The 2nd Circuit’s Disclosure Order: A Fresh Opportunity to Revive the Imminence Debate?

On 21 April 2014, the 2nd Circuit Court of Appeals reversed a lower court decision and ordered the US Department of Justice to disclose portions of a classified memorandum written by the Office of Legal Counsel around June 2010, providing legal justification for the targeted killing of Anwar al-Awlaki, an American citizen.

The court decided that the government waived its right to secrecy by publishing a Justice Department White Paper in 2011 and by making repeated public statements on the legality of targeted killings.

At the time of writing, it is unclear when the memorandum might be made public, or whether the government will seek review of the decision.

Although the plaintiffs had not challenged the legality of targeted killings, and the operational details in the memorandum were not affected by the disclosure order, the decision is a clear rejection of the policy of secrecy surrounding the US government’s targeted killings program.

Allegedly, the classified memorandum concluded that al-Awlaki could be lawfully killed, if he could not be captured, because there were reports that he was involved in the war between the US and al-Qaida and posed a significant threat to US citizens, as well as because Yemeni authorities were unable or unwilling to stop him. The sparse details left many wondering about the particular mechanism followed and the laws applied to reach the decision to kill him. Subsequent public statements, the White Paper (WP) and a Fact Sheet released by the White House in May 2013 tried to fill the gap and provide a domestic and international legal framework for the targeted killings of US citizens (and others) abroad. As regards domestic law, while President Obama acknowledged the paramount importance of due process, the WP trivialized (on pp. 5-6) the Mathews v. Eldridge (1976) test through a cursory weighing of private and public interests against each other. As regards international law, while official references to the law of self-defense and the law of armed conflict have been manifold, their applicability and inter-relationship has not been clarified.

It remains to be seen whether the partial disclosure of the memorandum, if effected, will revive the debate and bolster the scrutiny on the US government’s targeted killings program.

Among many concerns of the program, the concept of imminence in itself, and its schizophrenic association with both due process and the law of self-defense merit thorough review and discussion. Continue reading

A $15 Million Dollar Torture Partnership

Poland CIA Prison

By Amrit Singh

It has been common knowledge for a while that Poland hosted a secret CIA prison where Abd al Rahim al Nashiri and other prisoners now held in Guantánamo were detained and tortured.  As Warsaw and Washington struggle in vain to hide this truth from the public, fresh revelations from the Washington Post now confirm that the CIA paid Poland $15 milllion to host that prison. In early 2003, two senior CIA officers delivered the cash in large cardboard boxes to Col. Andrzej Derlatka, the deputy chief of Polish intelligence, and two of his associates.

This is significant news for many reasons. First, Europe’s top human rights court justheard oral arguments in two companion cases brought on behalf of al Nashiri and another Guantánamo prisoner, Abu Zubaydah. The cases challenge Poland’s participation in the CIA’s secret detention program. The fact that Poland received $15 million in cash as reward for its participation further confirms the overwhelming evidence the Court has already received in support of the applicants’ claims in these pending cases.

Second, news of the $15 million payment has created a public uproar in Poland. Even skeptics of the Guantánamo prisoners’ claims are now persuaded of Poland’s complicity in torture; and those who until now clung to the idea that this complicity was driven by lofty Polish ideals cynically recognize the power of money. It will be interesting to see how the Polish authorities decide to respond. Since 2008, they have been dragging out a pending (and ineffective) investigation into the CIA prison. The new revelations raise the question of whether domestic pressure, combined with the pending European Court proceedings, will compel the authorities to stand up to Washington and fess up to the truth. Fifteen million dollars seems a paltry amount for a country like Poland to receive for sacrificing its own constitutional ideals and facing potential censure before Europe’s highest human rights court. (Significantly, in December 2012, the court held that Macedonia had violated the European Convention through its participation in the secret detention and rendition of German national Khaled el Masri).

Meanwhile, in Washington, a 6,000 page Senate intelligence committee report on CIA secret detention and interrogation continues to be withheld from the public, despite the fact that the majority of the committee believes the CIA’s secret prisons and torture techniques were “terrible mistakes.”  It is not clear when this report will see the light of day and in what form. What is clear, however, is that the truth will come out one way or another, no matter how hard the Obama administration, the intelligence community’s allies, and Republican lawmakers try to cover it up.

Yesterday the news was about Macedonia’s complicity in CIA torture; today the news is about Poland; tomorrow it will be about Romania and Lithuania, which also hosted secret CIA prisons and also face litigation before the European Court.

Indeed, that the United States co-opted as many as 54 countries into unlawful CIA secret detention and extraordinary rendition operations may ultimately mean that there is only so much the administration can do to cover up the truth.  In the face of snowballing disclosures, the U.S. and its partners in torture would be well advised to own up to their responsibility before the truth emerges by other means to embarrass them.

(Crossposted from Just Security: A Forum on Law, Rights, and U.S. National Security)

Introducing Amrit Singh

Amrit Singh pic

It’s our great pleasure today to welcome Amrit Singh as an IntLawGrrls contributor. Amrit is Senior Legal Officer for National Security and Counterterrorism at the Open Society Justice Initiative. She is counsel in al Nashiri v. Poland, and al Nashiri v. Romania, cases pending before the European Court of Human Rights, and author of Globalizing Torture:  CIA Secret Detention and Extraordinary Rendition (Open Society Justice Initiative 2013).

Prior to joining the Open Society Justice Initiative, Amrit was a Staff Attorney at the American Civil Liberties Union, where she litigated numerous cases relating to immigrants’ rights issues and post-September 11, 2001 human rights abuses, including ACLU v. Dep’t of Defense, which yielded the public disclosure of the “torture memos,” among thousands of other government records relating to the Bush administration’s torture program.

Amrit is co-author (with Jameel Jaffer) of Administration of Torture: A Documentary Record from Washington to Abu Ghraib and Beyond (Columbia University Press 2007).  Ms. Singh has previously testified before the United States Congress on the subject of prisoner abuse and torture associated with the Bush Administration’s application of “enhanced interrogation techniques.”  She is a graduate of the Yale Law School, Oxford University, and Cambridge University, U.K.

Amrit’s first post  discusses revelations that the CIA paid Poland $15 million in 2003 to host a secret CIA prison.

Heartfelt welcome!

New Iran-US Claims Tribunal Judge: Rosemary Barkett

Image

Rosemary Barkett, 1992. Courtesy The Palm Beach Post

The U.S. State Department recently announced the appointment of Judge Rosemary Barkett as a U.S.-appointed member of the Iran-United States Claims Tribunal in The Hague. The International Center for Ethics, Justice, and Public Life provides a bit more background:

Former Chief Justice of the Florida Supreme Court Rosemary Barkett is leaving the United States federal appeals bench to join the Iran-U.S. Claims Tribunal, based in The Hague. Judge Barkett, who was born in Mexico and previously served as a Catholic nun in the Sisters of St. Joseph, became the first woman Florida Supreme Court justice in 1985. She was also the first female chief justice, from 1992 to 1994. She was appointed as federal judge of the 11th Circuit by President Bill Clinton and took the bench in April 1994.

‘Yesterday I lost a country’: Kathleen Cavanaugh on Iraq

Since 2003, Iraq has experienced significant political unrest and the emergence of ethno-religious divisions, writes Kathleen Cavanaugh of the National University of Ireland, Galway, over at OUPblog:

The ‘fear of sectarianism’ has undoubtedly shaped and formed how protest movements in Iraq (and indeed regionally) are constituted. There is a rootedness in the identity politics of the region, a ready-made framework within which these divisions are articulated. …

Politically, Prime Minister Nouri al-Maliki has used the past seven years to consolidate his power. … Yet there are cracks in al-Maliki’s power base and despite significant popular support in the polls, political challenges to his increasingly authoritarian rule and his Baghdad-centered governance (and policies) are growing. Within the legal landscape, despite notions of equality and rights embedded in the 2005 Iraqi Constitution and its accession to the UN Convention Against Torture in 2011, serious human rights violations remain, including the arrest and detention of persons “for prolonged periods without being charged and without access to legal counsel [as well as] prisoner and detainee abuse and torture.” …

[T]en years after the US invasion, what remains is not just a democratic deficit in Iraq, but a society and political system that is fractured and bruised. … Whatever leadership emerges in 2014, shedding historical hangovers and reimagining a political community that counter and undo the politics of sectarianism, in practice and discourse, will be a formidable task.

More at OUPblog.

(Image credit: Cross by Caroline Jaine)

U.N. Security Council Reform and the Duty to Decide

U.N. Security Council

The armed conflict in Syria, ongoing since 2011, garnered increased attention from the international community this week. First, the European Union did not renew an arms embargo on the Syrian opposition, thus allowing EU member states to make their own decisions about whether to provide military resources to parties to the conflict. Then, Russia announced that it intended to uphold a defense contract to provide weapons, including air defense systems, to the Syrian government. These developments have frustrated efforts led by the U.S. and Russia to initiate peace talks between Syrian President Bashar al-Assad and the Syrian opposition in Geneva in June. U.S. Secretary of State John Kerry was critical of Russia’s decision, saying “[i]t is not helpful to have the S-300 transferred to the region while we are trying to organize this peace [conference] and create peace.”

Notably absent from the headlines is the U.N. Security Council. The Council’s heavily criticized handling (or lack thereof) of the Syrian conflict shows that despite the fact that the Council has “primary responsibility for the maintenance of international peace and security,”[1] it also has no legal obligation to take actions or make decisions on crises that arise within the scope of its mandate. In my recently published article in the Harvard National Security Journal, I argue that it should. The Security Council is the only governing body with the legal authority to authorize binding measures necessary to restore peace and security, yet neither the United Nations Charter nor the Council’s own rules clarify the extent of its obligations. Unlike courts, the Security Council lacks a procedural rule establishing that it has a duty to decide. As a result, Security Council members can, and frequently do, defer making decisions in politically difficult cases. The costs of this ambiguity to those who depend on the Council for their security are high, making debate about reform critical and necessary.

In my article, I propose a model of reform that focuses on improving the Council’s decision-making practices through the adoption of three new procedural duties. First, the duty to decide would require the Council to take up decisions about whether or not it will take action in crises under its jurisdiction. Second, the duty to disclose would require the Council, when it takes no decision in a particular situation, to publicly disclose its reasoning for not doing so. Third, the duty to consult would obligate the Council to take reasonable measures to consult those nations, and the people therein, most affected by decisions falling under its Chapter VII authority regarding sanctions, intervention, and the use of force.

This framework provides a method of reform that places the Council in control of instituting changes to improve its decision-making process. I argue that unlike many other reform proposals, this approach is viable because it has the capacity to improve the Council’s effectiveness and address some of the common critiques of the Council’s lack of accountability and transparency, while still affording the Council the ability to control reform through the adoption of new procedural rules. Drawing upon statements made by U.N. Security Council Members and other U.N. members at the fifth Open Debate on the Working Methods of the Council meeting in November 2012, I show that there is considerable support for engaging in procedural reform and that such reform offers a viable pathway for initiating change at the Security Council. I also draw upon theoretical insights from international legal process theory, social psychology and negotiation theory to explain under what conditions procedural reform is effective and why it matters. For example, establishing the duty to consult is important because empirical research shows that increasing participants’ process control improves their perceptions about the fairness and legitimacy of the outcome.[2]

Ultimately, reform is necessary if U.N. Security Council is going to remain the shepherd of international peace and security. The proposed duties to decide, to disclose and to consult offer a politically viable start. However, I also recognize that procedural reform cannot and should not be a substitute for the more complex and difficult conversation that needs to take place about the purpose and function of the Security Council in the 21st century. One of the critical questions the Council faces, as the Syrian conflict has demonstrated, is whether or not the Council intends to assume responsibility for global peace and collective security. As the Open Debate showed, many U.N. members assume that the Council is concerned with regional security, civil wars and other threats to the peace that do not fall within the scope of situations envisioned in Article 39 at the end of World War II.

Such expectations are based on the presumption that the Council is responsible for collective peace and security globally. If the Security Council  is not going to be the locus for collective peace and security, we face an era where other organizations such as NATO and individual nations will intervene into armed conflicts in the Council’s absence. For these reasons and more, the Council’s responsibility for peace and security given today’s realities must be defined and confirmed. Until that happens, procedural reform offers a pathway toward improving the way the Council operates while the world waits for comprehensive reform.


[1] U.N. Charter Article 24.

[2] JOHN WALTER THAIBAUT & LAURENS WALKER, PROCEDURAL JUSTICE: A PSYCHOLOGICAL ANALYSIS 117–124 (1975).

The President & the prison camp

justiceflagsPresident Barack Obama was waiting for the question. That was made clear by the force and length of his Tuesday comments on Guantánamo, where the United States has imprisoned upwards of 800 noncitizens over the course of the last 11 years. As posted, right now many of the remaining 166 detainees are refusing to eat. Nearly 2 dozen of the 100 hunger strikers are so weak that the government is force-feeding them, and sending in more medics to aid the effort. Thus came CBS reporter Bill Plante’s question at a presidential news conference:

‘Q: Mr. President, as you’re probably aware, there’s a growing hunger strike at Guantanamo Bay, among prisoners there. Is it any surprise, really, that they would prefer death rather than have no end in sight to their confinement?’

“It is not a surprise to me,” Obama began, then followed with an I-told-you-so response. As indicated in the full transcript, Obama reminded reporters that closure of the post-9/11 camp had been a centerpiece of his 2008 presidential campaign. GTMO, he said, “is not necessary,” “not sustainable”: “It is expensive” and “inefficient,” a practice that “hurts us in terms of our international standing,” that “lessens cooperation with our allies on counterterrorism efforts,” and that operates as “a recruitment tool for extremists.”

All this was true in 2007, as the President said. It remains true in 2013. So why’s GTMO still open?

Obama placed the blame squarely at the feet of Congress, contending that legislation had blocked his efforts to transfer detainees. But that explanation failed to acknowledge the Administration’s role in the current state of affairs:

► The day after his 2009 inauguration, Obama did sign a close-GTMO-in-1-year order. But he did not put full political capital behind it, concentrating instead on the health care overhaul, and so the year’s deadline came and went.

► Congress did hamstring detainee transfers. But Obama never tested his complaint that this legislation could be unconstitutional. What’s more, The New York Times’ Charlie Savage reminded in a “News Hour” segment Tuesday, Congress relaxed its restrictions in 2012, yet “the administration has not exercised that authority once.” Yemenis make up “56 of the 86 detainees long since approved for conditional release,” Savage said, adding that “it is Mr. Obama’s own self-imposed ban on any transfers to that country which has primarily kept them locked up.”

terror► Many in Congress did favor GTMO military commissions. But as Wall Street Journal reporter Jess Bravin writes in his new book, The Terror Courts, it was because of the insistence of an official Obama had placed at the Pentagon, then-Defense General Counsel Jeh Johnson, that the commissions did not end with Obama’s election. Bravin reports that only after that decision was made did Johnson discover the abysmal shape of the case files he’d inherited. Most cases are not much further along than they were when I observed commissions proceedings ‘way back in December 2008 (and made the photo at top). Moreover, acceding to continued GTMO prosecutions has undermined the Administration’s professed preference for trying terrorism suspects Stateside – a fact demonstrated in last month’s calls to label the Boston Marathon arrestee an “enemy combatant.”

It’s to be hoped that Obama fulfills his new promise to put GTMO on his policy agenda – that he “re-engage[s],” and not only “with Congress,” as he put it during the press conference, but also with officials in his own Executive Branch, to end both the camp and the endless-detention regime for which it stands. As Obama said:

‘[T]he notion that we’re going to continue to keep over a hundred individuals in a no man’s land in perpetuity, even at a time when we’ve wound down the war in Iraq, we’re winding down the war in Afghanistan, we’re having success defeating al-Qaida core, we’ve kept the pressure up on all these transnational terrorist networks, when we’ve transferred detention authority in Afghanistan — the idea that we would still maintain forever a group of individuals who have not been tried — that is contrary to who we are, it is contrary to our interests, and it needs to stop.’

To which should be added: As I’ve written here, here, and here, practices have contravened not just “our interests,” but also our settled laws.

(Cross-posted from Diane Marie Amann)

Jayne Huckerby to Direct Duke’s New International Human Rights Law Clinic

Photo of Jayne HuckerbyA heartfelt congratulations to Jayne Huckerby (right) (photo credit) on her appointment as Associate Professor of Clinical Law and director of a new international human rights law clinic at the Duke Law School!  Ms. Huckerby will bring to Duke a decade of cutting-edge human rights research and advocacy experience in the areas of gender and human rights, constitution-making, national security, human trafficking, transitional justice, and human rights in U.S. foreign policy.

Duke’s new clinic will offer students the opportunity to engage in four types of human rights projects: applying a human rights framework to domestic issues; advocating for human rights in foreign countries where human rights standards are nascent or absent; engaging with international institutions to advance human rights protections; and analyzing the human rights implications of U.S. foreign policy, including counter-terrorism initiatives that cause collateral gender-based harm.  The clinic will officially launch at the beginning of the spring 2014 term.

Congratulations!

Conference to address drone strikes, cyber war, role of international law

On Friday 22 March, Vermont Law School will host a conference on “Reaching Critical Mass: International and U.S. Law in the Wake of Modern Exigencies.” The conference will explore issues in protecting against modern security threats while observing international law and protecting human rights.  Panelists include:

JenniferDaskalJennifer Daskal, former counsel to the Assistant Attorney General for National Security at the Department of Justice and former senior counterterrorism counsel at Human Rights Watch; author of the recent op-ed in the New York Times, Don’t Close Guantanamo.

VickiDivollVicki Divoll, former general counsel to the Senate Select Committee on Intelligence and former deputy legal adviser to the CIA’s Counterterrorism Center; author of the recent op-ed in the New York Times, Who Says You Can Kill Americans, Mr. President?

NazModirzadehNaz Modirzadeh, who leads the Counterterrorism and Humanitarian Engagement Project of the HLS-Brookings Project on Law and Security, Harvard Law School. Her article “The Dark Sides of Convergence: A Pro-Civilian Critique of the Extraterritorial Application of Human Rights Law in Armed Conflict,” U.S. Naval War College International Law Studies (Blue Book) Series, was awarded the Lieber Prize by the American Society of International Law.

GaborRonaAmong the additional distinguished speakers at this conference is Vermont Law School alumnus Gabor Rona, JD ’78, International Legal Director of Human Rights First.

JohnMcGinnisA keynote address will be delivered by John O. McGinnis of the Northwestern University School of Law (right), whose remarks are titled “Should International Law Be Our Law?”  For the conference schedule and full list of speakers, click here.  To register, click here.  As readers will see from the array of speakers, we anticipate robust discussion throughout the day.

The speaker list reflects the collaboration of the two student groups at Vermont Law School that partnered to organize the conference, the International Law Society (ILS) and the Federalist Society, led by conference co-chairs Molly Gray and Richard Sala. Before coming to Vermont Law School, ILS co-chair Molly Gray MollyGray(left) was Congressional Affairs adviser to the ICRC in Washington D.C.  She led field missions to Haiti, Uganda, Georgia, the Western Balkans, and the Democratic Republic of the Congo. Vermont Law School’s Federalist Society president Richard Sala (right) RichardSalais a Captain in the Marine Corps. His operational experience includes operations in Kosovo as a member of NATO’s Kosovo Strategic Force and a tour in Iraq in support of Operation Iraqi Freedom. The partnering of these two student groups in putting on this conference reflects sincere efforts to explore and understand some of the most important international legal issues today.