Ben Emmerson talks drones with Lawfare

UN Special Rapportuer for Human Rights and Counter-Terrorism Ben Emmerson spoke with Lawfare’s Benjamin Wittes and Ritika Singh about his study of US drone policy, focused primarily on our operations in Pakistan (podcast available from Lawfare: see episode 31). I have expressed some skepticism of his objectivity in past posts (here and here), but also some optimism (here). Having just listened to Emmerson’s 40 minute discussion, I now have a great deal of respect for the man’s commitment to objectivity.

In the discussion Emmerson admits to having initially approached the subject from not only a human rights perspective, but also with the preconception that the US was not at war at all. His views on these issues have become both tempered by his investigation and discussions with officials in Pakistan and the US, and also quite nuanced. Once example of this can be found in his explanation of his comments earlier this year in which he is broadly quoted as saying that Pakistan has not consented to US drones attacks on its soil. His elaboration of how he came to this position is quite interesting, and well worth listening to (it starts at minute 23).

Far from simply accepting the assertions of Pakistan’s civilan officials that they have repeatedly protested against drone strikes, Emmerson starts his analysis from the passage of a law restricting consent to the use of drones by officials of the Pakistani government. Since the US and the international community are interested in promoting democracy and the rule of law, Emmerson argues, such a restriction, passed by the elected representatives of the Pakistani people should set the basis of consent. To allow back-room deals to trump a duly enacted law would be anathema to the promotion of democracy.

Emmerson then preempted the ever-realist Wittes’ rebuttal that the democratic government of Pakistan is not the effective government with regard to matters of national security and foreign affairs by pointing out that while Pakistan is clearly a flawed democracy, it is also by the same token a fragile democracy that should be nurtured rather than subverted in the name of expedience.

Another point made by Emmerson which displays his objectivity and thoughtfulness relates to the perception that drones could unduly high civilian casualties. Emmerson cited  UNAMA statistics kept over the last decade on civilian casualties from various kinds of ordinance. And while that data clearly shows that drone attacks in Afghanistan tend to cause substantially fewer civilian casualties than attacks by fixed-wing air craft, the perception of the the majority of Afghans is the exact opposite: that drones are prone to killing innocents. He therefore wonders (without concluding) whether drone warfare is in the long run more harmful than other means of achieving similar ends.

Other points warrant mention as well, but in all, I am very impressed with Ben Emmersion’s intellectual honesty and objectivity. I now truly look forward to his report, due to be produced in September.

Paul W. Taylor, Senior Fellow
Center for Policy & Research

 

Court of Appeals upholds denial of FOIA request seeking Bin Laden photos

The Court of Appeals for the District of Columbia yesterday decided to uphold a district court ruling that the US did not have to release photos of taken during and after the raid on Osama Bin Laden’s compound in Abbottabad, Pakistan. The photos were sought by a conservative watchdog group, Judicial Watch, under a Freedom of Information Act request. The court found, however, that since the photos were used to conduct facial recognition to verify the body as Bin Laden, releasing the photos could endanger intelligence methods.

While I do not dispute that ruling, I am happy about the outcome on another ground altogether. John Bennett, director of the CIA’s National Clandestine Service, described the photos in a declaration to the court as “quite graphic, as they depict the fatal bullet wound to and other similarly gruesome images of his corpse.” And according to the Appeals Court,

“As the district court rightly concluded, however, the CIA’s declarations give reason to believe that releasing images of American military personnel burying the founder and leader of al-Qaida could cause exceptionally grave harm.”

To my mind, this decision validates an important reason for the Freedom of Information Act: informational transparency. Congress did not pass it to give the media free access to salacious material to boost their ratings.

As citizens of an open democracy, Americans have a right to information about their government and its activities. But where the government has a legitimate reason for withholding a document, even if it is on grounds such as diplomatic “embarrassment,” as happened in the Bradley Manning Wikileaks case, a FOIA request should as a matter of policy only be granted if there is a legitimate informational purpose. Judicial Watch could identify no cognizable information contained in the pictures that was not already publicly known. Thus, releasing the photos would not serve FOIA’s purpose of informational transparency, only the media’s purpose of generating buzz.

A vastly undervalued aspect of protecting our rights as citizens of an open society is to avoid abusing those rights. One example of the dangers that fear of unwarranted disclosure can cause can be found in the case of the CIA interrogation tapes. Fearing that these tapes may at some point become public, the CIA destroyed them. The courts yesterday thus did us a favor in protecting the government from unnecessary disclosure of gruesome photos, helping to ensuring that the government can do its job without fear that anything and everything will wind up on Fox, MSNBC, and Al Jazeera.

Paul W. Taylor, Senior Fellow
Center for Policy & Research

 

In spite of ongoing debate, drone strikes are declining

While the debate over the legality of the US drone campaign in various places around the world rages on, Scott Shane of the New York Times pointed out yesterday that drone strikes worldwide are actually on the decline. They report that the number of strikes in Pakistan, where drones are most actively used, actually peaked back in 2010. In Yemen, where drone strikes served to decapitate the leadership of Al Qaeda in the Arabian Peninsula, the number spiked dramatically in 2012, but has since dropped off again. Meanwhile, no strikes have been reported in Somalia for more than a year.

The cause of this decline, according to NYT sources, include the diminishing list of high-level Al Qaeda targets, which they attribute to the success of the drone program, as well as other factors like weather and diplomatic concerns. However, Shane suggests that another factor may be the growing appreciation of the costs of the program. This is certainly a concern, especially as Al Qaeda uses the strikes as a propaganda tool and, thanks to the Urdu language press, many Pakistanis report to live in fear of drones (despite never having seen one). I, myself, have long argued that the drone program is legitimate and beneficial to US interests, with the caveat that we find a way to transition to law enforcement methods  within a reasonable amount of time. The only problem is figuring out how to do that in places like rural Pakistan, Yemen, and Somalia.

Hopefully, this is a topic that President Obama may address national security speech scheduled to take place tomorrow at the National Defense University. Unfortunately, while I have a lot of faith in President Obama on many fronts, I would be surprised if he goes beyond a mere recitation of the drone strike numbers, and actually proposes a way out.

Paul W. Taylor, Senior Fellow
Center for Policy & Research

President Obama to give speech on counterterrorism policy, drones, and GMTO

President Obama is scheduled to deliver a speech on Thursday at the National Defence University on the administration’s counterterrorism policies, and how it intends to bring those policies in line with his long-standing pledge to honor the rule of law.

According to a White House official, speaking anonymously to the Washington Post Saturday, President Obama will “discuss our broad counterterrorism policy, including our military, diplomatic, intelligence and legal efforts.”

“He will review the state of the threats we face, particularly as the al-Qaeda core has weakened but new dangers have emerged,” the official said. “He will discuss the policy and legal framework under which we take action against terrorist threats, including the use of drones. And he will review our detention policy and efforts to close the detention facility at Guantanamo Bay.”

This speech could go some way toward fulfilling the promise that President Obama made in his 2013 State of the Union address, in which he proclaimed that his new administration would “ensure not only that our targeting, detention and prosecution of terrorists remains consistent with our laws and system of checks and balances, but that our efforts are even more transparent to the American people and to the world.” Many, including myself, have been disappointed with the level of transparency the administration has maintained regarding national security efforts over the last 4 years or so. 

The speech comes at a time of increasing unrest in the national security arena. Indeed, it has already been delayed due to the hunger strike at the Guantanamo Bay Detention Facility and the brouhaha over the Justice Department’s subpoena of the AP’s phone records. While the events at Guantanamo Bay can to some degree be attributed to the policies of the Bush administration (in opening the prison) and to Congress (in refusing to allow it to close), the AP seizure is something that rests firmly in Obama’s lap, and is indicative of his Justice Department’s approach in general. Rather than increasing transparency, Obama’s Justice Department has been ruthless in suppressing leaks and punishing leakers.

While I have no sympathy for the likes of Bradley Manning, the number of prosecutions related to national security leaks has been higher under Obama than his predecessors, with at least some chilling effect on the “unofficial transparency” that leaks tend to serve. And while Obama has recently pushed for a new Federal shield law to protect reporters’ sources, his downright schizophrenic approach to transparency has been a bitter disappointment. Hopefully, Thursday’s speech will help to alleviate that disappointment.

 

 

Is the FBI more dangerous to civil liberties when it REFUSES to record?

In an opinion piece in the Boston Globe, lawyer Harvey Silverglate claims that the FBI follows a policy of not recording interviews with suspects and witnesses in order to be able to put words in their mouth. He points specifically to the case of Robel Phillipos, who was recently arrested and charged with making materially false statements during the course of the investigation of Dzhokhar Tsarnaev, the suspect in the Boston bombing.

Mr. Silverglate has a point. Without electronic recording, the FBI agent can sit in the interview room, taking whatever notes he pleases, and then later attribute those statements to the interviewee. The interviewee, in disputing the statements, risks prosecution for the same crime now being alleged against Robel Phillipos. Mr. Silverglate apparently thinks that creating this opportunity is the reason for the FBI’s policy.

But there are a couple of problems with this theory. First, to do this would be a crime–the same crime that Robel Phillipos is charge with in fact, along with a couple of others. Second, the FBI do not want to soil their own evidence. Even apart from the implications for admissibility or weight, if it becomes known that an agent is falsifying witness statements, false witness statements only harm the investigation by adding incorrect information into an already complex picture.

Last, but not least, Mr Silverglate doesn’t address the one feature that may help to level the playing field between the FBI and the witness: the jury. A witness statement is not at all like a piece of physical evidence. The jury does not simply note that it exists (theoretically, the jury doesn’t even stop here for physical evidence). Instead, when confronted with the claimed falsification of the statement, the jury will decide which of the two parties they believe is telling the truth. Ignoring this aspect severely undercuts Mr. Silverglate’s argument.

However, in the end, his point still stands. Why, with the ubiquity of hand-held recording devices (like the on in your pocket or purse that rings from time to time), doesn’t the FBI record all interviews as a matter of course. If for some reason a recorder cannot be found, they can always revert back to their paper-only method, and explain to the jury why they had to do so. But it would effectively remove the possibility of interviewees claiming that they were misquoted or that their statements were falsified. And in this respect Mr. Silverglate is correct. This should be a non-issue.

Paul W. Taylor, Senior Fellow
Center for Policy and Research

Speedy trial chickens may be coming home to roost

In a previous post, I mentioned the possibility of speedy trial problems arising if terrorism suspects are treated differently than other violent criminals. And we are now seeing signs that this may be true.

The defense for Guantanamo Bay prisoner Ahmed Gilani, who is so far the only GTMO detainee to be tried in Federal court rather than in a Military Tribunal, is now seeking to have his conviction overturned due to his long detention prior to trial (see also, here). Gilani was sentenced to life in prison for his role in the 1998 embassy attacks in Tanzania and Kenya. After his capture in Pakistan in 2004, he was held in incommunicado by the CIA for two years, then by the military at Guantanamo Bay, Cuba until 2009, when the Obama Administration transferred him to civilian custody for trial.

But I suspect that while this delay is truly significant, and under normal circumstances would be a clear violation of the constitutional requirement for a speedy trial, I think there is a clear difference between this case and the Boston bombing case. Where Tsarnaev was a civilian captured in the US with no apparent ties to a foreign enemy entity (state-based, state-sponsored, or otherwise), Gilani was captured on foreign soil in the course of a foreign war authorized by Congress. As such, the US was authorized to hold Gilani without charge as a suspected enemy combatant, regardless of his activities in 1998.

Where one might decide to draw the line between these two poles, with arrest under civilian authority on the one end, and capture under foreign relations/law of war authority on the other, I don’t exactly know. However, it is clear that these two cases fall on opposite sides of that divide. So even if Gilani’s speedy trial appeal is defeated, as I suspect it will, that does not limit the concern that such an appeal could lead to the release of convicted terrorists if pre-trial detention is prolonged for intelligence-gathering purposes. Such concerns are very real, and should not be taken lightly.

Paul W. Taylor, Senior Fellow
Center for Policy and Research

David Rothkopf on American responses to terrorism: Not All Terror is Created Equal

Shortly after the Boston bombings, Foreign Policy’s David Rothkopf posted a very insightful article on CNN.com, which is very well worth reading. In it he compares recent terror events, such as the Boston bombings and the ricin letters sent to the President and others, with the non-terrorist events like gun violence.

“Terror and terrorists are real and their stories are compelling, but we ought to remember that by far the biggest threats we face come from elsewhere—from what might be corporate negligence or greed; from natural disasters or the heedless abuse of the environment; from people who find it far too easy to get their hands on guns or from leaders who twist their interpretation of the Constitution to overreact to one threat even while ignoring and exacerbating another.”

“In short,” he asks,  “how much damage are we doing to ourselves in our efforts to stay safe or pursue justice?”

Paul W. Taylor, Senior Fellow
Center for Policy & Research

 

Some thoughts on GTMO hunger strike strategy

A friend of mine recently wrote me to about the hunger strikes taking place at Guantanamo. He made a very interesting comparison between the hunger striking  strategy employed by the Guantanamo detainees and those used by Irish separatists jailed by the British. He noted that the Irish were unsuccessful in their efforts to gain concessions from the British until they struck upon the strategy of a serial hunger strike. One detainee would stop eating, eventually starving himself to death, only to have his hunger strike taken up by another. This sustainable tactic created a relentless tension that eventually caused the British to cave.

Conversely, the Guantanamo detainees have typically used parallel hunger strikes. The resulting large number of hunger strikers is generally assumed to be an attempt to garner media attention. My friend is definitely correct in his assessment that this is not a sustainable tactic, which he took to mean that the Irish strategy would be more effective. However, as I pointed out to him, there is a key difference between the two cases: in Guantanamo, detainees are not allowed to starve themselves to death, only into infirmity. Once their bodyweight drops too much, they get a tube up the nose and food down their gullet. From which I concluded that media attention the sheer number of hunger strikers was the only effective civil disobedience strategy available to Guantanamo detainees.

However, it has since occurred to me that another strategy may be at play here. By increasing the number of hunger strikers, the detainees increase the workload on the medical personnel conducting their forced feeding. As has recently been reported, the situation has gotten to the point where they are having to conduct forced feeding around the clock in order to keep up. If the detainees are able to continue to grow this hunger strike much more, and sustain it just long enough, they may be able to completely overwhelm the guard force medics. If this happens, we could see several deaths in relatively short succession.

The media coverage of such an eventuality would be substantial, the political left would be mobilized, and pressure to finally close the prison would mount.

Or… maybe they’re just pissed off.

In either event, such as strategy will not work. In response to the increased hunger striking by the Guantanamo detainees, the US Navy has sent an additional 40 medical personnel to support the over-burdened force-feeding operations. This capacity and willingness to scale the response to hunger strikes will negate any high-volume strategy, at least in terms of impact on operations.

Interestingly, according to the Navy at least, the term “force feeding” may be a bit of a stretch. Army Lt. Col. Samuel House, in a statement issued on Monday, claimed that “currently only a handful of detainees are being tube-fed.” The rest of those designated for “force-feeding” are actually just isolated from their peers, sat in front of a meal, and eat voluntarily. If this is the case, then the primary driver of the hunger strike is peer pressure rather than solidarity of opposition. If that is the case, this hunger strike is just as doomed as the previous ones.

Paul W. Taylor, Senior Fellow
Center for Policy & Research