Al Nashiri Loses Faith in Counsel

Alexandra Kutner is currently at Guantanamo Bay, Cuba to observe proceedings in the al Nashiri case on behalf of the Center for Policy and Research.

Clean shaven Saudi detainee Abd al Rahim al Nashiri, accused of being the architect of the 2000 USS Cole bombing in Yemen, merely swiveled in his chair during his seven-minute stay in court. Al Nahsiri’s learned counsel, Rick Kammen, spoke on his behalf, explaining to the court that Nashiri had lost confidence in him and wanted him removed from the case. In hopes of preserving their relationship, Kammen requested two days to attempt to reconcile the relationship. Judge Pohl agreed to grant Kammen time to speak with al Nashiri and recessed until Wednesday. If the two cannot repair their relationship, al Nashiri is ultimately allowed to fire Kammen under current military commission rules. Continue reading

DoD Announces Detainee’s Charges After Ten Years of Detention at Guantanamo

Last week, the Department of Defense announced the charges against detainee Ahmed Mohammed Ahmed Haza al Darbi, who will be charged by a military commission for aiding and abetting conduct that resulted in the suicide bombing of the civilian oil tanker M/V LIMBURG near al Mukallah, Yemen, on October 6, 2002. This is the first time that al Darbi, who has been held as a detainee at GTMO for nearly eleven years, has been charged since his arrival at the detention center. According to his charge sheet, al Darbi is accused of attacking civilians, attacking civilian objects, hazarding a vessel, terrorism, attempted hazarding a vessel, and attempted terrorism.

Be sure to follow TransparentPolicy for more info on al Darbi’s upcoming trial as it becomes available.

 

US Considering Drone Strike Against Citizen

Yesterday afternoon, the Associated Press reported that the US is currently tracking an American citizen and terrorist suspect in Pakistan. While officials have not confirmed the identity of the man, they described him as an “al Qaeda facilitator” who is currently plotting attacks against the United States. Now the Obama administration is struggling with the question of whether to use the controversial drone program to eliminate him. Continue reading

US Embassies Close in Wake of Terrorist Threat

Unless you live under a rock, you’ve probably heard about the State Department’s response to an alleged terrorist threat this past Friday.  The State Department issued a travel alert to all Americans traveling abroad and even went so far as to close 21 foreign embassies over the weekend, 19 of which will remain closed through this week.  Although the embassies that are now closed are located mostly in the Middle East and North Africa, the travel alert covers Americans traveling to all parts of the globe. Continue reading

Senate Panel Debates the Close of Guantanamo

Yesterday afternoon, for the first time since 2009, a Senate committee took to the issue of closing the Guantanamo detention center. The hearing was called by Sen. Richard Durbin (D-Illinois), the Senate’s No. 2 Democrat and chairman of the Senate Judiciary subcommittee on the Constitution, and Civil and Human Rights. In his opening remarks, Sen. Durbin referred to the prison as a sad chapter in American history, a place he had “never imagined in 2013… would still be open.”

“Every day it remains open, Guantanamo prison weakens our alliances, inspires our enemies, and calls into question our commitment to human rights.” – Sen. Durbin

Sen. Durbin has long been critical of Guantanamo Bay. In 2009 he stated that he would be OK with accepting detainees into the Illinois supermax facility. Earlier this month, along with California Sen. Dianne Feinstein, Sen. Durbin asked President Obama to order the Pentagon to stop routinely force-feeding the hunger strikers, challenging the military claim that the enteral feedings were humane and modeled after the federal Bureau of Prisons.

Opposing Sen. Durbin’s request to close the prison, Senator Ted Cruz (R-Texas) harped on the threat of detainee recidivism. Quoting from a recent study by the Director of National Intelligence which found that 28 percent of detainees previously released from Guantanamo were suspected or confirmed to have joined up with terrorist groups upon leaving US custody, Sen. Cruz emphasized the risk we face by releasing the detainees. In agreement, Center for Security Policy president Frank Gaffney stated that moving prisoners from Guantanamo to the U.S. could result in attacks on domestic prisons as well as the spread of radical Islam to other inmates.

As of now, little progress has been made on the closing of Guantanamo. Congress appears to be divided, even among its own factions. I tend to agree with Sen. Durbin and propose that we close Guantanamo. We give the detainee’s their day in court and either send them back to their country of origin if that country is willing to accept them, or we place them in supermax prisons within the United States. Mr. Gaffney’s concerns are ludicrous. We hold hundreds of terrorists in supermax facilities – to my knowledge, there have been no attacks or major issues stemming from the domestic detention of detainees. In fact, a detainee in the general population of a prison will probably have more to fear from us than we will of him. Furthermore, should we allow the detainees to return to their country of origin and something goes wrong – another Abu Ghraib-type escape or a detainee returning to a terrorist cell – just look at what happened to Saeed al-Shiri. While I am not proposing or endorsing the use of drones, I am pointing out that the Obama administration clearly has no problem finding more permanent solutions when it deems necessary. On top of that, the study Sen. Cruz referred to only took into account the number of detainees associated with militant groups, not the number who have actually engaged in violent activities themselves. If I were to guess, the majority of detainees that we saw fit for release were more concerned with starting families and their lives than plotting more attacks.

So what comes next? Most likely nothing. The Pentagon finally announced that they will be establishing Periodic Review Boards – two years after the Obama administration called for their creation (no official dates as of yet). Force feeding and genital searches are still a go. Another day, another story. Maybe next time there is a senate hearing, the Obama administration will actually show up.

Alexandra Kutner, Research Fellow
Center for Policy and Research

Terrorists Changing Communication Methods Post-Leaks

Intelligence agencies are now scrambling to change their surveillance practices due to Edward Snowden’s leaks regarding NSA surveillance programs. Terrorist groups, who have always taken precaution in order to avoid detection, are now changing the way they communicate since they learned that some of the means previously thought undetectable were actually being monitored. Intelligence officials, speaking anonymously and unauthorized, have stated that terrorist organizations – in particular al-Qaida in the Arabian Peninsula, which includes al-Qaida’s Yemeni Branch – have been switching e-mail accounts, cellphone providers and adopting new encryption techniques to mask communications.  Given that we have 56 Yemeni detainees in Guantanamo, President Obama’s statement that he would soon lift the ban on Yemeni repatriation seems like a bit of a misstatement. If we can no longer monitor those whom we deem to be terrorists, I highly doubt we would allow for the transfer of detainees back to their home countries, regardless of whether they are seen as valuable or not.

Snowden’s leak on NSA surveillance has brought much debate, particularly regarding how much harm was actually done. On the one hand, it is easy to understand that by giving out information on how we are being monitored could cause issues, namely creating smarter criminals. On the other hand, is it really that unthinkable that a criminal is being monitored and therefore has already thought of means to go undetected? Political issues, etc. (which we do not fully understand the global implications of – and they will continue to rear their ugly heads) aside, has the information Snowden released really taught us any more than we could have learned from every cable series or spy movie of the past decade, not to mention the public debate surrounding the Patriot Act?  For instance, take Osama bin Laden. It took us a decade to find him because he went completely off the radar. 1) This is public information – if you’re that smart and that high up the food chain, you’re probably not using a phone and if you were, you’re using it very sparingly. 2) I could have told you that after watching one season of “The Wire.”

I understand the NSA’s problems with the leak.  I understand that some people may have been tipped off and might be harder to locate now.  But at the same time, come on. The guy at the top of the cell isn’t going to be dumb enough to be making phone calls. And the guy at the bottom of the cell is probably still going to be dumb enough to do something else you probably already have intelligence on.

Alexandra Kutner, Research Fellow
Center for Policy and 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

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

A New Look at Targeted Killing Authorities

The Obama administration is reportedly taking another look at the legal foundations of its use of drones for lethal counterterrorism operations. And none too soon, with the changes in the structure of al-Qaeda stretching the AUMF to the breaking point.

Like the war in Afghanistan, the targeted killing campaign in Pakistan, Yemen and elsewhere was undertaken under legal auspices of the Authorization for the Use of Military Force, passed by Congress in the wake of the 9/11 attacks. That law allowed the administration “to use all necessary and appropriate force” against those who “planned, authorized, committed, or aided” the 9/11 attacks or who “harbored such organizations or persons”.

However, with the continuing tactical successes of the dogged and technologically sophisticated campaign to target the core al-Qaeda leadership in Pakistan over the last several years, the terrorist network has become much more diffuse.  This makes finding the necessary connections to the al- Qaeda senior leadership much more difficult, thereby undermining the legal justification for using lethal force. In fact, even detaining these individuals would require that they fall under the AUMF or some other legal authority (something critics of targeted killing often overlook).

This diffusion of al-Qaeda—and the legal authorities for use of force—is not a particularly new phenomenon. After all, after the invasion of Afghanistan, and the routing of the Taliban and al-Qaeda, many al-Qaeda operatives left the Afghanistan/Pakistan theater altogether, dispersing across the globe. They were not going into hiding, per se, but looking for new places to recruit, plan, and carry out their terrorist operations. When the US subsequently invaded Iraq, some al-Qaeda operatives followed us there to take root in the security void we created.

The courts have taken an expansive view of the AUMF, allowing the administration to target these “associated forces,” or what many analysts have called al-Qaeda 2.0. However, these individuals and groups had clear, direct connections to the original, core al-Qaeda element run by Osama Bin Laden and Ayman al-Zawahiri which planned and carried out the 9/11 attacks.

Most al-Qaeda 2.0 groups were founded and run by his lieutenants, and remained in contact with Bin Laden. This is not true of the newest crop of terrorist groups cropping up across the Middle East and Africa. Instead, the leadership of these new groups often learned their trade as lieutenants to al-Qaeda 2.0 leaders and have only the most tenuous connections to the core al-Qaeda group. This makes fitting them into the AUMF scheme difficult, creating questionable legal authority to use lethal force.

According to a senior Obama administration official,

“The farther we get away from 9/11 and what this legislation was initially focused upon, we can see from both a theoretical but also a practical standpoint that groups that have arisen or morphed become more difficult to fit in.”

Even the leaders with the firmest connections often pose legal problems: Mokhtar Belmokhtar, a former fighter in Afghanistan and later leader of al-Qaeda in the Islamic Maghreb (AQIM), had broken ties with AQIM and formed his own group, the al-Mulathameen Brigade operating in Algeria and Mali. The threat he poses to the to the US is not diminished, however. He was the mastermind of the Algerian gas plant attack, which lead to the deaths of three US citizens. However, because he is no longer a part of al-Qaeda or one of its franchises, the administration determined that the AUMF would apply to him.

When those like Belmokhtar and the Benghazi attackers kill Americans, the US could capture them based on criminal law enforcement authorities. However, should we have to wait for US citizens to be victimized before we allow the government to take action, when we know that an individual or group has nefarious intentions? Should we also have to wait until they show up somewhere that we can execute an arrest without undue danger to our agents?

The Obama administration is now looking for ways to square this circle, and create a more permanent framework for dealing with these issues. However, they apparently do not like their options. Simply expanding the current AUMF is unappealing. “You can’t end the war if you keep adding people to the enemy who are not actually part of the original enemy,” according to one person who participated in the administration’s internal debates. But relying solely on the constitutional authority of the President are not appealing either.

And while the administration may be correct that there is little political appetite for it, what is needed is a new authorization, allowing the executive broader authorities to kill or capture terrorists that target US interests, not just those connected to specific prior attacks. But these authorities must be coupled with judicial and congressional oversight procedures to protect against abuse or overuse. In fact, failure to create these authorities with built-in checks will encourage future presidents to rely on their inherent authority to act to defend the country from foreign threats, thus seizing all of the power with none of the constraints.

A more comprehensive “Counterterrorism Operations Powers Act” would create checks on the President’s powers, while still giving him the ability to carry out his duty to protect the nation. It would also help to elucidate the line between law enforcement situations and national security/counterterrorism situations.

Paul Taylor, Senior Research Fellow
Center for Policy & Research

UN to Investigate Drone Strikes

The United Nations has appointed a special rapporteur, Ben Emmerson, to investigate drone strikes in Afghanistan, Pakistan, Palestine, Yemen, Somalia, and the Sahel region of Africa.

The investigation was formally launched on Thursday in response to requests from Russia, China and Pakistan, and will look into drone strikes by the US, UK, and Israel.

Emmerson will select a “representative sample” of about 20 or 30 strikes to assess the extent of any civilian casualties, the identity of militants targeted and the legality of strikes. It beggars the imagination, however, that 20-30 strikes by at least 4 government agencies in at least 6 countries could be representative of much of anything, except possibly sample bias.

Emmerson has previously suggested that some drone attacks could possibly constitute war crimes. While this is certainly true, it could be said of any sort of attack. The fact that it is conducted by drone should make little if any difference to the calculus.

Emmerson also told the Guardian: “One of the fundamental questions is whether aerial targeting using drones is an appropriate method of conflict … where the individuals are embedded in a local community.” But again, the particular platform chosen to conduct the attack has little bearing on its legality or morality. It is how the platform is used that matters. The appropriate question is therefore not whether drones should be used, but whether any aerial strikes should be.

It is clearly important that the use of armed force by any state be carefully studied and it’s justifications questioned. This may be especially true when it is the world’s most powerful state that is conducting the operations. However, like many of the activities of the United Nations, it will remain to be seen whether the resulting report is an honest assessment of a difficult question, or is a purely political swipe by rivals.

Paul Taylor, Senior Research Fellow

Center for Policy & Research