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

7 Ways for Obama to REALLY Earn that Nobel Peace Prize

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Photo: Tim Sloan/AFP/Getty Images

At the local level, Americans are demonstrating a strong commitment to advancing human rights. In recent elections, voters legalized marriage equality in nine states and passed the DREAM Act to expand educational opportunities for undocumented residents in Maryland. In addition, legislators in four states abolished the death penalty. The message to the nation’s leaders seems to be this: human rights still matter, and the task of “perfecting our union” remains incomplete.

As President Obama prepares to give his second inaugural address, he should embrace an ambitious rights agenda: enhancing our security without trampling on human rights; implementing a foreign policy that hold friends and foes alike accountable for human rights violations; and ensuring human rights for all in the United States without discrimination.


Measured against international norms and his own aspirations, President Obama’s first term record on human rights merits an “incomplete.” While he made the bold move of issuing an executive order to close Guantánamo on his second day in office, he has yet to fulfill that promise. The U.S. government’s reliance on lethal drone strikes is growing steadily, but the administration has provided no clear legal justification for the program. Congress has abrogated its responsibility to exercise meaningful oversight of this most ubiquitous element of the “global war on terror,” a paradigm which is in and of itself problematic. Although President Obama has on occasion stood up for human rights defenders abroad — in China, Iran, Russia and Libya — his administration has often muted criticism when it comes to U.S. allies, in the Middle East, Africa and Europe.


Missing the Point

As originally posted on the Daily Kos

The former Head of the CIA, General Michael Hayden, has publicly stated his concern that America’s allies will be reluctant to work with American intelligence agencies following the release of the OLC memos by the Obama administration. One wonders where he has been for the past five years.

America’s allies began to express concern about working closely with US intelligence agencies almost from the moment that details of America’s treatment of war on terror detainees began leaking out.

In 2005 the Italian authorities initiated a criminal investigation into the CIA-led extraordinary rendition of Osama Mustafa Hassan Nasr to Egypt. The Italians issued twenty-two arrest warrants for members of the CIA team, including one for the Head of the CIA Station in Rome.

In 2006 Germany opened an investigation into the extraordinary rendition of Khaled El-Masri, a victim of mistaken identity who was tortured for five months at a CIA black site in Afghanistan. German prosecutors issued thirteen arrest warrants for US personnel involved in the case.

The former Director General of the British Security Service (MI5), Dame Eliza Manningham-Buller, told a British Parliamentary Intelligence and Security Committee (ISC) in 2007 that her organization had reevaluated the way that it worked with its US counterparts: “We certainly now have inhibitions… greater inhibitions than we once did.”

The Head of the British Secret Intelligence Service (MI6), Sir John Scarlett, similarly told the ISC that his officers sought “credible assurances” from the US that any action taken on the basis of intelligence provided by UK agencies would be “humane and lawful” and that when such assurances were lacking “we cannot provide the information.”

The Canadian government has paid compensation of CDN$10.5m to another innocent victim of the CIA’s extraordinary rendition program, Maher Arar, who was wrongly identified as a terrorist suspect and shipped to Syria. Just last month Spain opened an investigation into the alleged torture of five Spanish nationals in US custody, naming six senior members of the Bush administration as suspects.

America’s allies have been appalled by US actions in the Global War on Terror, not by the so-called lack of discretion of the Obama administration. This is no secret. Indeed, these stories have been widely reported around the world. For a former spook General Hayden is remarkably ill-informed.

Both Illegal and Dumb

This weekend saw the publication of two powerful opinion pieces on the futility of using torture as an interrogation tool.  Writing in The (London) Times on Friday General Lord Guthrie, the former Chief of the UK Defense Staff, argued that the use of torture was “both illegal and dumb.” Drawing on Britain’s bitter experience using coercive interrogation tactics in Northern Ireland, Lord Guthrie continued:

“Western use of torture to counter terror has been a propaganda coup for al-Qaeda and a recruiting sergeant for its global jihad. Our hypocrisy has radicalised our enemies and corroded the power we base on our proclaimed values. We save more lives in the long term by rejecting torture than we do by perpetrating it.”

In addition to serving successively in two of Britain’s most senior military posts, Lord Guthrie spent almost a decade as an officer in Britain’s elite Special Air Service (SAS) during which period he served in Aden, the Gulf, Malaysia and East Africa. The SAS fulfils the same counterterrorist role as America’s Delta Force. Lord Guthrie also served in Northern Ireland with the Welsh Guards. The full article (Torture uses the body against the soul) can be accessed at www.timesonline.co.uk.

On Sunday the News in Review section of The New York Times featured an article by Ambassador Donald P. Gregg, a thirty year veteran of the Central Intelligence Agency who served as the National Security Adviser to Vice-President George H. W. Bush during the Reagan administration.

Ambassador Gregg had been responsible for intelligence operations in ten Vietnamese provinces between 1971-72 and he described how his South Vietnamese counterpart had routinely tortured prisoners, producing a great deal of information much of which proved to be false.  By contrast Ambassador Gregg’s team employed “more humane methods” and generated more accurate intelligence.  He concludes:

“The key to successful interrogation is for the interrogator — even as he controls the situation — to recognize a prisoner’s humanity, to understand his culture, background and language. Torture makes this impossible.”

Ambassador Gregg’s article (Speaking with the Enemy) can be accessed at www.nytimes.com.

It is fashionable to portray calls for a return to due process, American values and human rights as a liberal cause. In reality, as the contributions from Lord Guthrie and Ambassador Gregg demonstrate, it is a cause that attracts a great deal of support from among professional military, law enforcement and intelligence personnel because they know effective counterterrorism is perfectly compatible with democratic principles.

A presidential pardon would not preclude accountability

The worth of a law is in its enforcement; if a law is not enforced, then it has no more value than a platitude, aspiration, or preference.  Because of this reason, one of AIUSA’s CTWJ campaign goals 100 days goals for the new administration is “accountability.”  Or in other words, AIUSA will demand that the government account for illegal or wrongful conduct of its employees or agents in the “war on terror.”

At first glace, a general presidential pardon (which seems likely in some form) threatens the accountability process.  But as I explain below, a pardon will likely only have a limited affect upon accountability.

As a general matter, a pardon precludes the US from prosecuting someone for criminal acts covered by the pardon.  However, accountability comes in many forms, not the least of which is a process resembling a truth commission.

South Africa's Truth and Reconciliation Commission

South Africa


Congress has authority to summon witnesses to testify in hearings and a pardon does not limit this congressional power.  First, witnesses will have few, if any, 5th amendment rights protecting them from self-incrimination if those witnesses previously received a pardon.  If a witness has immunity, then there is no legal justification for that person to invoke the 5th amendment.  Second, a pardon does not protect a person from prosecution for future crimes.  If a person subject to a pardon refuses to testify, then congress can institute contempt proceedings against that individual.

There is also a question whether a pardon really protects US citizens from criminal liability.  Genocide, torture, or other violations of the law of are grave breaches of international law.  Grave breaches of international law trigger a doctrine called “universal jurisdiction,” meaning a person may be prosecuted by any country that obtains control over the person to be tried.  So, a person subject to a pardon for grave breaches of international law may be immune from prosecution in the US but remain subject to prosecution in any other country.  And if a person has received a presidential pardon but is detained overseas, then that county cannot extradite the American citizen back to the US for prosecution because the US will be precluded from trying the individual in American courts due to the broad application of the pardon.

So while a presidential pardon may create procedural or legal challenges to the accountability process, a pardon will not derail the accountability process.

There Is No Justification In Keeping Gitmo Open

Below is my reply on the Wall Street Journal’s Opinion Piece of Nov. 4, 2008: Guantanamo Revelation.

I served in the military for 14 years, including three deployments to the Middle East. My last deployment was to Iraq for Operation Iraqi Freedom and I remain deployed in Baghdad after its fall until December, 2003. As an Arabic speaker, I worked closely with Arabs of nearly all nationalities. I had many frank discussions. In discussing the difference between the US and Saddam’s Iraq, I could always point to the legal system in the US as a venue for any citizen to protest their grievances and to protect their constitutional rights. In contrast, I could discuss Saddam’s closed and often secret state security courts, arbitrary detentions, and prolonged arrest of state enemies without trial. This point became lost on Arabs after Gitmo continued to operate as it has over the last 7 years….7 years in which 775 people have been detained, approximately 250 remain in detention, and only two have faced anything resembling a trial.

If a Gulag is where Soviet officials sent enemies of the state, whether real or perceived, to some remote outpost and then removed the prisoners’ ability to challenge the legality of their detention or have a timely and fair trial, then GITMO is a gulag in all but name only. Its reputation as a gulag is not false, but well earned. SEE THE REST OF THIS POST

Get Ready to Close Gitmo and Stop Torture

President Bush signs the Military Commissions Act, October 17, 2006.

President Bush signs the Military Commissions Act, October 17, 2006.

As soon as the next president of the United States is elected, we’ll go live with an action calling on him to take immediate steps in the first 100 days of his term to close Guantanamo, eradicate torture and ill-treatment, and end impunity for human rights abuses.

Stay tuned and be ready to take action. We’ll need you to send emails and write letters to the president-elect.  Check back here or go to www.amnestyusa.org/100days

Need inspiration? Check out The Video the CIA Doesn\’t Want You to See

Want to take action now? Help the Uighurs