Why Drone Death Courts are a Terrible Idea

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Public thirst is growing for more information about the Obama administration’s death-by-drone program and what can be done to ensure US policies do not authorize unlawful killings— whether of a US citizen or anyone else. Unfortunately,  a number of commentators—including the editorial board of the New York Times—have proposed the idea of a special court to review the Obama administration’s kill list, along the lines of the Foreign Intelligence Surveillance Court, which reviews executive surveillance and search requests in espionage or terrorism cases. It’s a terrible idea that underscores how far from basic human rights principles the “global war” approach to countering terrorism has taken the US government.

A secret drone death-warrant court, would in some sense be issuing a warrant of execution, without the condemned person ever knowing that a “charge” has been laid, that a “trial” has taken place, or that a “verdict” and “sentence” has been passed, let alone being able to defend themselves in the proceedings in any way.  If “global war” thinking hadn’t permeated so much of the way the US government thinks and talks about how to deal with the threat of terrorism, the proposal by some to establish a special court that would secretly review and approve government proposals to conduct lethal drone strikes would immediately be rejected as a non-starter that misses the point.


Posted in USA

Drones: The Known Knowns

Pakistan drone attack

Pakistani tribesmen carry the coffin of a person allegedly killed in a US drone attack. (Photo by THIR KHAN/AFP/Getty Images)

On Monday John Brennan, the President’s adviser on Homeland Security and Counterterrorism, popped up at the Woodrow Wilson Center to give a major policy speech on the “ethics and efficacy” of drone use.

Brennan’s argument had two main planks: That drones work and that their use is entirely legal. Both claims deserve close examination because neither is quite as simple as it seems.

In a classic rhetorical device Brennan threw out perhaps the most contentious aspect of his analysis as though it was a given, stating that “as a matter of international law, the United States is in an armed conflict with al-Qa’ida, the Taliban, and associated forces.”


Welcome to the War

Update 12/15: The U.S. House of Representatives passes the NDAA.

US soldier marine

© Bay Ismoyo/AFP/Getty Images

The passage of the National Defense Authorization Act (NDAA) through the Senate last Thursday saw the culmination of a ten-year crusade by Senator Lindsay Graham (R-SC) to make the law of war apply on US soil.

In many ways Senator Graham is simply following the logic of the Global War on Terror frame to its inevitable conclusion: If we are at war with Al Qaeda all around the world then there is no good reason why US soil should be excluded.

Senator Graham’s avowed objective is to allow for the military detention of suspected Al Qaeda, Taliban or otherwise affiliated terrorists captured on US soil, but of course detention is not the only arrow in the military quiver.


Act Now or Gitmo Never Ends

© US DoD

When Congress returns from its summer recess in September one of the first tasks on its agenda will be hammering out a final draft of the National Defense Authorization Act (NDAA).  Unless we take action now this bill will lay the foundation for a permanent military prison camp at Guantanamo Bay.

As things currently stand, both the House and Senate have both produced language in their respective drafts of the NDAA that seeks to redefine the authority under which the President conducts the ‘war’ on al-Qaeda, the Taliban, and ‘associated forces’.

One lingering concern in Congress is that the original Authorization for the Use of Military Force (AUMF) passed in the aftermath of the September 11th attacks failed to create a framework under which to detain private individuals captured during military operations. SEE THE REST OF THIS POST

Is Gun Ownership America's Most Resilient Value?

Adam Gadahn, a US convert to Islam who has been indicted for treason in the United States, making a statement. (AFP/Getty Images)

Last week Al Qaeda issued its first major propaganda video since bin Laden’s death calling for further attacks on the American homeland and no one seems to have paid the blindest bit of attention.

The video was issued by Adam Gadahn, a Californian-born Al Qaeda fighter and propagandist who was frequently named as a potential successor to bin Laden in the immediate aftermath of the Abbottobad operation.

Born Adam Pearlman, Gadahn, who is also known as Azzam the American, converted to Islam in the late 1990s and moved to Pakistan where he joined Al Qaeda. Quite a switch for a kid who had once formed a one-man death metal band called Aphasia and wrote articles for the music fanzine Xenocide.


Three Words of Omission When It Comes to Torture

By Matthew Alexander, former senior military interrogator

Matthew Alexander

Since the killing of Osama bin Laden last month in Abbottabad, Pakistan, the torture supporters have been out in full force to credit the success to Bush Administration policies such as torture.

Retired General Michael Hayden wrote in the Wall Street Journal that to deny that waterboarding provided important intelligence information is the equivalent of being a birther.  And Retired Army Major General Patrick Brady, a Medal of Honor Recipient from Vietnam, argued that waterboarders are heroes in a recent Op-Ed in the San Antonio online forum.  They join the ranks of Donald Rumsfeld, Dick Cheney, Marc Thiessen, Michael Mukasey, and, of course, the former President himself, George W. Bush.

But I challenge you to search all the articles and interviews done by these men for three key phrases: 1) World War II interrogators, 2) Long-Term, and 3) George Washington.  You won’t find them.  And there’s a reason why.


Back to Basics: A Military Commissions Primer

The announcement that the Obama administration plans to refer more cases to the Military Commissions process rather than federal court has set off another round of debate about the nature of threat posed by Al Qaeda and its surrogates, and it is worth reiterating some of the positions that Amnesty takes on the Global War on Terror paradigm.

First and foremost, international humanitarian law conceives of just two categories of armed conflict: international and non-international. International armed conflicts are fought exclusively between sovereign states, not between states and non-state actors. Osama bin Laden can no more declare war on the United States than you or I can.

Non-international armed conflicts — for example, civil wars, rebellions, insurgencies — involve fighting between regular state armed forces and identifiable armed groups, or between armed groups fighting one another, but only within the territory of a single State. There are rules that govern both international and internal armed conflict but they differ in certain important respects. Some basic rules — like Common Article 3 of the Geneva Conventions — apply across the board.

When the law of international armed conflict or the law pertaining to internal armed conflict applies can differ from one case to the next. The legal standing of Al Qaeda as an entity in Afghanistan may differ to its standing in Pakistan, which in turn may be different to its standing in Yemen, Europe or even the United States.

Confused? You should be. In law, this is all a matter of argument as much as fact. It is complicated and often uncertain.


Keep America Scared

Are there two individuals more important to Al Qaeda’s agenda anywhere on the planet than Dick Cheney or his daughter Liz?

As frightening as the specter of terrorism undoubtedly is, there is no danger that terrorists will ever seize control of our cities or our government. There is no likelihood that terrorists will kill as many Americans next year as drunk drivers, heart disease or depression.

Al Qaeda only poses a meaningful threat to our way of life if we give in to our fear and change it ourselves. That is precisely what the Keep America Safe Foundation would have us do. They seem to forget that there is more to America than just a flag and rousing patriotic music. America is free speech, the rule of law, and inalienable human rights.

We cannot call ourselves the land of the free if we lock up individuals without trial on the basis of secret intelligence. You don’t trust the government to run healthcare? Why on earth would you trust it to effectively evaluate rumor, gossip and innuendo from half a world away?

We cannot call ourselves the land of the free if we torture people. You don’t think waterboarding is torture? The Spanish Inquisition, the Nazi Gestapo, French colonial forces in Algeria, Stalin’s NKVD, and the Japanese Kempeitai all waterboarded prisoners. Look around at the company you are keeping.

We cannot call ourselves the land of the free if we stigmatize lawyers for defending criminal suspects – no matter what they are charged with. You can’t have fair trials if only one side turns up in court.

Terrorist strategists know that they lack the military power to overcome their enemies and their campaign is not intended to engage and defeat our armed forces. Rather they are engaged in a form of political jujitsu designed to turn our own strength against us.

Terrorists seek to imprison us in a prison of our own making and in Dick and Liz Cheney they have found the perfect jailors. Terrorists rely on message generators to spread their amped up message of fear and terror. The Cheneys have embraced this role.

Terrorists are usually forced to rely on jihadist websites, radical preachers, and grainy YouTube videos to try to intimidate their opponents but when the Keep America Safe Foundation stepped up to the plate Al Qaeda lucked out. Bin Laden could not buy the kind of publicity that this Foundation gives him free of charge.

These 21st Century know nothings see political advantage in inflating the threat posed by Al Qaeda and investing bin Laden and his gang of criminals with a significance and mystique they do not deserve. In doing so, they have become Al Qaeda’s unwitting fifth column undermining American society from within with their new brand of McCarthyism.

The constitution is no mere scrap of paper. It is the foundation on which America is built. The values enshrined in this document by the founding fathers – who, let’s not forget, included a lawyer who defended enemy soldiers and a General who refused to torture – are what make this country the envy of the world.

If we turn our back on the constitution, we turn our back on America.

In a recent interview on Meet the Press General David Petraeus described Guanatanamo, Abu Garaib, and the kind of “non-biodegradable” counterterrorism tactics embraced by the Keep America Safe Foundation as a stick the enemy can continually beat you with.

I don’t know about you but I would rather get my counterterrorism advice from a real frontline commander with years of field experience than a couple of beltway bandits who have never served in so much as a forward area.

Wake up America. It’s not about Al Qaeda. It is about us. It is about the kind of country we want to live in; whether we want to walk tall or cower in our bunkers. We can be that city on a shining hill envisaged by the founding fathers, or we can listen to the Keep America Safe Foundation and destroy this country to save it.

What Goes Around Comes Around

Our ad in the Farragut West Metro Station, Washington DC

Our ad in the Farragut West Metro Station, Washington DC

Last month I had the opportunity to meet with Tamil human rights defenders working to protect the rights of Tamil civilians displaced by the Sri Lankan government’s military campaign against the violent Armed Group known as the Tamil Tigers.

Displaced Tamils are confined to government run camps where conditions are harsh and there is no end to their detention in sight. Tamil and Sri Lankan human rights defenders are operating under great threat from the authorities and Sinhalese nationalist paramilitaries.

Journalists have been killed and activists have disappeared. An unmarked white van has been associated with several disappearances, evoking memories of the dirty wars of Latin America. The atmosphere in Colombo is increasingly one of fear and intimidation.

This is the context in which we learned earlier this month of a visit to Washington DC by the Sri Lankan Attorney General, Mohan Peiris, to meet with his American counterpart Eric Holder. SEE THE REST OF THIS POST

A Tale of Two Taliban

(Originally posted on Daily Kos)

In the last month, a spotlight has fallen on two sharply different terrorism cases that illuminate the best and worse of America’s efforts to defeat Al Qaeda:

  • The case of Mohammed Jawad, conducted with the gloves off, is a disaster.
  • The case of Bryant Vinas, conducted within the law, appears to be triumph.

Mohammed Jawad was detained in Kabul in December 2002 after a grenade was thrown at US soldiers, injuring three members of a patrol. Jawad’s age has not been established with any degree of certainty but it is not disputed that he was a minor at the time of the attack. According to Afghan government, he may have been as young as twelve.

Although the US government has yet to produce any credible evidence that Jawad was responsible for the attack – in July 2009 US District Court Judge Ellen Huvelle described the government’s case as “an outrage” and “riddled with holes” – he was labeled as a terrorist and eventually transferred to Guantanamo Bay. Read Amnesty International’s report on Jawad’s case.

Jawad was subjected to a range of so-called enhanced interrogation techniques including forced sleep deprivation and physical abuse. Judge Huvelle, who eventually heard Jawad’s habeas corpus petition, threw out every statement he made in US custody as “a product of torture”. On July 30, she ordered that Jawad be released by August 21.

Jawad has been illegally detained for more than six and a half years. Worse still – the United States tortured a child. And for what? Jawad could offer no actionable intelligence. The government can’t even prove he committed a crime. His detention has cost the American taxpayer hundreds of thousands of dollars. It is a lose-lose scenario emblematic of the dark side approach promoted by Dick Cheney.

Bryant Neal Vinas, alias Bashir al-Ameriki, a twenty-six year old Hispanic man from Long Island, converted to Islam in 2004 and travelled to Pakistan to make contact with Al Qaeda in late 2007 or early 2008.

Vinas received weapons training from Al Qaeda with a particular concentration on explosives. In September 2008, he took part in a rocket attack on a US military base in Afghanistan.

Vinas even agreed to undertake a suicide bombing, although his handlers let him off the hook. He was, in short, a terrorist who engaged in hostile acts against the United States.

In November 2008, he was arrested in Peshwar by the Pakistani authorities. Because Vinas was an American citizen he was not shipped to Guantanamo or Bagram but instead treated like an ordinary criminal and transferred to the custody of the FBI.

Vinas’ case was handled entirely within the American criminal justice system. He was interviewed by FBI investigators within the constraints of domestic US law and with all the protections that the US constitution affords US citizens.

Operating within these constraints experienced FBI agents were able to persuade Vinas to cooperate with the US authorities and provide valuable and timely intelligence regarding potential terrorist plot.

Federal prosecutors were able to build a strong case against Vinas successfully charging him with conspiracy to murder U.S. citizens, providing information to a terrorist organization, and receiving “military-type training” from a Al-Qaeda.

Vinas eventually pled guilty to these charges. He has agreed to appear as a key witness in a number of other terrorist trials and is currently a protected witness in the federal witness protection program living inside the United States.

What a contrast exists between these two cases – one effectively and efficiently handled within the law and the other, a Kafkaesque nightmare in which a minor has been abused and incarcerated for more than six years to no purpose whatsoever.

These two cases could not make it any plainer. Our criminal justice system not only can handle complex terrorism cases, it actually does a substantially better job of it than the cack-handed shadow warriors unleashed by the Bush administration.

The real tragedy is that this lesson seems to be lost on the Obama White House. Jeh Johnson’s admission before Congress that the administration may consider detaining individuals acquitted by the Military Commissions seems to set the stage for further miscarriages of justice and for yet further damage to America’s battered international reputation.

We don’t need to keep going down this path. There is a better way. We know how to do this smarter and we know how do this right. Just ask Bryant Vinas.