Category Archives: human rights

Obama continues to cloak his killing program in secrecy

The New York Times reports: Early in his first term, President Obama rejected the vehement protests of the Central Intelligence Agency and ordered the public disclosure of secret Justice Department legal opinions on interrogation and torture that had been written in the administration of George W. Bush.

In the case of his own Justice Department’s legal opinions on assassination and the “targeted killing” of terrorism suspects, however, Mr. Obama has taken a different approach. Though he entered office promising the most transparent administration in history, he has adamantly refused to make those opinions public — notably one that justified the 2011 drone strike in Yemen that killed an American, Anwar al-Awlaki. His administration has withheld them even from the Senate and House intelligence committees and has fought in court to keep them secret, making any public debate on the issue difficult.

But with the disclosure on Monday of a Justice Department document offering a detailed legal analysis of the targeted killing of Americans, the barricades of secrecy have been breached. Just as leaks of interrogation memos in 2004 under President Bush ignited a fierce public debate over torture, the report on the so-called white paper by NBC News instantly touched off a renewed, and better informed, public discussion about whether and when a president can order the execution of a citizen based on secret intelligence and without any trial.

The Justice Department prepared the white paper, an unclassified, 16-page document, to brief Congressional oversight committees in lieu of providing lawmakers with the far longer, classified memorandum that justified the killing of Mr. Awlaki, a New Mexico-born Sunni Muslim cleric who joined Al Qaeda’s branch in Yemen and died in an American drone strike there in September 2011. But the paper dovetails with the legal arguments in that still-secret document, as described to The New York Times in October 2011 by people who have read it.

In short, the Justice Department argued that it was lawful for the government to kill an American citizen if “an informed, high-level official” decided that the target was a ranking figure in Al Qaeda who posed “an imminent threat of violent attack against the United States” and if his capture was not feasible. While the administration’s basic legal conclusions had already been aired — including in speeches by Attorney General Eric H. Holder Jr. and other officials — the white paper provided a far more detailed legal justification.

Some human rights groups dismissed it in language reminiscent of their critiques of the Bush administration’s legal opinions on torture, taking particular aim at its flexible definition of what might constitute an “imminent” threat and the lack of any outside check on its claimed authority.

The American Civil Liberties Union called the paper “chilling.” A spokeswoman for Amnesty International said there was increasing evidence that American practices were “unlawful, violating the fundamental human right not to be arbitrarily deprived of one’s life.” [Continue reading…]

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CIA rendition: more than a quarter of countries ‘offered covert support’

The Guardian reports: The full extent of the CIA’s extraordinary rendition programme has been laid bare with the publication of a report showing there is evidence that more than a quarter of the world’s governments covertly offered support.

A 213-page report compiled by the Open Society Justice Initiative (OSJI), a New York-based human rights organisation, says that at least 54 countries co-operated with the global kidnap, detention and torture operation that was mounted after 9/11, many of them in Europe.

So widespread and extensive was the participation of governments across the world that it is now clear the CIA could not have operated its programme without their support, according to the OSJI.

“There is no doubt that high-ranking Bush administration officials bear responsibility for authorising human rights violations associated with secret detention and extraordinary rendition, and the impunity that they have enjoyed to date remains a matter of significant concern,” the report says.

“But responsibility for these violations does not end with the United States. Secret detention and extraordinary rendition operations, designed to be conducted outside the United States under cover of secrecy, could not have been implemented without the active participation of foreign governments. These governments too must be held accountable.” [Continue reading…]

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The Obama doctrine of unlimited power

Lawyers have much more interest in constructing lines of reasoning than they do in clear communication. For that reason, the Justice Department’s white paper on the targeted killing of Americans was written not so much to articulate the policies of the U.S. government but rather as part of a legal process designed to ensure that President Obama and other U.S. officials can avoid being prosecuted for murder.

Stripped to its bare bones, the argument runs like this:

I can kill you if I think that you want to kill me. And I can kill you now or whenever I choose if I have no way of knowing when you might try to kill me.

This isn’t a basis for self-defense; it’s a justification for premeditated murder.

Spencer Ackerman writes: “Imminence” used to mean something in military terms: namely, that an adversary had begun preparations for an assault. In order to justify his drone strikes on American citizens, President Obama redefined that concept to exclude any actual adversary attack.

That’s the heart of the Justice Department’s newly-leaked white paper, first reported by NBC News, explaining why a “broader concept of imminence” (.PDF) trumps traditional Constitutional protections American citizens enjoy from being killed by their government without due process. It’s an especially striking claim when considering that the actual number of American citizens who are “senior operational leader[s] of al-Qaida or its associated forces” is vanishingly small. As much as Obama talks about rejecting the concept of “perpetual war” he’s providing, and institutionalizing, a blueprint for it. [Continue reading…]

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Did Obama order killing of Americans then seek legal cover?

A white paper written by the Justice Department and leaked to NBC News, lays out the reasoning that supposedly provides grounds for the U.S. government to legally kill U.S. citizens — legal grounds that would explain how President Obama had the authority to order the assassination of Anwar al-Awlaki in Yemen on September 30, 2011.

Obama placed Awlaki on a CIA kill list in April 2010. The white paper was written, however, some time after September 16, 2011.

Although the memo is undated, it cites a speech given by John O Brennan at Harvard Law School on that date, so must have been written later, quite likely after Awlaki had been killed. This legal argument was being laid out long after Obama had ordered Awlaki’s killing, strongly suggesting that he first ordered the killing but only later asked the Justice Department to construct a legal justification for an action he had already set in motion.

NBC News reports: A confidential Justice Department memo concludes that the U.S. government can order the killing of American citizens if they are believed to be “senior operational leaders” of al-Qaida or “an associated force” — even if there is no intelligence indicating they are engaged in an active plot to attack the U.S.

The 16-page memo, a copy of which was obtained by NBC News, provides new details about the legal reasoning behind one of the Obama administration’s most secretive and controversial polices: its dramatically increased use of drone strikes against al-Qaida suspects abroad, including those aimed at American citizens, such as the September 2011 strike in Yemen that killed alleged al-Qaida operatives Anwar al-Awlaki and Samir Khan. Both were U.S. citizens who had never been indicted by the U.S. government nor charged with any crimes.

The secrecy surrounding such strikes is fast emerging as a central issue in this week’s hearing of White House counterterrorism adviser John Brennan, a key architect of the drone campaign, to be CIA director. Brennan was the first administration official to publicly acknowledge drone strikes in a speech last year, calling them “consistent with the inherent right of self-defense.” In a separate talk at the Northwestern University Law School in March, Attorney General Eric Holder specifically endorsed the constitutionality of targeted killings of Americans, saying they could be justified if government officials determine the target poses “an imminent threat of violent attack.”

But the confidential Justice Department “white paper” introduces a more expansive definition of self-defense or imminent attack than described by Brennan or Holder in their public speeches. It refers, for example, to what it calls a “broader concept of imminence” than actual intelligence about any ongoing plot against the U.S. homeland.

Michael Isikoff, national investigative correspondent for NBC News, talks with Rachel Maddow about a newly obtained, confidential Department of Justice white paper that hints at the details of a secret White House memo that explains the legal justifications for targeted drone strikes that kill Americans without trial in the name of national security.

“The condition that an operational leader present an ‘imminent’ threat of violent attack against the United States does not require the United States to have clear evidence that a specific attack on U.S. persons and interests will take place in the immediate future,” the memo states.

Instead, it says, an “informed, high-level” official of the U.S. government may determine that the targeted American has been “recently” involved in “activities” posing a threat of a violent attack and “there is no evidence suggesting that he has renounced or abandoned such activities.” The memo does not define “recently” or “activities.”

As in Holder’s speech, the confidential memo lays out a three-part test that would make targeted killings of American lawful: In addition to the suspect being an imminent threat, capture of the target must be “infeasible, and the strike must be conducted according to “law of war principles.” But the memo elaborates on some of these factors in ways that go beyond what the attorney general said publicly. For example, it states that U.S. officials may consider whether an attempted capture of a suspect would pose an “undue risk” to U.S. personnel involved in such an operation. If so, U.S. officials could determine that the capture operation of the targeted American would not be feasible, making it lawful for the U.S. government to order a killing instead, the memo concludes.

The undated memo is entitled “Lawfulness of a Lethal Operation Directed Against a U.S. Citizen who is a Senior Operational Leader of Al Qa’ida or An Associated Force.” It was provided to members of the Senate Intelligence and Judiciary committees in June by administration officials on the condition that it be kept confidential and not discussed publicly.

Although not an official legal memo, the white paper was represented by administration officials as a policy document that closely mirrors the arguments of classified memos on targeted killings by the Justice Department’s Office of Legal Counsel, which provides authoritative legal advice to the president and all executive branch agencies. The administration has refused to turn over to Congress or release those memos publicly — or even publicly confirm their existence. A source with access to the white paper, which is not classified, provided a copy to NBC News.

“This is a chilling document,” said Jameel Jaffer, deputy legal director of the ACLU, which is suing to obtain administration memos about the targeted killing of Americans. “Basically, it argues that the government has the right to carry out the extrajudicial killing of an American citizen. … It recognizes some limits on the authority it sets out, but the limits are elastic and vaguely defined, and it’s easy to see how they could be manipulated.”

In particular, Jaffer said, the memo “redefines the word imminence in a way that deprives the word of its ordinary meaning.”

A Justice Department spokeswoman declined to comment on the white paper. The spokeswoman, Tracy Schmaler, instead pointed to public speeches by what she called a “parade” of administration officials, including Brennan, Holder, former State Department Legal Adviser Harold Koh and former Defense Department General Counsel Jeh Johnson that she said outlined the “legal framework” for such operations.

Pressure for turning over the Justice Department memos on targeted killings of Americans appears to be building on Capitol Hill amid signs that Brennan will be grilled on the subject at his confirmation hearing before the Senate Intelligence Committee on Thursday.

On Monday, a bipartisan group of 11 senators — led by Democrat Ron Wyden of Oregon — wrote a letter to President Barack Obama asking him to release all Justice Department memos on the subject. While accepting that “there will clearly be circumstances in which the president has the authority to use lethal force” against Americans who take up arms against the country, it said, “It is vitally important … for Congress and the American public to have a full understanding of how the executive branch interprets the limits and boundaries of this authority.” [Continue reading…]

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JSoc: Obama’s secret assassins

Naomi Wolf writes: The film Secret Wars [sic — the actual title is Dirty Wars], which premiered at Sundance, can be viewed, as Amy Goodman sees it, as an important narrative of excesses in the global “war on terror”. It is also a record of something scary for those of us at home – and uncovers the biggest story, I would say, in our nation’s contemporary history.

Though they wisely refrain from drawing inferences, Scahill and Rowley have uncovered the facts of a new unaccountable power in America and the world that has the potential to shape domestic and international events in an unprecedented way. The film tracks the Joint Special Operations Command (JSoc), a network of highly-trained, completely unaccountable US assassins, armed with ever-expanding “kill lists”. It was JSoc that ran the operation behind the Navy Seal team six that killed bin Laden.

Scahill and Rowley track this new model of US warfare that strikes at civilians and insurgents alike – in 70 countries. They interview former JSoc assassins, who are shell-shocked at how the “kill lists” they are given keep expanding, even as they eliminate more and more people.

Our conventional forces are subject to international laws of war: they are accountable for crimes in courts martial; and they run according to a clear chain of command. As much as the US military may fall short of these standards at times, it is a model of lawfulness compared with JSoc, which has far greater scope to undertake the commission of extra-legal operations – and unimaginable crimes. [Continue reading…]

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Milan appeals court convicts 3 Americans in CIA kidnap case, throwing out earlier acquittals

The Associated Press reports: A Milan appeals court on Friday vacated acquittals for a former CIA station chief and two other Americans, and instead convicted them in the 2003 abduction of an Egyptian terror suspect from a Milan street as part of the CIA’s extraordinary rendition program.

The appeals court sentenced former CIA Rome station chief Jeffrey Castelli to seven years, and handed sentences of six years each to Americans Betnie Medero and Ralph Russomando. All three were tried in absentia at both levels. A lower court that convicted 23 other Americans in 2009 had previously acquitted the three citing diplomatic immunity.

The November 2009 convictions, which were held up on two levels of appeal, were the first anywhere in the world against CIA actors involved in a practice alleged to have led to torture.

None of the Americans tried in Italy have ever been in Italian custody, but they risk arrest if they travel to Europe and lawyers have in the past suggested that final verdicts would open the way for the Italian government to seek their extradition. No such action has yet been taken.

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2013 World Press Freedom Index — dashed hopes after Arab Spring

Reporters Without Borders: Last year’s index was marked by the Arab spring’s major news developments and the heavy price paid by those covering the protest movements. A range of scenarios has been seen in 2012, including countries such as Tunisia, Egypt and Libya, where regime change has taken place, countries such as Syria and Bahrain where uprisings and the resulting repression are still ongoing, and countries such as Morocco, Algeria, Oman, Jordan and Saudi Arabia, where the authorities have used promises and compromise to defuse calls for political and/or social and economic change.

Some of the new governments spawned by these protests movements have turned on the journalists and netizens who covered these movements’ demands and aspirations for more freedom. With legal voids, arbitrary appointments of state media chiefs, physical attacks, trials and a lack of transparency, Tunisia (138th, -4) and Egypt (158th, +8) have remained at a deplorable level in the index and have highlighted the stumbling blocks that Libya (131st, +23) should avoid in order to maintain its transition to a free press.

The deadliest country for journalists in 2012 was Syria (176th, 0), where journalists and netizens are the victims of an information war waged by both the Assad regime, which stops at nothing in order to crack down and impose a news blackout, and by opposition factions that are increasingly intolerant of dissent. In Bahrain (165th, +8) the repression let up slightly, while in Yemen (169th, +2) the prospects continue to be disturbing despite a change of government. Oman (141st, -24) fell sharply because of a wave of arrests of netizens.

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Torture and Zero Dark Thirty

David Bromwich writes: Zero Dark Thirty is a spy thriller about the tracking and killing of Osama Bin Laden. Good police work did it, the film says, and it aims to show what (in the extraordinary circumstances) good police work amounts to. Action movies have been the director Kathryn Bigelow’s métier, and Zero Dark Thirty is tense and well-paced. It has the kind of proficiency one associates with, say, The Hunt for Red October. It does not mean to compete with a film like The Battle of Algiers. There is no question here of taking up a complex historical subject and exploring it with a semblance of human depth. Rather, the movie accepts the ready prejudices and fears of its American audience, and builds up pressure for two hours to prepare the thrill and relief at the raid on Bin Laden’s compound in Abbottabad. The first two hours skip forward selectively to cover the trajectory of ten years. The final twenty-five minutes of action are portrayed almost in real time.

Until Americans stop indulging our elected officials in their appetite for secrecy, we will not know exactly what orders the Navy Seals carried into Abbottabad. Pretty clearly, it was a kill mission and not “Capture or Kill.” Zero Dark Thirty makes killing the personal preference of its heroine, Maya, a CIA agent who begins the hunt in September 2001 and whose relentless pursuit is clinched by success. When she talks to the Navy Seals team, she says she wants them to “kill him for me.” The “me” element in the international hunt, and its reflexive connection to revenge, is emphasized more than once. This overtly simplifies an area of moral doubt which the film in other ways simplifies covertly. Maya’s stamina, force, and drive somehow place her beyond challenge. By the end, her superiors at CIA are intimidated, and we feel they ought to be. Maya has no friends, and no life outside the hunt, but her determination is itself a sort of passion. It is, in fact, the only passion that is represented in the film.

How was Bin Laden found? Zero Dark Thirty tells us that it was done by the torture of detainees; by the collection and deduction of evidence from dossiers, videos, recorded phone calls and intercepted emails; and by tailing couriers. All of these methods the movie dispassionately records, and it affirms the efficacy of all. The narrative lacks the patience and tightness to illustrate many convincing particulars of the detective work. That it leaves us in the dark, however, is also part of the point. We Americans, the film is saying, must put ourselves in the hands of the experts who have mastered the darkness. [Continue reading…]

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Wyden letter to CIA director-nominee Brennan seeks legal opinions on killing of Americans

Press release from the office of Senator Ron Wyden: With the confirmation process for Deputy National Security Advisor John Brennan to be Director of the Central Intelligence Agency set to be begin shortly, U.S. Senator Ron Wyden (D-Ore.), a member of the Senate Select Committee on Intelligence, is asking Brennan to provide Congress with the secret legal opinions outlining the government’s ability to target and kill Americans believed to be involved in terrorism.

In a letter to Brennan [PDF] sent today, Wyden reiterated his concerns that the intelligence community, Justice Department and the Administration have not been adequately forthcoming to Congress on their legal justifications for targeting and potentially killing U.S. citizens believed to be involved in terrorism activities. He said that it is important that the legal opinions guiding these activities be released so that Congress and the American people can “have full knowledge of how the executive branch understands the limits and boundaries of this authority…”

“For the executive branch to claim that intelligence agencies have the authority to knowingly kill American citizens but refuse to provide Congress with any and all legal opinions that explain the executive branch’s understanding of this authority represents an alarming and indefensible assertion of executive prerogative,” Wyden wrote in the letter.

For more than two years, Wyden has been seeking these legal opinions and others but has either received insufficient responses to his inquiries or no response at all. He has asked that prior to the start of Brennan’s confirmation hearing in the Intelligence committee that he and other committee members and their cleared staffs are given these opinions and that written assurance be given to the committee that future legal opinions related to this topic will also be provided.

“I have an obligation from my oath of office to review any classified legal opinions that lay out the federal government’s official views on this issue, and I will not be satisfied until I have received them,” Wyden continued in the letter.

Wyden also asked for a list of countries in which the intelligence community has used its lethal counterterrorism authorities. He also is seeking declassification of secret legal opinions made by the Justice Department’s Office of Legal Counsel one of which regards common commercial service agreements. He has asked for this legal opinion to be revoked.

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Death of a prisoner

Laura Poitras writes: When President Obama pledged to close the Guantánamo Bay prison on his first day in office as president in 2009, I believed the country had shifted direction. I was wrong. Four years later, President Obama has not only institutionalized Guantánamo and all the horrors it symbolizes, but he has initiated new extrajudicial programs, like the president’s secret kill list.

In September 2012 I read the news that another prisoner at Guantánamo had died, and I knew I had probably met his family. I traveled to Yemen in 2007 with the idea of making a film about a Guantánamo prisoner. I went there with the Guantánamo lawyer David Remes. He met with families and delivered the news of their sons, brothers, fathers and husbands. I had hoped to film the journey of someone being released from Guantánamo and returning home. Five years later, I find myself making that film, but under tragic circumstances.

Adnan Farhan Abdul Latif recently died in solitary confinement at Guantánamo at age 36, after nearly 11 years of imprisonment there, despite never having been charged with a crime. Last month his body was returned to his family in Yemen, but we are left with many unanswered questions about his imprisonment and death.

Mr. Latif’s death is under investigation by the United States military, which claims he committed suicide from an overdose of prescription medication complicated by acute pneumonia. But that’s hard to take at face value. Why was he placed in solitary confinement when he was suffering from acute pneumonia? How could he have overdosed on medication, given the strict protocols at Guantánamo? Why did it take three months for the body to be returned to Yemen? And finally, why are his autopsy and toxicology report classified and being withheld from his family?

These questions are not just about Adnan Latif. They also address the injustices that our government has instituted and normalized in the war on terror.

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What John Brennan’s support for CIA torture meant for Sami al-Hajj

Amy Goodman writes: It takes courage to enter a warzone willingly, armed with a microphone and a camera as a journalist. That is what al-Jazeera cameraman Sami al-Hajj was doing in December 2001, as he was entering Afghanistan from Pakistan to cover the US military operations there.

While his colleague was allowed in, al-Hajj was arrested, in what was to be a harrowing, nightmarish odyssey that lasted close to seven years, most of it spent as prisoner 345, the only journalist imprisoned at Guantánamo Bay – without charge. Al-Hajj is out now, back at work at al-Jazeera and reunited with his family. His recollections of the horror of detention by the United States should be front and center in the forthcoming confirmation hearings for President Barack Obama’s choice to lead the CIA, John Brennan.

It has been 11 years since the Guantánamo prison was opened, and four years since President Obama promised to close it within a year.

“He speaks very eloquently [about] what many hundreds of other detainees suffered, who cannot tell their story,” Baher Azmy, legal director of the Center for Constitutional Rights, told me:

“The brutality he suffered in Afghanistan, the fact that he was turned over for political reasons or for a bounty, the arbitrariness of his detention in Guantanamo and the brutality of his treatment there.”

I sat down with Sami al-Hajj last month at al-Jazeera’s headquarters in Doha, Qatar. [Continue reading…]

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The torturers roam free while the whistleblower goes to jail

Scott Shane reports: Looking back, John C. Kiriakou admits he should have known better. But when the F.B.I. called him a year ago and invited him to stop by and “help us with a case,” he did not hesitate.

In his years as a C.I.A. operative, after all, Mr. Kiriakou had worked closely with F.B.I. agents overseas. Just months earlier, he had reported to the bureau a recruiting attempt by someone he believed to be an Asian spy.

“Anything for the F.B.I.,” Mr. Kiriakou replied.

Only an hour into what began as a relaxed chat with the two agents — the younger one who traded Pittsburgh Steelers talk with him and the senior investigator with the droopy eye — did he begin to realize just who was the target of their investigation.

Finally, the older agent leaned in close and said, by Mr. Kiriakou’s recollection, “In the interest of full disclosure, I should tell you that right now we’re executing a search warrant at your house and seizing your electronic devices.”

On Jan. 25, Mr. Kiriakou is scheduled to be sentenced to 30 months in prison as part of a plea deal in which he admitted violating the Intelligence Identities Protection Act by e-mailing the name of a covert C.I.A. officer to a freelance reporter, who did not publish it. The law was passed in 1982, aimed at radical publications that deliberately sought to out undercover agents, exposing their secret work and endangering their lives.

In more than six decades of fraught interaction between the agency and the news media, John Kiriakou is the first current or former C.I.A. officer to be convicted of disclosing classified information to a reporter.

Mr. Kiriakou, 48, earned numerous commendations in nearly 15 years at the C.I.A., some of which were spent undercover overseas chasing Al Qaeda and other terrorist groups. He led the team in 2002 that found Abu Zubaydah, a terrorist logistics specialist for Al Qaeda, and other militants whose capture in Pakistan was hailed as a notable victory after the Sept. 11 attacks.

He got mixed reviews at the agency, which he left in 2004 for a consulting job. Some praised his skills, first as an analyst and then as an overseas operative; others considered him a loose cannon.

Mr. Kiriakou first stumbled into the public limelight by speaking out about waterboarding on television in 2007, quickly becoming a source for national security journalists, including this reporter, who turned up in Mr. Kiriakou’s indictment last year as Journalist B. When he gave the covert officer’s name to the freelancer, he said, he was simply trying to help a writer find a potential source and had no intention or expectation that the name would ever become public. In fact, it did not surface publicly until long after Mr. Kiriakou was charged.

He is remorseful, up to a point. “I should never have provided the name,” he said on Friday in the latest of a series of interviews. “I regret doing it, and I never will do it again.”

At the same time, he argues, with the backing of some former agency colleagues, that the case — one of an unprecedented string of six prosecutions under President Obama for leaking information to the news media — was unfair and ill-advised as public policy.

His supporters are an unlikely collection of old friends, former spies, left-leaning critics of the government and conservative Christian opponents of torture. Oliver Stone sent a message of encouragement, as did several professors at Liberty University, where Mr. Kiriakou has taught. They view the case as an outrage against a man who risked his life to defend the country.

Whatever his loquaciousness with journalists, they say, he neither intended to damage national security nor did so. Some see a particular injustice in the impending imprisonment of Mr. Kiriakou, who in his first 2007 appearance on ABC News defended the agency’s resort to desperate measures but also said that he had come to believe that waterboarding was torture and should no longer be used in American interrogations.

Bruce Riedel, a retired veteran C.I.A. officer who led an Afghan war review for Mr. Obama and turned down an offer to be considered for C.I.A. director in 2009, said Mr. Kiriakou, who worked for him in the 1990s, was “an exceptionally good intelligence officer” who did not deserve to go to prison.

“To me, the irony of this whole thing is, very simply, that he’s going to be the only C.I.A. officer to go to jail over torture,” even though he publicly denounced torture, Mr. Riedel said. “It’s deeply ironic under the Democratic president who ended torture.” [Continue reading…]

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The White House’s rush to formalize its extrajudicial killing program

President Obama insists that his right to kill anyone anywhere is based on law, but if the legal basis for his assassination program is so strong, why would there be any need to write a “rules” on how it gets carried out? The crafting of rules after 2,500 people have already been killed suggests two things:

1. That the process through which Obama’s kill list has been developed and applied, has to some degree been ad hoc in its nature, and

2. that the legality of this program is highly contestable — in other words, that the White House’s partially drafted rule book is nothing more than a legal fig leaf.

The New York Times reports:

Facing the possibility that President Obama might not win a second term, his administration accelerated work in the weeks before the election to develop explicit rules for the targeted killing of terrorists by unmanned drones, so that a new president would inherit clear standards and procedures, according to two administration officials.

The matter may have lost some urgency after Nov. 6. But with more than 300 drone strikes and some 2,500 people killed by the Central Intelligence Agency and the military since Mr. Obama first took office, the administration is still pushing to make the rules formal and resolve internal uncertainty and disagreement about exactly when lethal action is justified.

Mr. Obama and his advisers are still debating whether remote-control killing should be a measure of last resort against imminent threats to the United States, or a more flexible tool, available to help allied governments attack their enemies or to prevent militants from controlling territory.

Though publicly the administration presents a united front on the use of drones, behind the scenes there is longstanding tension. The Defense Department and the C.I.A. continue to press for greater latitude to carry out strikes; Justice Department and State Department officials, and the president’s counterterrorism adviser, John O. Brennan, have argued for restraint, officials involved in the discussions say.

More broadly, the administration’s legal reasoning has not persuaded many other countries that the strikes are acceptable under international law. For years before the Sept. 11, 2001, attacks, the United States routinely condemned targeted killings of suspected terrorists by Israel, and most countries still object to such measures. [Continue reading…]

The Guardian adds: Human-rights groups and peace groups opposed to the CIA-operated targeted-killing programme, which remains officially classified, said the administration had already rejected international law in pursuing its drone operations.

“To say they are rewriting the rulebook implies that there isn’t already a rulebook” said Jameel Jaffer, the director of the American Civil Liberties Union’s Center for Democracy. “But what they are already doing is rejecting a rulebook – of international law – that has been in place since [the second world war].”

He said the news was “frustrating”, because it relied on “self-serving sources”. The New York Times piece was written by one of the journalists who first exposed the existence of a White House “kill list”, in May.

The ACLU is currently involved in a legal battle with the US government over the legal memo underlying the controversial targeted killing programme, the basis for drone strikes that have killed American citizens and the process by which individuals are placed on the kill list.

Jaffer said it was impossible to make a judgement about whether the “rulebook” being discussed, according to the Times, was legal or illegal.

“It is frustrating how we are reliant on self-serving leaks” said Jaffer. “We are left with interpreting shadows cast on the wall. The terms that are being used by these officials are undefined, malleable and without definition. It is impossible to know whether they are talking about something lawful or unlawful.

“We are litigating for the release of legal memos. We don’t think the public should have to reply on self-serving leaking by unnamed administrative officials.”

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Israel considers resumption of Gaza assassinations

The Associated Press reports: Israel is considering resuming its contentious practice of assassinating militant leaders in the Hamas-ruled Gaza Strip in an effort to halt intensified rocket attacks on Israel’s south, according to defense officials.

That Israel might renew a practice that brought it harsh international censure is evidence of the tight spot Prime Minister Benjamin Netanyahu is in. With Israeli elections two months away, rocket barrages from Gaza are disrupting the lives of 1 million residents of southern Israel, pressuring the government to come up with an effective response.

In the latest flare-up, Gaza militants have fired more than 100 rockets at Israel in recent days, triggering retaliatory Israeli airstrikes that have killed six people in Gaza.

Some Israelis are demanding a harsh military move, perhaps a repeat of Israel’s bruising incursion into Gaza four years ago. Others believe Israel should target Hamas leaders, a method it used to kill dozens of militants nearly a decade ago. [Continue reading…]

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The award for not bringing anyone to justice

David Cole writes: On Oct. 17, Eric Holder handed out the Justice Department’s annual awards for distinguished service to a slew of department employees. Featured at the top of the awards announcement were the men and women who successfully prosecuted 10 New Orleans police officers for killing innocent civilians in the wake of Hurricane Katrina, and a U.S. marshal who risked his life to protect a victim from a violent fugitive during the fugitive’s capture. But buried at the bottom of the list — the 13th of 14 “distinguished service awards” — was a more unusual awardee: Assistant U.S. Attorney John Durham. Durham and his team received the award not for bringing anyone to justice, but for declining to hold accountable anyone in the CIA for its brutal interrogations of detainees at secret prisons, or “black sites,” in connection with President George W. Bush’s “war on terror.”

“In order to conduct the investigations,” the citation reads, “the team had to review significant amounts of information, much of which was classified, and conduct many interviews in the United States and at overseas locations.”

There’s no question that Durham worked hard for a long time, and that the investigation was complex and substantial. After all, more than 100 men were “disappeared” into the CIA’s black sites for extended incommunicado detention and interrogation. Because the CIA prisons were a secret, everything that happened there is classified, complicating investigation still further. And because the investigation itself is secret, we can’t know precisely what evidence Durham considered, what roadblocks he faced, what judgment calls he made.

But here’s what we do know. Many of those “disappeared” into the CIA’s black sites were tortured and/or illegally subjected to cruel, inhuman, and degrading treatment. Abu Zubaydah and Khalid Sheikh Mohammed, for example, were waterboarded 83 and 183 times, respectively. They and other detainees were stripped naked, doused with water, beaten about the face and stomach, slammed into walls, deprived of sleep for days on end, forced into painful stress positions, and confined in small dark boxes for hours at a time. And these were just the “authorized” torture tactics, given a green light by a secret memo written in August 2002 by John Yoo and Jay Bybee from the Justice Department’s Office of Legal Counsel, and specifically okayed by President Bush, Vice-President Dick Cheney, National Security Adviser Condoleezza Rice, Attorney General John Ashcroft, and White House Counsel Alberto Gonzales, among others. [Continue reading…]

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Obama’s preference for killing terrorists rather than torturing them

In a review of No Easy Day: The Firsthand Account of the Mission That Killed Osama bin Laden, Steve Coll writes:

In early 2009, in a speech at the National Archives, Obama announced that he would end the policy of using interrogation methods judged to be torture by the International Red Cross, and that he would close Guantánamo’s prison. He indicated that he would be open to trying some terrorists before military commissions, rather than dispatching all of Guantánamo’s inmates to federal courtrooms, but he declared that we “cannot keep this country safe unless we enlist the power of our most fundamental values.” He promised policies based on “an abiding confidence in the rule of law and due process.” He added that “fidelity to our values” is the “reason why enemy soldiers have surrendered to us in battle, knowing they’d receive better treatment from America’s Armed Forces than from their own government.”

In the years since, the president has struggled to live up to those pledges. In the one case where he took a major political risk to try a high-profile al-Qaeda-affiliated terrorist in federal court, his decision ended badly. In late 2009, on the recommendation of Attorney General Holder, Obama ordered Khalid Sheikh Mohammed, the bin Laden ally who masterminded the September 11 attacks, transferred from Guantánamo to stand trial in the Southern District of New York. Republicans accused Obama of going soft and whipped up a political backlash that forced the president to retreat; Mohammed is now facing a trial before a military commission at Guantánamo.

In planning for Abbottabad, White House lawyers would almost certainly have assured Obama that it would be legal to kill bin Laden outright. The “Authorization for the Use of Military Force” enacted by Congress a week after the September 11 attacks provided for the use of deadly force against al-Qaeda’s leaders. Also, under international and American laws arising from the rights of self-defense, if a terrorist is actively planning deadly operations, it can be legal to strike first. We know from White House disclosures that Obama seriously considered bombing the Abbottabad compound to smithereens. He demurred out of concern that it might not be clear after the attack whether bin Laden had been there at all. Yet if the president had decided on bombing, he would surely have justified his decision by pointing to the principles of self-defense, just as he uses this doctrine to justify the dozens of drone strikes he has authorized against suspected militants in countries where the United States is not formally at war.

The Abbottabad raid, as it was ultimately designed, seems to have brought into play different questions of international and American law concerning the requirement of soldiers to accept surrenders when they are offered. Having chosen to go in on the ground, Obama evidently did not wish to design a mission that precluded the theoretical possibility that bin Laden might surrender. Instead, he approved rules of engagement that made bin Laden’s surrender all but impossible.

Coll concludes:

[T]he Obama administration’s terrorist-targeting and detention system is heavily biased toward killing, inconsonant with constitutional and democratic principles, and unsustainable. The president has become personally invested in a system of targeted killing of dozens of suspected militants annually by drone strikes and Special Forces raids where the legal standards employed to designate targets for lethal action or to review periodic reports of mistakes are entirely secret.

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