Secret Periodic Review Board Hearings Limit Transparency at Guantanamo Bay Detention Center

This week, the Pentagon began notifying would-be observers of the first Guantanamo Periodic Review Board hearing, scheduled for November 20th, that the hearing (and all subsequent hearings) will be held in secret. The announcement highlights the challenges government officials face as they try to balance their commitment to transparency with the perceived national security risks associated with public hearings. Given the amount of classified information addressed in these hearings, it is impossible for the government to ever achieve true transparency throughout this process, leaving the public to question whether our country’s purported commitment to justice is being upheld at Guantanamo. Continue reading

Bradley Manning Sentencing Begins

Early yesterday, the sentencing phase of the trial of Bradley Manning, the source of the Wikileaks scandal, began at Fort Meade.  As I said yesterday, Manning was acquitted of aiding the enemy, the most serious charge against him.  Still, Bradley Manning was convicted on 20 of 22 counts, including charges of violating the Espionage Act of 1917.  The prosecution and defense both agreed with Col. Denise Lind that Manning faces a total of 136 years in a military prison for his crimes.

On top of the potential 136-year prison sentence, the parties also agreed that Bradley Manning will be demoted to the rank of enlisted private, dishonorably discharged from the Army, and stripped of all pay and benefits that he would have otherwise received.

The star witness of yesterday’s sentencing hearing was Brig. Gen. Robert A. Carr (ret.), who is now an executive at defense contractor Northrop Grumman.  General Carr’s expertise on the matter comes from a long career overseeing the Army’s intelligence gathering operations in Iraq, Afghanistan, and Bosnia.  His last assignment as a member of the Army was to gather information and assess the extent to which information released by Wikileaks harmed soldiers in the field and jeopardized American national security.

Now that the bulk of Bradley Manning’s sentence has already been settled, all that remains is to determine how much of the potential 136-year sentence he will actually serve and what monetary fines the court will impose on him.  I find it hard to believe at this point that Manning, who is just 25 years old, will ever be a free man.  I guess that’s just what 20 separate convictions for espionage will get you.  But now that he has been stripped of all benefits and pay and will probably spend most or all of his life behind bars, arguing about monetary fines is basically just a formality.  It’s probably not very realistic to expect him to pay up.

Anyways, General Carr’s testimony centered around whether or not Bradley Manning’s crimes actually led to any deaths in the field.  General Carr claimed that exactly one death, an Afghani national with ties to the U.S. government, occurred as a result of the Wikileaks scandal.  The Taliban reportedly killed him after obtaining the information.  However, when pressed by the defense, General Carr admitted that the man was never named in war logs released by Julian Assange and any mention of the death was stricken from the official record.  General Carr still insisted that Bradley Manning’s crimes had put U.S. soldiers and Afghani allies at risk by detailing the relationship between certain Afghani forces and the U.S. military.

It’s interesting that not even General Carr, the prosecution’s authority on the supposed damage caused by Bradley Manning, could not point to a single instance where the leaks led to even one casualty.  The only such accusation was quickly stricken from the record.  To me, this shows just how desperate the government was to make an example out of Manning with the aiding the enemy charge.  There’s really no other explanation for moving forward with that charge with only one precarious piece of evidence.

The trial still has a long way go.  The defense is still days, maybe weeks away from presenting evidence of mitigating circumstances that could soften the blow of Bradley Manning’s 20 convictions.  Like I said before, Manning isn’t going to be a free man any time soon.  But if today was any indication, he might not be looking at a 136-year sentence after all.

Chris Whitten, Research Fellow
Center for Policy and Research

Bradley Manning Acquitted of Aiding the Enemy

Yesterday, Col. Denise Lind, the military judge presiding over the Bradley Manning case at Fort Meade, acquitted Manning of the charge of aiding the enemy.  The charge was the most serious that Manning faced, and almost certainly would have led to life in a military prison.  For those of you unfamiliar with Bradley Manning, he is the Private First Class who was on trial for releasing the data published by Julian Assange on Wikileaks.  Because of that, the case has received a great deal of attention from both the media and human rights groups who are attempting to find a balance between government secrecy, transparency, and civil liberties.

Bradley Manning’s acquittal on this charge is not exactly surprising given that it was unprecedented for the government to bring such a charge in a leak case.  But still, the government’s argument made some sense if you look at the letter of the law.  Luckily, common sense seems to have prevailed.  I don’t believe (and I certainly don’t think the government could prove) that he intended to aid the enemy, and a vast majority of the information he leaked probably did not aid al-Qaeda or other terrorist groups in any way.  On top of that, there seems to be a lot of questions regarding whether or not most of the information should have been classified in the first place.

That’s not to say that Bradley Manning’s actions weren’t worthy of punishment.  Any way you look at it, it’s probably not a good policy to allow military personnel with security clearance to release classified information.  But that’s where the other charges come into play.  Manning is by no means off the hook.  Yes, he beat the most serious and highly publicized charge against him, but he was still convicted of a myriad of other charges.  Manning was still convicted of six violations of the Espionage Act of 1917, as well as most of the other 22 charges lodged against him (10 of which he has already plead guilty to).  He faces a maximum of 136 years in prison, although he probably won’t receive the maximum sentence due to the plea bargain I mentioned.  Regardless, it’ll probably be pretty hefty.

A statement put out by Reps. Mike Rogers (R-Mich.) and C.A. Dutch Ruppersberger (D-Md.), both members of the House Intelligence Committee, was cautiously optimistic but also a little confusing to me.  Here it is:

“Justice has been served today. PFC Manning harmed our national security, violated the public’s trust, and now stands convicted of multiple serious crimes. There is still much work to be done to reduce the ability of criminals like Bradley Manning and Edward Snowden to harm our national security. The House Intelligence Committee continues to work with the Intelligence Community to improve the security of classified information and to put in place better mechanisms to detect individuals who abuse their access to sensitive information.”

My confusion here comes from their claim that they are working hard toward securing classified information and our national security.  It seems to me like their plan is to bring the hammer down on anyone like Bradley Manning who leaks information to deter others from doing the same.  I know that leaking classified information is different than murder in that it’s usually a planned, calculated act.  The leaker usually knows there’s a good chance he might get caught, so I can see the logic behind a deterrence theory argument.  But I highly doubt anyone planning to pull a Bradley Manning-esque stunt doesn’t already know that the crime carries a serious penalty.

Maybe instead of throwing the book at Bradley Manning, who seems to have had serious concerns about the military’s policies, we should take a look at overhauling our classification systems.  And maybe we shouldn’t be handing out security clearances like candy.  Politicians should absolutely go after people like Bradley Manning and Edward Snowden.  Leaking government secrets should be punished.  But the politicians should at least own up to the fact that this is partially their fault.  If we start paying attention to what we classify and who we give security clearance to, we won’t find ourselves in these situations.

Chris Whitten, Research Fellow
Center for Policy and Research

Snowden Makes Request for Asylum in Ecuador

Just weeks after leaking the story that the NSA has been collecting phone records and the internet activity of American citizens, it appears that Edward Snowden will not be seeking permanent asylum in China.  Yesterday, multiple news agencies reported that Snowden was on his way to Moscow, where he will apparently wait for Ecuador to grant him asylum.  Earlier reports stated that he might be fleeing to Cuba, but it looks like he never boarded the flight that was supposed to take him there.

That’s right, the man who went on the record saying that he was concerned with the direction our government was headed in regard to freedom of speech and privacy has turned to China and Russia for protection.  I guess he didn’t hear about the Chinese government upping its own surveillance program in Tibet, or that Russian President Vladimir Putin had an entire band thrown in prison for voicing their opinions on Putin’s Russia, or any number of human rights violations both countries have been accused of committing in the recent past.  And he was probably too busy to notice that Ecuador has followed in Venezuela’s footsteps as far as its policy towards America.

Snowden probably fled China because of an extradition treaty we have with them, figuring that sooner or later he would be turned over to the American government and forced to answer for his actions.  It was probably a smart move in this regard since we don’t have an extradition treaty with Russia.  On top of that, our well-documented, strained relations with Putin’s administration make it even less likely that the Russians would ship him back to the U.S.  So why would he go to Ecuador?  Why not stay in Russia?  After all, the United States accounts for roughly 45% of Ecuador’s trade and they could experience a sharp economic decline if the U.S. decided to retaliate against them for harboring Snowden.

It might have something to do with the fact that the American government has already made a serious push toward convincing Russia to turn him over.  The media reported yesterday that the government had filed to revoke Snowden’s passport, which would presumably strand him in Russia for the immediate future.  And like I said before, Ecuador tends to take Venezuela’s stance on foreign relations with the U.S.  Ecuadorian President Rafael Correa is known for making strong statements against America, holding frequent rallies against U.S. “imperialism.”  So even if President Obama were to threaten economic sanctions, it doesn’t seem likely that Correa would cave.

It’s also worth noting that Snowden has reportedly received assistance from Julian Assange of WikiLeaks fame.  Assange calls Snowden “a hero” and claims that he is healthy and safe in an undisclosed location.  Assange himself has been holed up in the Ecuadorian embassy in London, another valid reason for Snowden to seek asylum in that country.  For one, he knows he has at least one ally with ties to the Ecuadorian government.  Second, the Ecuadorian government has harbored Assange for nearly a year, protecting him from charges similar to those Snowden would face in the U.S.  The precedent set by the Ecuadorian government has to be reassuring for Snowden.

Knowing this, it seems impossible not to question Snowden’s motives at this point.  That’s not to say that he was wrong for bringing this to light.  This story is definitely concerning and it’s provoked quite a range of responses from the public, and I could argue for both sides all day.  Regardless, it seems hypocritical for a self-proclaimed champion of free speech that claims to want to protect the rights of American citizens to turn to two countries known for censorship and a country that regularly voices anti-American sentiments.  I’m sure he has his reasons; we just don’t know what they are yet.  There’s still speculation that he has deals with foreign governments to sell information about our national security.  This seems plausible since he obviously has access to massive amounts of damning reports and other documents.  It could also be as simple as Snowden not wanting to spend the rest of his life behind bars, or worse.  He reportedly pleaded with the Ecuadorian government that he wouldn’t get a fair trial in the U.S.  Either way, it looks like the government’s chances at having a crack at him in a court of law are shrinking at a rapid pace.  Luckily, Snowden hasn’t shied away from the spotlight since he made international headlines.  We might have more answers soon, but for now we’re still playing the waiting game.

Chris Whitten, Research Fellow
Center for Policy and 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

 

Update on UN Drone Investigator

After a recent secret visit to Pakistan, Ben Emmerson, the U.N. special rapporteur on human rights and counter-terrorism (see my previous posts here and here), released a statement that the Pakistani government “emphasized its consistently-stated position that drone strikes on its territory are counter-productive, contrary to international law, a violation of Pakistan’s sovereignty and territorial integrity, and that they should cease immediately.” 

The US has previously relied on the contention that Pakistan consented to these strikes, and it has a lot of support to back it up. In fact, diplomatic cables released by Wikileaks confirm that Pakistani leaders did not oppose the use of drones on their soil, and even encouraged it. It is true that Pakistani officials have made public statements that the attacks are not welcome and should stop. But as pointed out by Ben Farley in his thoughtful piece on the D.C. Exile blog, it is not always clear from public sources when consent has been given or revoked, as when then-Yemeni President Ali Abdullah Saleh consented to US drone strikes on its territory, but under the pretense that they were the actions of his own air force. No one who witnessed such a strike would therefore know that it was not a breach of Yemeni sovereignty.

Emmerson, however, has apparently adopted a black and white view of the issue after his meetings with Pakistani officials, claiming that “[t]he position of the Government of Pakistan is quite clear. It does not consent to the use of drones by the United States on its territory.” But it is not clear.

Ben Farley’s conclusion is a more thorough and eloquent presentation of my own thoughts on the issue than I could hope to achieve:

Pakistan’s behavior in general has been at best ambiguous.  Despite having the capacity to “‘trace and detect any aircraft’” operating near its border with Pakistan and (apparently) the ability to shoot such aircraft down, there have never been reports of Pakistan shooting down a U.S. drone.  Although the absence of public reports of such downings is not dispositive, the fact that U.S. drones carry out any strikes even though they are slow moving, are not maneuverable, and carry no air defense countermeasures, strongly suggests that Pakistan ischoosing not to interdict drones.  Additionally, Pakistan has a modern air force that is at least as capable as the Iranian air force but, while Iran has chased a number of U.S. air force drones over the Persian Gulf in recent months, there have never been any similar reports from Pakistan.  Finally, and perhaps most tellingly, Pakistan has not taken the sort of concrete steps vis-à-vis the United States for drone strikes as it has for other violations of Pakistani sovereignty.  For example, in November 2011, a frontier incident between U.S. and Pakistani troops (that resulted in the death of 26 Pakistanis), led Pakistan to both close its border with Afghanistan to NATO convoys and to kick U.S. drones out from their Pakistani bases.  Pakistan also upgraded its Afghan-border air defense systems.  Similarly, after a CIA contractor killed two Pakistanis in January 2011, Pakistan ousted all CIA contractors and reduced the number of U.S. special operators allowed in Pakistan for training missions from 120 to 39.  Not only has Pakistan not taken such steps in response to U.S. drone strikes, at least until the Wall Street Journal report at the end of September 2012, Pakistan  continued to clear the parts of its air space in which the CIA indicated it would conduct drone strikes.  That is to say, not only is Pakistan not intervening to prevent drone strikes, it is taking affirmative steps to facilitate those strikes.  Thus, Pakistan’s behavior at least renders its public statement ambiguous and, more likely, supersedes those statements altogether.  Again, consent must be clearly stated but clearly stated to the recipient of that consent not the outside world.

If the United States is operating without Pakistan’s consent within Pakistan, it is violating Pakistan’s sovereignty—and it may be violating international law.  However, Emmerson’s conclusion notwithstanding, it is far from clear that, as a matter of international law, the United States is violating Pakistani sovereignty.

 

Paul Taylor, Senior Research Fellow
Center for Policy & Research