki’s guilt. But it’s one thing to argue that the AUMF applies in full force to the US government’s ability to target enemy combatants who are US citizens, and it’s quite another thing to argue that Awlaki was an enemy combatant in the first place.

Even if you are willing to defer to the Obama administration’s interpretation on all of the issues of the law involved — the applicability of the AUMF, the applicability of the public authority exception, the non-applicability of the Fifth Amendment, the Fourth Amendment or any mitigating factors that accrue on the basis of US citizenship — we still don’t know how the US government determines how a US citizen can be lawfully targeted for legal force.

The most relevant question, still unanswered, is how the US government concluded that Awlaki crossed the line from ‘preacher spewing noxious opinions’ to ‘operational al-Qaeda militant.’

First, what specific actions did Awlaki take that caused him to be enemy combatant?

Secondly, on the basis of what evidence did the US government determine that Awlaki was an enemy combatant?  

Finally, does anything about the process that the US government deployed in targeting Awlaki meet any kind of standards for due process, let alone those typically granted to US citizens under the Fifth Amendment?

On all three questions, we don’t know the answer because the Obama administration won’t release any information. Until and unless it does, the evidentiary standard for assassinating a US citizen abroad seems to be ‘when high-level government officials  conclude it.’ Continue reading What’s the factual basis for killing Awlaki? →

United States

The cynical politics behind the Benghazi ‘scandal’

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gowdy

I’m always super-hesitant to jump into commentary on American politics, mostly because there’s so much to learn about politics and policy elsewhere in the world. USflag

But the decision by the US House of Representatives and House speaker John Boehner on Thursday to form a select committee to ‘investigate’ the Benghazi attacks is one of the reasons I find US politics so utterly discouraging.

A select committee is a ‘special’ committee created for a specific, targeted purpose. The House typically creates a select committee when one or more of the existing House committees don’t have enough authority or capacity to carry out that purpose. For example, between 2007 and 2011, the House, under Democratic control, authorized a select committee on energy independence and global warming.

Of all the mistakes that US president Barack Obama has made in six years in foreign policy, the Republican leadership has generally focused on the Benghazi sideshow — at the expense of more fundamental and, constitutionally controversial matters.

Why ‘Benghazi’ has become such a spectacle

It’s easy to understand why ‘Benghazi’ makes for such a sensational affair. The attack left four US personnel, including Christopher Stevens, the US ambassador to Libya, dead. It left the Obama administration, just weeks before a presidential election, slack-jawed to explain why US security failed so spectacularly.

Add to that the post-Watergate alchemy, whereby shouting ‘cover-up’ can spin routine politics into scandal, a White House that’s been reluctant, perhaps understandably, to work enthusiastically with its Congressional interlocutors, and a zero-sum political environment where House Republicans show, time after time, that they are willing to take extraordinary measures to achieve certain objectives (e.g., last autumn’s government shutdown, routine debt ceiling crises).

It’s easy to see the political advantage for Republicans in opening a select committee to investigate the matter. Trey Gowdy (pictured above), the two-term congressman from South Carolina, who will head the committee, is already talking about the investigation in terms of a ‘trial,’ with Gowdy and his committee as the prosecution and the Obama administration as the defense. Continue reading The cynical politics behind the Benghazi ‘scandal’ →

Lebanon, Syria, United States

U.S. move to support anti-Assad allies jeopardizes Lebanon’s stability

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Hassan Nasrallah

The United States doesn’t typically like to hand gifts to Hassan Nasrallah, the longtime leader of Hezbollah, the Shi’a militia that remains a key player not only in the domestic politics of Lebanon, but throughout the Middle East. freesyriaUSflagSyria Flag IconLebanon

But when news broke last Friday that U.S. president Barack Obama was preparing U.S. assistance to arm Syrian rebels in their fight against Syrian strongman Bashar al-Assad, that’s in effect what the United States has done by broadening the two-year civil war in Syria, a conflict that neighboring, vulnerable Lebanon has largely managed to avoid in the past two years.

Hezbollah’s recent military mobilization against the mostly Sunni rebels, however, in support of Assad, was already rupturing the national Lebanese determination to stay out of the conflict.  The U.S. announcement of support for the rebels, however tentative, gives Hezbollah a belated justification for having expanded its own military support to Assad, and risks further internationalizing what began as an internal Syrian revolt against the Assad regime.

The U.S. decision to support anti-Assad rebels

The United States is signaling that it will provide small arms and ammunition to only the most ‘moderate’ of Syria’s rebels, though not the heavier anti-aircraft and anti-tank weaponry that rebel leaders have said would make a difference.  But even if the Obama administration changed its mind tomorrow, the damage will have already been done in the decision to back the largely Sunni rebels.  No matter what happens, Hezbollah will now be able to posture that it’s fighting on behalf of the entire Muslim world against Western intruders rather than taking sides in a violent sectarian conflagration between two branches of Islam.

Supporters of U.S. intervention credibly argue that Hezbollah’s decisive intervention earlier in May and in June in Qusayr, a town in western Syria, led to an Assad victory that will inevitably make Syria’s civil war longer and deadlier.  Hezbollah’s decision to intervene on behalf of Assad was a key turning point that marked a switch from indirect and clandestine support to becoming an outright pro-Assad belligerent in Syria, which brings tensions ever closer to exploding in Lebanon.  Furthermore, Russian support for Assad, Turkish prime minister Recep Tayyip Erdoğan’s increasingly strident opposition to Assad, as well as implicit Iranian support for Hezbollah, means that Syria is already a proxy for geopolitical positioning, whether U.S. policymakers like it or not.

But that doesn’t mean that the active support of the United States will suddenly make things better in Syria — after all, the United States has a controversial track record over the past decade in the Middle East.  It’s winding down a 12-year war in Afghanistan that, though it pushed the Taliban from power within weeks in 2001, has done little to establish lasting security or foster a truly national government.  Its 2003 invasion of Iraq, which toppled one of the two Ba’athist regimes in the Middle East in removing Saddam Hussein from power, and the subsequent U.S. occupation still failed to prevent vicious Shi’a-Sunni sectarian fighting that approached the level of civil war between 2006 and 2008 and that still simmers today.

It’s the same familiar kind of bloody sectarian violence that now features in Syria, the remaining Ba’athist regime in the Middle East.

Moreover, the risks to Lebanon are now even more staggering.  Lebanon, which had been set to hold national elections last weekend on June 16, has instead postponed those elections indefinitely, because negotiations among Lebanon’s various religious confessional groups to draft a new election law have taken a backseat to the more pressing task of keeping the country together.

The U.S. came to its decision in light of a determination that Assad had used chemical weapons against at least a small segment of the rebels, thereby crossing a ‘red line’ that Obama established in August 2012 in the heat of the U.S. presidential campaign last year.  But as The Washington Post‘s Ernesto Londoño reported last week, U.S. advisers had already been working quietly with Jordanian officials for months in order to reduce the chances that Syria’s stockpiles of chemical weapons will fall into misuse by either the Assad regime or by the opposition.

It still remains unclear just what the Obama administration believes is the overwhelming U.S. national interest in regard of Syria — though the Assad regime is brutal, repressive and now likely guilty of war crimes, there’s not necessarily any guarantee that a Sunni-dominated Syria would be any better.  Last Friday, U.N. secretary-general Ban Ki-moon indicated that he opposes the U.S. intervention in Syria because it risks doing more harm than good.

As Andrew Sullivan wrote in a scathing commentary last week, the forces that oppose Assad are a mixed bunch, and there’s no way to know who exactly the United States is proposing to arm:

More staggeringly, [Obama] is planning to put arms into the hands of forces that are increasingly indistinguishable from hardcore Jihadists and al Qaeda – another brutal betrayal of this country’s interests, and his core campaign promise not to start dumb wars. Yep: he is intending to provide arms to elements close to al Qaeda. This isn’t just unwise; it’s close to insane….

Do we really want to hand over Syria’s chemical arsenal to al Qaeda? Do we really want to pour fuel on the brushfire in the sectarian bloodbath in the larger Middle East? And can you imagine the anger and bitterness against the US that this will entail regardless? We are not just in danger of arming al Qaeda, we are painting a bulls-eye on every city in this country, for some party in that religious struggle to target.

I understand why the Saudis and Jordanians, Sunni bigots and theocrats, want to leverage us into their own sectarian warfare against the Shiites and Alawites. But why should America take sides in such an ancient sectarian conflict? What interest do we possibly have in who wins a Sunni-Shiite war in Arabia?

The ‘rebels’ are, of course, a far from monolithic unit — the anti-Assad forces include all stripes of characters, including the Free Syria Army, a front of former Syrian army commanders dismayed at Assad’s willingness to commit such widespread violence against the Syrian people, but also including more radical Islamist groups such as the Syria Islamic Front, the Syria Liberation Front and even groups with non-Syrian leaders with global links to al-Qaeda, such as Jabhat al-Nusra, which is comprised of radical Salafists who want to transform Syria into an Islamist state.

Liberal interventionism strikes again

When Obama announced earlier this month that he was promoting Susan Rice as his new national security adviser and Samantha Power as his nominee to be the U.S. ambassador to the United Nations, I argued that it was a victory for liberal interventionists within Obama’s administration and that it could mean that the United States takes a stronger humanitarian interest in Syria.  Many other commentators, such as Wonkblog‘s Max Fisher, downplayed that possibility, arguing that their promotions meant ‘not much’ for U.S. policy on Syria, and that ‘there is good reason to believe that Power and Rice are not about to change U.S. policy in Syria.’

That, of course, turned out to be a miscalculation.  Less than 10 days after the Rice/Power announcement, the Obama administration is now ratcheting up its involvement in the Levant on a largely humanitarian, liberal interventionist basis, with the plausible possibility that a U.S.-supported no-fly-zone could soon follow.

The key fear is that the Obama administration’s ‘humanitarian’ response may result in an even more destabilizing effect on Lebanon. Continue reading U.S. move to support anti-Assad allies jeopardizes Lebanon’s stability →

United States

Questions on the U.S. war on terror, Obama’s big speech and its effect on world politics

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dronetanamo

There’s a lot to unpack from the wide-ranging speech that U.S. president Barack Obama gave this afternoon on the United States and its ongoing military action to combat terror organizations.USflag

I got the sense that Obama’s been anxious to make this speech for some time and to make the terms of debate over targeted attacks from unmanned aircraft — ‘drones’ — public.  The speech itself came after U.S. attorney general Eric Holder admitted in a letter for the first time that U.S. drones killed Anwar al-Awlaki in Yemen, as well as three other U.S. citizens accidentally.  It’s important to recall, furthermore, that Obama only first publicly acknowledged the drone strikes in Pakistan last year during an online chat.

It’s far beyond my blog’s realm to delve far into the speech in specificity — Benjamin Wittes has already done that in a series of blog posts (here and here) at Lawfare that are more articulate than anything I could produce in such a short time frame.  But when the president of the United States delivers a wide-ranging address on the U.S. war on terror, it has so many effects on world politics that it’s impossible not to think about how policy may change in the remaining years of the Obama administration.

Those policy decisions are incredibly relevant to international law and politics, but also in the domestic politics of two dozen countries — Pakistan, Yemen, Iraq, Afghanistan, Somalia, and so on.

What I do have, however, are a lot of questions that remain following the speech — perhaps even more than I had before I watched the speech.

  • Associated forces.  Obama mentioned al-Qaeda’s ‘associated forces’ four times, but what exactly is an associated force?  The lack of any meaningful definition lingered awkwardly with every mention.  In many ways, this goes to the heart of the legal issue with the drone strikes in places like Yemen and Somalia, and whether they’re even authorized under the Authorization to Use Military Force (AUMF).  Al-Qaeda in the Arab Peninsula (AQAP) and al-Qaeda in the Islamic Maghreb (AQIM) share a name, and key links, but it’s really difficult for me to believe that impoverished radical Yemenis or Tuaregs are really so associated with the original iteration of al-Qaeda that Osama bin Laden led in 2001. Somalia’s al-Shabab is often described as a home-grown al-Qaeda, but is it an associated person? It’s even more doubtful than AQAP and AQIM.  Hamas and al-Qaeda are certainly mutually sympathetic and may well have mutual ties over the past two decades, but does that make Hamas an associated force?  In the same way, the Taliban in Afghanistan is not affiliated with the Tehrek-e-Taliban Pakistan (i.e., the Pakistani Taliban), but they’ve been a particular target of the Obama administration’s drone strikes in Pakistan — so much so that drone strikes were a top issue in Pakistan’s recent national elections.  So there’s a real question as to whether those actions legal — if those targets aren’t associated forces, the targets aren’t subject to the use of military force under the AUMF.
  • The precision of future drone strikes.  Obama has committed to more judicial use of drone strikes that have, as Obama admitted, killed civilians in the past, and though he didn’t exactly outline it in his speech, it’s reported that the U.S. military will take over some of the role that the Central Intelligence Agency has played in the drone strikes in recent years.  Nonetheless, the CIA has been reported to have used so-called ‘signature strikes,’ which target young men who live in areas known to be dominated by radical terrorist groups, though the strikes aren’t based on specific identification or intelligence that ties the targets to clear engagement against the United States.  Obama didn’t mention ‘signature strikes’ today.  But he argued that the use of drones is ‘heavily constrained’ and further bound ‘by consultations with partners’ and ‘respect for state sovereignty,’ and that drone strikes are only waged against terrorists ‘who pose a continuing and imminent threat’ when there are not other governments ‘capable of addressing’ that threat,’ and only when there’s a ‘near-certainty that no civilians will be killed or injured.’  That’s a much higher standard than what’s been reported in the past.  So was Obama describing past policy on drone strikes or future policy? What do assurances of more precision in the future mean when we don’t know the level of care with which the drone strikes have been effected in the past?
  • The oversight of future drone strikes.  It’s also unclear how the Obama administration believes oversight should be handled.  Obama, in his speech, noted that he’s asked his administration to review proposals for extending oversight on drone strikes, and he outlined several options, including something similar to the FISA courts that authorize electronic surveillance of U.S. citizens in the fight against terrorism.  But he’s in year five of his administration — shouldn’t this be something that his administration has already considered?  Will his administration be able to enact a system in time for Obama’s successor?  Will it even be based in statute so that it’s binding on future administrations?  All of this is unclear. Continue reading Questions on the U.S. war on terror, Obama’s big speech and its effect on world politics →