More Government Secrecy in Detainee Trials at Guantanamo Bay

Later this week, the trial of an alleged al-Qaeda bomber and current Guantanamo Bay detainee suspected of orchestrating the 2000 bombing of the USS Cole will continue, and one of the first items on the docket is a top secret motion from the government.  Classified motions are not exactly rare in military trials against detainees, but this one is particularly interesting.  Those who know the contents of the motion are barred from discussing any of its contents, and even the defendant, Abd al-Rahim al-Nashiri, and his defense team are not allowed to obtain declassified information regarding the motion unless the Army judge presiding over the trial compels it.  In fact, al-Nashiri’s lead attorney told reporters that his defense team had to fly to Washington, D.C. just to read it.

Army Brig. General Mark Martins, the government’s lead prosecutor on war crimes, insisted that his office was not using classification to cover up any embarrassing episodes, stating that there are “important narrow occasions” where the government may classify information “to protect national security interests.”  Still, the motion has already attracted negative attention from critics of the Pentagon court, which uses the motto “Fairness – Transparency – Justice.”  Yale law professor Eugene Fidell likened the motion to playing charades in the dark.  Even before news of the classified motion was released, a defense attorney filed a motion in May opposing any closure of future motions against al-Nashiri.

Military hearings at Guantanamo have been criticized for some time due to concerns over secrecy and the legitimacy of hearings against detainees, and this news will only add fuel to the fire.  The government is seeking the death penalty against al-Nashiri, and anything less than full disclosure of the government’s case against him leads to serious questions regarding the fairness of military trials against detainees.  In fact, Professor Fidell was quoted as saying,

“We’re supposed to be talking about the rule of law. You can have an all-star team of justices – Cardozo, Brandeis, Holmes, John Marshall, Stevens, Brennan, take your pick – and if they’re working in a closet you can forget about it in terms of public confidence in the administration of justice.”

The timing of this news was poor for the government in light of the recent leak of information regarding the NSA’s surveillance scandal.  With public concern regarding government secrecy rapidly growing, we should expect a great deal of criticism regarding the use of classified motions against detainees at Guantanamo.  And when the stakes are so high, we should be calling for more transparency and legitimacy in trials against detainees.

Chris Whitten, Research Fellow
Center for Policy and Research

A FISC for Drones?

With the confirmation hearings of John Brennan as Director of Central Intelligence, news related to the U.S. drone program is coming fast. This time it was made by Senator Diane Feinstein (D-CA), chairwoman of the Senate Intelligence Committee.

Both during the hearing and in comments to the press afterward, Sen. Feinstein suggested that she and other Democrats would be working to create a new court that would review the administration’s decisions on who may be targeted in lethal counter-terrorism operations. (I assume at that such a court would be given jurisdiction over all targeted killings, not just those conducted by drones, despite the common conflation of the two.)

The concept of a court or tribunal of some sort to review or provide oversight for targeted killing decisions, whether restricted to those targeting U.S. citizens or with a broader mandate, is not new (see, e.g., our previous post). However, this is the highest profile such suggestion that has yet been made.

In Sen. Feinstein’s conception, the court would be modeled after the Foreign Intelligence Surveillance Court (FISC), with the aim of increasing transparency and to correct public misconceptions about civilian casualties.

Such a court could also help to alleviate concerns that the administration is overly-permissive in its decisions to use targeted killing instead of other alternatives. For example, the editorial board of the New York Times writes, “Mr. Brennan’s assertions that the government only resorts to lethal force when ‘there is no other alternative’ is at odds with reports of vastly increased drone strikes.” An independent body which reviews such determinations would go a long way in ensuring that such concerns are addressed.

As an interesting aside, it seems that not everyone is concerned that President Obama is sliding into a Bush Doctrine approach. John Yoo wrote in the Wall Street Journal that “[t]he real story revealed by the [white paper released Monday] is that the Obama administration is trying to dilute the normal practice of war with law-enforcement methods.” However, this appears to be a minority view.

Ex Ante or Ex Post?

If the FISC forms the model for this targeted killing court, then the assumption would be that it would that the court would review the targeting decisions ex ante. That is, before the administration could act, it would have to produce for the court the evidence or intelligence gathered to support the targeting decision. The court would then review the evidence for some level of sufficiency before allowing the operation to move forward.

However, many of the suggestions for a tribunal to review these killings call instead for ex post review. This is the model required in Israel. The basic idea of this is generally that waiting until the operation is complete keeps the court out of the way of military or para-military operations, but still maintains some oversight.

Robert Chesney of Lawfare provided some very interesting points to consider about such a court, including whether the review should be ex ante or ex post. He falls on the side of ex ante, but some of his commentary actually seems to point in the other direction. First, he points out the all of the serious propositions would subject the nomination process to judicial review, not the “trigger pull.”  This temporally removes the judicial authorization from the final decision to kill, and in Chesney’s view eliminates the concern that the process will interfere with the execution of the operation.

I’m not sure that it does. Names may be placed on the list at any time, conceivably as the result of a time sensitive push within the intelligence community. While I am not an expert in the process of targeting decisions, I think that the executive may need to be able to act quickly on new information that indicates that a subject is targetable. Ex ante review would place an additional hurdle between the decisive intelligence and the operation. Chesney seems to realize this by admitting the need for an “exigent circumstances exemption.” But this exception would itself mean defaulting back to an ex post review.

Additionally, Chesney notes that “Some judges want absolutely nothing to do with this … due to hostility to the idea of judicial involvement in death warrants.  (And that’s without considering the possibility of warrant-issuing judges finding themselves the object of suit or prosecution abroad.)”

Judges would likely be much more comfortable with ex post review. Ex post review would free them from any implication that they are issuing a “death warrant” and would place them in a position that they are much more comfortable with: reviewing executive uses of force after the fact. While there are clearly parallels that could be drawn between the ex ante review proposed here and the search and seizure warrants that judges routinely deal with, there are also important differences. First and foremost is that this implicates not the executive’s law enforcement responsibility but its war-making and foreign relations responsibilities, with which courts are loath to interfere, but are sometimes willing to review for abuse.

Additionally, in search and seizure warranting, there an ex post review will eventually be available. That will likely not be the case in drone strikes and other targeted killings unless such a process is specifically created. There are simply too many hurdles to judicial review (including state secrets, political questions, discovery problems, etc) for the courts to create such an opportunity without congressional action.

Chesney also noted that executive officials involved in the nomination process would prefer an ex ante review to shield them from unexpected civil liability by the victims or their families. I’m sure that it is true that administration officials would like to have “certainty ex ante that they would not face a lawsuit.” However, this is not a guarantee that the courts can provide to the executive. As noted above, as with search and seizure  warrants, there are issues to consider after the approval of the executive action. Ex ante review does not allow for inquiry into important ancillary issues, such as the balancing of risk to civilian bystanders. Also, it provides no assurances that new, exculpatory intelligence forces a reassessment of the targeting decision. Only ex post review would achieve this.

There is also the problem that typified the FISC: permissiveness. Of the tens of thousands of FISA warrant requests, only a handful have been rejected. When allowing for modification of the requests, it is not clear whether any have been finally rejected. There is little reason to believe that the proposed “drone court” will be much different. It is far too likely that a court will hesitate to impede an operation that the executive believes is required to protect out national security. Once the operation is complete, however, the court will not be inclined to hold back its criticism on all manner of aspects of the operation, from the initial targeting decision to the final execution.

Lastly, as Chesney himself points out:

Of course, there is also the question whether creating any such system is constitutional in the first place, especially if the system is framed to encompass more than just US persons…

This may true for ex ante review, but one of the courts’ fundamental mandates reviewing the executive’s activities for abuse of its power. This is even true in cases involving military or foreign affairs, where the executive is given the widest latitude and enjoys the greatest autonomy.

I do share Chesney’s suspicion that a tort-based process in which victims seek damages is not the appropriate means of reviewing targeted killing decisions. However, I am certain that regardless of whether an ex ante review is used, some ex post review must be available. There are simply too many variables between the initial nomination and the final execution of the mission that should be subject to some independent review. Indeed, as a veteran, I know the value of lessons learned in after action reviews, but I also know how often these reviews are shortchanged or skipped altogether. An ex post judicial review will ensure that this does not happen here.

Paul Taylor, Senior Research Fellow

Center for Policy & Research

UN Drone Investigator Endorses Brennan for DCI

In a previous post, I suggested that the UN was beginning what was likely a highly biassed investigation of drone strikes by the U.S. and its allies. But I may have spoken too soon.

The British lawyer heading up the investigation, Ben Emmerson now appears to have endorsed John Brennan’s role in the U.S.’s drone program, as well as his nomination for Director of Central Intelligence.

In an interview with Danger Room, Emmerson said that

“By putting Brennan in direct control of the CIA’s policy [of targeted killings], the president has placed this mediating legal presence in direct control of the positions that the CIA will adopt and advance, so as to bring the CIA much more closely under direct presidential and democratic control. It’s right to view this as a recognition of the repository of trust that Obama places in Brennan to put him in control of the organization that poses the greatest threat to international legal consensus and recognition of the lawfulness of the drone program.”

Emmerson is convinced that Brennan has tried to ensure that the program properly balances the interests of the law, counterterrorism, and the agencies implementing it. He also claims that Brennan has upset some CIA hawks by holding them back and enforcing presidential authority over the agency.

Emmerson also believes that Brennan brings consistency and intelligibility to the program’s decision-making:

“Brennan has been the driving force for the imposition of a single consistent and coherent analysis, both legal and operational, as to the way the administration will pursue this program,” he explains. “I’m not suggesting that I agree with that analysis. That’s not a matter for me, it’s a matter for states, and there’s a very considerable disagreement about that. But what I am saying is that what he will impose is restraint over the wilder ambitions of the agency’s hawks to treat this program in a manner that is ultimately unaccountable and secret.”

“The decision to put Brennan as director of the CIA is a decision to stamp presidential authority over the agency, and to bring it firmly under control.”

Mr. Emmerson’s focus on the internal processes and institutions related to the drone program is very promising, since it means that his investigation will less likely turn into a litany of mistakes made in individual strikes or dubious statistics on civilian deaths. It may even suggest that Mr. Emmerson’s findings could include useful advice on procedural protections against such dangers as mistaken targeting, bad decisions regarding proportionality, and lack of accountability for abuses.

Paul Taylor, Senior Research Fellow

Center for Policy & Research

Update to Targeted Killing Story

Yesterday, President Obama yielded to congressional demands that he release the OLC memo detailing his administration’s legal justification for the targeted killing of US citizens who they suspect are senior terrorists. This was document provided the legal basis on which the administration in 2011 targeted and killed Anwar al-Awlaki, an alleged senior leader of al Qaeda in the Arabian Peninsula, currently the most  dangerous of the various al Qaeda franchises.

While his administration had previously not been willing to even admit that such a memo existed, he has agreed to share the memo with the House and Senate intelligence committees. This was likely a move to temper opposition to the confirmation of John Brennan as Director of Central Intelligence.

Brennan has been a central figure in the Obama administration’s drone program, from being the first official to publicly acknowledge its existence to direct involvement in its administration. While a strong supporter of the drone program, he has also stated that he “would not be the director of a CIA that carries out missions that should be carried out by the U.S. military.”

Paul Taylor, Senior Research Fellow

Center for Policy & Research