I heard you like black sites

Hey Donald, I heard you were reconsidering CIA  black sites overseas. I have a few notes for you. It will take more than 140 characters or less to explain the obligations of human rights law under counter terrorism, but I am hoping against hope you will pay more attention to this than you do your own intelligence briefings. 

Let us first agree on what we colloquially refer to as a “CIA black site”: those are secret prisons, detention facilities operated by the Central Intelligence Agency in which detainees are held incommunicado (without access to a lawyer, without knowledge for the International Committee of the Red Cross), for indefinite amounts of time, without charge or trial, and subjected to ill-treatment and torture for the purpose of interrogation. Those “black sites” – a shameful collection of legal black holes, where truth, memory and sunlight never shine – were built overseas.

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The reason they were built overseas is because of legality. This is no secret our profession bypassed ethics (albeit successfully, to our greatest dismay and fatal sadness) in the name of a government-led and government-approved definition of security. The Convention Against Torture, adopted by the General Assembly in 1984, holds torture as an absolute prohibition. The reservations emitted by the US Congress during the ratification process in 1992 established a definition that made torture only possible overseas, outside US jurisdiction – physical custody or control of another party. And thus, Donald, if you want to lift the ban on the use of torture on terrorism detainees, you will need partner countries to assist you in reviving a horror that is very much present: 41 men are still held in Guantanamo Bay, after having transited through one of those sites. I am here to tell you that you will not get what you want, at least not from European member-states. See, we have obligations to uphold: we have a Court tasked with trying violations, and an entire supranational Committee which mission is to ensure the enforcement of this Court’s judgments.

In a hearing in that same Court in December 2013, UN Special Rapporteur on human rights while countering terrorism, Ben Emmerson QC, described the CIA Rendition, Detention and Interrogation (RDI) programme as a “vast conspiracy”. It is: the number countries that have assisted the United States illustrate a form of international deference to the war on terror and the damage it spurred, to the detriment of efficacy and human rights. The Parliamentary Assembly of Council of Europe (PACE) has conducted two investigations into states’ collusion with the CIA, one via the rapporteur Dick Marty in 2006, and another via the rapporteur Claudio Fava in 2007. Both yielded reports that represent a seminal work of independent parliamentary scrutiny. In early 2016, the European Parliament closed its investigation, reaching the same conclusion: not only were states aware that this was happening, they chose not to collaborate with investigations, and raised classification issues. All of this works in the Trump administration’s favour. A culture of secrecy largely cultivated under transnational security agreements; his Democratic predecessor’s distaste of judicial scrutiny and accountability; a conflict in Syria that never ends, creating millions of refugees and destabilising the entire region. A celebrity fascist was elected because Americans, on top of being angry, were afraid. Europeans, on top of being afraid, are also angry at what took place in Paris, Brussels, Ankara, and Berlin, to name a few.

Ireland, the United Kingdom, Romania, Poland, Lithuania, Italy, Macedonia did everything from facilitating the CIA jets’ refuel, to building black sites on their own territory. To this day, only Italy has carried out a domestic investigation into its own intelligence services’ collaboration with the CIA, resulting in the conviction of CIA agents in absentia. The case itself is fraught with procedural errors, deliberate smokescreens, and abusive use of state secrets. Poland has been found guilty by the Court, and now finds itself in the position to ensure Al-Nashiri’s trial and sentence. None of those states have disclosed the agreement – called a memorandum of understanding (MoU) – with the Court, presumably to preserve their special relationship to the CIA, invoking the absolute necessity to remain on the US’ good side while they seek to participate in the purported “eradication” of terrorism. All of this, again, works in the US’ favour. Except for this tiny, insignificant, fraction of a detail: the rule of law.

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Now, we know. It’s been a long, painful and traumatic road since the first rumours, investigations, and articles about secret Gulfstream IV jets flying unidentified “detainee combatants” from one secret prison to another first came light. The European Court of Human Rights has issued a judgment that clarifies that, even in the absence of disclosure of those MoUs, there had been enough substantiated and corroborated evidence published in the press and through legal and academic research to make a conclusive finding on a gross violation of human rights law. A report compiled by the Senate Special Committee on Intelligence (SSCI), still classified but with its executive summary released in December 2014, remains an formidable excercise of domestic parliamentary scrutiny. The SSCI report, dubbed the CIA torture report, reveals the location of several black sites, the budget the CIA required to carry out that programme, in addition to recordings of interrogation sessions, legal memos in preparation of the establishment of the policy, and photos obtained through the Freedom of Information Act. The question, at this point, is whether the truth is as objective as it should be, and if its existence can replace accountability.

For all the bragging and boasting about enjoying the infliction of long term and damaging suffering on other human beings, for all the speeches given at Langley on extending covert operations, you have not created anything. You are simply considering lifting a ban on a period of American history that has not seen any closure because of an admission the government had “tortured some folks”. The United States is still in violation of UNCAT for refusing to prosecute officials that have authorized the use of torture. For the lawyers, this has led to successful careers. For the military, “harsh interrogation” is still present in the books. The black sites, meanwhile, enjoy a second life: the building in Temara, Morocco, has been used, once the CIA had left the premises, by the domestic intelligence agency to torture dissidents. Wherever the CIA has visited and stayed, visible scars are identifiable. Wherever the CIA tortured in secret, the impunity is perpetuated. Lifting the ban Obama enforced in 2009 isn’t the hawkish, vicious, cynical, dangerous and violent regime the Electoral College wished into existence. It is a pathetic, weak, ignorant, and self-destructive vision of counter-terrorism.

Torture is not efficient. Torture does not provide reliable intelligence. Torture has never made a country safer. Torture has never facilitated the end to illegitimate political violence. The unlawful detention of hundreds of men, some of them sold to US forces by bounty hunters and acknowledged as having suffered on the basis of false information, testimonies or mistaken identity, has provided ammunition for insurgency, has encouraged the use of imagery for the dissemination of similarly atrocious behaviour, and has stripped the United States and participating countries of any legitimacy in denouncing, and acting against, other states engaging in such horrific operations. It has reawakened the trauma of those same interrogation methods used in Northern Ireland at the height of its own conflict, mentioned in the footnote of a legal memorandum discussing, at length, how much pain can be inflicted on a human being without crossing an admittedly arbitrary threshold. You are not making America great again, Donald. You are simply returning to a very recent place in time when large-scale, international security operations were launched to the detriment of the rights of the victims, circumventing international law and international institutions, in the name of an irrational appetite for vengeance.

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Whatever the domestic framework, if you attempt to hire John Yoo again, will be hindered by the current National Defense Authorization Act (NDAA), through an amendment introduced by Sen. Dianne Feinstein; it will be blocked by the Detainee Treatment Act (DTA), both texts acknowledging the veracity of reports of the CIA’s conduct, and furthering the importance of ECtHR rulings against offending states. But most importantly, torture is an absolute prohibition; a war crime; indefinite detention without charge, the refusal of access to a lawyer, the denial of access to the ICRC, the removal of detainees to a military base, are violations of both humanitarian law and human rights law; several protocols of the Military Commissions Act (2006) violating fair trial rules. Donald, this is simple: the only national security position you are entitled to take in regards to the RDI programme is instructing the Department of Justice to prosecute officials that have created the programme, the private contractors that have devised interrogation methods, the intelligence agents that have supervised it and carried it out, as well as cooperating in every possible way with every request emitted by the ECtHR in order for our organization to respect our own obligations. Anything else would be in violation of international law; and every step of the way, there will be lawyers, legal academics, researchers, and journalists ready to expose the mechanisms you will use, because we know them by now.

You will drown under the weight of lawsuits, and you are already at odds with the medical professionals that had once assisted the 43rd President of the United States. For every government lawyer that will attempt to argue our role, as international human rights lawyers, is illegitimate foreign interference, that we are a fifth column, there will be the survivors of Guantanamo Bay to testify of what they have been through, there will be the families of victims of terrorism that seek fair redress, and there will be judicial oversight of counter-terrorism operations reaffirming that efficiency is a human rights obligation resting upon states. Including the United States. Including you, as the depositary of executive authority.

The only way to rid your administration of those pesky international lawyers such as myself is to comply with international law. There is no way around it. To quote the wonderful Linda Sarsour, a Palestinian-American who marched against you in DC, “I will respect the presidency, but I will not respect this president”. On this note, I bid you good night, Donald, and there is no need to tweet at me at 2 in the morning. 

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The case for re-opening the Gibson Inquiry

“They were accusing me of fighting with Bin Laden in the battle of Tora Bora; of being in charge of weapons stores; of being a terrorist recruiter – though I’d only been in Afghanistan for a few weeks. I start to try to talk but everybody is just shouting and screaming around me. Then suddenly I feel it – douff – this American guy grabs me by the head, and he slams it backwards against the wall. In my mind I think I must try to save my head so I tried to bring it forwards, but as soon as I do he grabs it again and bashes it: douff, then back again, douff, douff, douff.”

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In a interview with the Daily Mail published on December 12, 2015, Shaker Aamer reenacts being hogtied during interrogations at Bagram Air Base, Afghanistan.

Shaker Aamer may be one of the most notorious of Guantanamo detainees, imprisoned on a naval base that once housed more than 700 “enemy combatants” in the so-called war on terror. The ordeal he suffered at the hands of US interrogators during 13 years of detention, as a British national, will not be the subject of a legal challenge against the United Kingdom he accuses of collaborating with his captors: “I do not want to prosecute anybody. I do not want anybody to be asked about what his role [was] in the past. I just want people to tell the truth (…) I don’t believe the court will bring justice because of what happened in the past.

Although we seem to know quite more about him than we do about other prisoners, there is a still a lot that remains unknown, mostly the treatment to which he has been subjected. An independent psychiatric evaluation ordered by his lawyers in late 2013 and released in early 2014 paints a picture of non-therapeutic medical administration, force-feeding, repeated beatings, and submission to the infamous “enhanced interrogation techniques”, or EITs, investigated by the US Senate’s intelligence committee.

Shaker Aamer is not the only victim of British collusion in the CIA’s rendition, detention and interrogation (RDI) program. Belhaj, a dissident who fled Gaddafi’s Libya, was flown back and thrown into the jails were he was submitted to torture, courtesy of the MI-6. Several other detainees recall being transferred to Guantanamo via the base in Diego Garcia, a British overseas territory. Shaker’s prolonged detention – he was cleared for release twice, in 2008 under Bush and in 2009 under Obama, only to see British soil in October 30, 2015 – gained political traction and mass outrage thanks to media coverage and a strong push in Parliament. For a decade, the UK government has replied to calls for information with the same line: that they had sought assurances from the US government that the last remaining British national was receiving fair treatment, and that any conditions of release, if it was to take place, would be solely a matter for US authorities. For a long while, campaigners for Shaker thought he would die in Cuba, without charges, without a trial, and submitted to abject treatment.

Shaker Aamer survived, and is now reunited with his wife, three sons, and daughter. It is a testament to his resilience that he is capable of recalling what he was forced to endure, and feels ready to speak. Many, including former Scottish first minister Alex Salmond, called for former Prime Minister Tony Blair and his former Foreign Secretary Jack Straw to answer questions on Aamer’s detention and continued collaboration with US authorities under the cloak of the “special relationship” that has come to signify gross human rights violations; it is absolutely necessary that the truth emerges. This would not, however, be the first attempt. The Detainee Inquiry, also referred to as the Gibson inquiry, shelved in 2012, released an incomplete report in December 2013 that left many questions unanswered, while raising brand new ones that some feared would never be addressed. The document isn’t as unnecessary and useless as its harshest critics claim. While not shedding light on many areas touching on intelligence-sharing and the modus operandi of British security services in their relationship with American counterparts, it clearly identifies key issues. 

Shaker Aamer’s release, his accusations against the British government, against Tony Blair, and the security services are an opportunity to open an inquiry – not just on Aamer’s detention, but on collaboration in the RDI program as a whole. The momentum is one not to be missed: in addition to Shaker’s release, it has been a year since the US Senate (SSCI) released the executive summary of its own investigation of the CIA torture program; the European Parliament, through a resolution passed in February 2015, has also launched a third inquiry into EU member states’ participation, and accountability systems, in the 8 year long program that claimed many lives and remains a kafkaesque nightmare to this day. It should therefore not be an insurmountable obstacle for British officials: the blueprint already exists.

“We tortured some folks”: A question of truth

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Obama, during a White House press conference on August 1st, 2014: “When we engaged in some of these enhanced interrogation techniques, techniques and that I believe and I think any fair minded person would believe were torture, we crossed a line. And that needs to be understood and accepted.”

 

The Convention Against Torture specifically provides mechanisms of accountability at domestic and international level; most importantly, it makes it an obligation to investigate, prosecute and sentence perpetrators of what is considered an absolute prohibition. Obama’s 2014 speech and that saddening line, “we tortured some folks”, urging the general public to make political amends but move on beyond a previous administration having simply erred in pushing interrogation to the brink of torture, is not enough. It is not satisfying the legal standard. It is not satisfying in terms of moral responsibility. It is not looking at the ethics of the Yoo and Bybee memos. As national organizations engaged in a years-long battle to face their own collaboration, as the APA did, finally passing a motion this summer to ban its members’ participation in interrogations conducted by the CIA and/or the Pentagon, there is simply silence at the highest level of the executive.

There is no US exceptionalism. Everywhere, a blanket denial is applied to any attempt to investigate CIA rendition and the torture of terrorism suspects worldwide. Chastised by the European Court of Human Rights in a July 2014 judgement for negative inference, Poland continues to deny it has ever been complicit in the Stare Kiejkuty black site that once covered up the detention and torture of at least Al-Nashiri and Abu Zubaydah. Ireland, which would have let the CIA’s Gulfstream IV jets land at Shannon Airport for refuel, has arrested two of its TDs (members of Parliament) for trespassing as they investigated. Romanian authorities have also denied knowledge of CIA activities despite Bright Light being located in the basement of Bucharest’s City Hall. The second EU report on collaboration in rendition, compiled by rapporteur Claudio Fava in 2007, lists the names of heads of states and defense secretaries who refused to testify before him in the course of his inquiry, citing national security exemptions. The latest hearing led by the European Parliament’s committee investigating rendition has also recited a long list of states and their officials refusing to collaborate or continuing the now well-rehearsed line that the CIA would have operated for years in at least 14 European member states without anyone’s knowledge.

The battle must continue; the right to truth must be achieved, and if judicial activism seems to be on the side of some inquests – for instance, the Al-Hawsawi case in Lithuania – it’s representative instances in democracies that most often push against the executive Glomar responses and insist on transparency. In the UK, the Joint Committee on Human Rights conducted a public hearing in March 2014 questioning the little mechanisms of accountability and transparency in war on terror, revealing most MPs do not possess the necessary security clearance to access documents related to the activities of intelligence agencies. In France, however, the push was external – through the lawsuit of two former Guantanamo detainees of dual French and Moroccan citizenship seeking reparations for their treatment before French courts. The proceedings long stalled due to French judicial authorities showing reluctance to demand cooperation from US officials, but eventually summoned the former Guantanamo chief, Gen. Miller, to testify. The process is still ongoing. Italy famously convicted 12 CIA agents in abstentia for the rendition of Abu Omar, abducted in Milan, but the Italian Prosecutor failed to obtain convictions for agents of the SISMi, citing state secrets opposition.

The work of an inquiry as vast and difficult as that of the Gibson Inquiry requires time; and time requires the push for action to be maintained. However, the lack of accountability and the complete culture of impunity has left the idea of torture to fester and arise at the first sign of revived trauma. While the release of the SSCI report was celebrated, and for good cause, despite only being a partially redacted executive summary, the results – shocking, nauseating, and a surprise for some – did not yield an charges, let alone convictions. No investigation has been launched. Torture leaves traces. It seeps into the fabric of society in a way that leaves it permanently tainted, and seeks to re-appear after any apparent vulnerability. Without accountability for crimes of torture, the lingering question masquerading as a legitimate debate – does torture work? – continues to be omnipresent and places anti-torture advocates and victims in a situation of having to defend their innocence, as if anything could have justified the treatment they suffered.

And so it happened following the November 13 attacks on Paris, in which 130 people died in the city of lights, the largest attack on French soil since World War II. Suddenly, the threat posed by ISIS, until then elusive on western territories, became very real, and the state response to it, inflated at a high and perhaps unnecessarily rapid rate. In the US Congress, debating a possible new authorization for the use of military force (AUMF) against this new traveling, transnational enemy, Senator Lindsay Graham opposed the closing of Guantanamo; his colleagues reiterated the tired argument of the necessity and efficiency of torture in the face of such a grave threat. Until the truth comes out and is maintained in the public discourse, at government and popular level, that acts of torture are unspeakable ignominies that do not belong in a democratic society, torture will continue to be perpetrated. It will not just be applied to a foreign, distant enemy in covert, extraterritorial prisons: the mechanisms and protocols might also be used by domestic law enforcement against citizens, so convenient the practice is to obtain confessions and recruit informants. Torture, once granted right of passage on a society, tends to stay, unless it is effectively, with the gravitas that it deserves, condemned unequivocally.

An amendment to the National Defense Authorization Act (NDAA) in the US, proposed by Sen. Feinstein, who was Chair of the committee investigating CIA torture, bans the use of torture in the US in the conduct of war – but as psychologist and former APA member Dr. Jeffrey Kaye explains, this does not remove the methods detailed in the Army Field Manual’s Appendix M, nor does it change the 1990 Congressional reservations emitted during the process of ratification of the Convention Against Torture: as long as those are maintained, the US understanding of what constitutes torture and where it applies are in stark contradiction with the requirements of the UN Committee Against Torture, as mentioned in the country’s 2014 review.

While EU member states are bound to the European Convention on Human Rights, banning torture as well as cruel, unusual and degrading treatment in its Article 3, the available domestic remedies are not being used to their full potential, and it is likely that the ECHR’s caseload on CIA rendition cases will continue to increase as Guantanamo and/or Bagram detainees possibly access a lawyer. None of that is new for the European Union, as “legacy” cases – historical inquiries – related to British military intelligence activities in Northern Ireland between 1971 and 1998 are only just emerging. This includes the documents provided by the British government to that same Court of human rights, in an application made by the Republic of Ireland against the United Kingdom. In 1978, the ECtHR ruled that those methods of coercion during interrogation did not amount to torture. 23 years later, the US would use this decision, and British past counter-terrorism policies, to justify and legitimize theirs.

“A slap and a tickle”: from Northern Ireland to the Bradbury memo

96. Twelve persons arrested on 9 August 1971 and two persons arrested in October 1971 were singled out and taken to one or more unidentified centres. There, between 11 to 17 August and 11 to 18 October respectively, they were submitted to a form of “interrogation in depth” which involved the combined application of five particular techniques.

These methods, sometimes termed “disorientation” or “sensory deprivation” techniques, were not used in any cases other than the fourteen so indicated above. It emerges from the Commission’s establishment of the facts that the techniques consisted of:

(a) wall-standing: forcing the detainees to remain for periods of some hours in a “stress position”, described by those who underwent it as being “spread eagled against the wall, with their fingers put high above the head against the wall, the legs spread apart and the feet back, causing them to stand on their toes with the weight of the body mainly on the fingers”;

(b) hooding: putting a black or navy coloured bag over the detainees’ heads and, at least initially, keeping it there all the time except during interrogation;

(c) subjection to noise: pending their interrogations, holding the detainees in a room where there was a continuous loud and hissing noise;

(d) deprivation of sleep: pending their interrogations, depriving the detainees of sleep;

(e) deprivation of food and drink: subjecting the detainees to a reduced diet during their stay at the centre and pending interrogations.

The Commission’s findings as to the manner and effects of the application of these techniques on two particular case-witnesses are referred to below at paragraph 104.

97. From the start, it has been conceded by the respondent Government that the use of the five techniques was authorised at “high level”. Although never committed to writing or authorised in any official document, the techniques had been orally taught to members of the RUC by the English Intelligence Centre at a seminar held in April 1971.

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Nine of the Hooded Men. (c) The Irish Times, December 2014

Those methods, here described in para. 96 and 97 of the ECtHR ruling in the Ireland v United Kingdom case (referred to as the “Hooded Men” case, as the applicants would come to be called) bear striking resemblance to methods employed by the CIA as described in a 2004 internal memo, partially declassified in 2009. It was around the same period that the “torture memos“, authored by government lawyers Yoo and Bybee, would be released, showing reliance on the legal decision (footnote 37) rendered by the Strasbourg Court in 1978 that these interrogation techniques, while in breach of the Convention, did not amount to torture.

Blurring the lines is exactly what the CIA did, has done, and continues to do when it comes to defending its rendition program. While the SSCI report’s executive summary goes in somewhat excruciating detail, it is because it is necessary to decide whether or not the Court has raised the threshold of that dotted line between cruel, unusual and degrading punishment, and torture as defined by the 1984 UN Convention. It became extremely convenient when CIA black sites routinely used sensory deprivation, “noise torture”, and methods of rapport-building with interrogators aimed at provoking psychological disorientation. In a paper called “Torturing the brain“, published in 2009, neuroscientist Shane O’Mara, a researcher at Trinity College Dublin, explains that those methods are not just coercion with the purpose of obtaining information; the long-term effects can affect the neurological structure and chemistry of the brain. O’Mara, whose book released at the end of November this year aims at answering in a scientific manner the never-ending fallacy of the efficiency of torture, may have provided information changing the threshold of acceptable treatment.

Relying on the 1978 ECtHR decision will soon prove difficult for the CIA and other advocates of the rendition program, in the US and overseas: a RTE investigation, “The Torture Files“, based on research conducted over decades by Northern Ireland-based legal charity the Pat Finucane Centre, showed that the British government deliberately misled the Court by handing over incomplete documentation on those methods. Ireland has agreed, in December 2014, to support re-opening of the case, currently under judicial review in Belfast. Because the CIA rendition program and the SERE protocols in place in Guantanamo strongly rely on the MI-5 activities in Ulster, a revision of the past, the legacy of early counter-terrorism legislations, orders, and directives in Europe will affect the process of accountability across the world; the methods of intelligence gathering will be revised, and the permanent political rhetoric surrounding the so-called exemption to the prohibition of torture – terrorism – now can be dismantled. It was affirmed in the judgement that the use of torture on suspected IRA members – whether they proved to be confirmed IRA or not – further radicalized the organisation and prolonged the war: the response to the introduction of the Internment in 1971 – administrative terrorism detention without charge – “surprised” the British government by its effects on a population already considering itself at siege.

In an opinion piece penned by Sen. Feinstein and published by the New York Times in November, the Senator calls for the closure of Guantanamo, speeding up the military commissions process, the enforcement of the decisions of the parole review boards, and, ultimately, end a program and a policy of detention that she admits has become in itself a national security threat. Referring to ISIS dressing up their hostages in orange jumpsuits similar to those worn by Guantanamo detainees, she concludes that ill-treatment, abuse of power, unlawful detention, and general conduct of counter-terrorism outside of legal framework provided by the Geneva Conventions contributes to legitimizing violent response against US forces wherever they are deployed.

It is necessary to specify that the policy the ECtHR details in the introduction to its final judgement was ended in 1974, but torture and ill-treatment by military intelligence continued in Northern Ireland well until a successful peace process could be implemented. The threat posed by the IRA was considered too much of a risk for civilians, both in Ulster and in England, that any method to infiltrate the organisation or obtain information from suspects when captured was politically endorsed. Several euphemisms, again, not unlike that of “enhanced interrogation techniques”, were used by British authorities to hide the dangerous and horrifying reality of their actions. It took Northern Ireland that long to face its past and accept to dig into it, regardless of how scared it was of what it’d find; but there can be no peace without justice, and no justice without truth. From both sides of the Atlantic, western states have to ensure, the sooner the better, that accountability for the crimes they committed in the name of their security is underway. Obama’s desire to turn over a new leaf and continue down its path is unsustainable. The United Kingdom, in 2015, has now failed two opportunities to stop its practice of torture in the name of counter-terrorism. Re-opening the inquiry in parallel to supporting the investigation of legacy cases in Northern Ireland would be unprecedented, but historically significant.

The duty of investigation as guarantee of no-recurrence

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A bomb exploded outside the MI-5 Palace Barracks in Holywood, Northern Ireland, in 2010. R-IRA claimed responsibility for the attack. (c) The Irish Times

 

“There is a need for mechanisms which are apt to examine the more structural and systemic dimensions of the rights violations and abuses of the ‘Troubles’. Such mechanisms should be in addition to, not as a substitute for, procedures that might bring satisfaction to victims in terms of truth and justice.” (…)

The human rights expert cautioned that cases leading to death have received most of the attention, leaving out serious other violations, ranging from illegal detention to serious injury and torture, among others.  “These victims, many of them in situations of particular vulnerability, and they deserve urgent attention,” he underscored.

“I am calling for a comprehensive redress and prevention policy, which must encompass also strategic work towards an integrated schooling system, including on history teaching, the establishment of a trustworthy entity to deal with records and archives on the ‘Troubles’ and more emphasis on psychosocial support to victims and their families.”

This statement from Pablo de Greiff, the UN Special Rapporteur on the right to truth, justice, reparations and guarantees of non-recurrence was released via the Human Rights Council on November 19, 2015 following a 10-day visit in England and Northern Ireland. Such a position as independent expert of the UN Special Procedures mechanisms highlights truth and justice as fundamental rights, pillars of the guarantee of non-recurrence, which translates into accountability as an institutional duty not to engage in those violations in the future.

The duty of investigation is set out in Article 2 of the ECHR; it demands, requires, places an obligation upon member states to seek truth and justice in any exposed and alleged violation of human rights as set out within the Convention. Northern Ireland has relied on Article 2 to maintain the possibility of opening “legacy cases” in its domestic courts, a process under threat by the current Cameron government to repeal the 1998 Human Rights Act, repeal its territories from the jurisdiction of the Convention – this includes Northern Ireland, as national security issues do not benefit from devolution.

As mentioned before, the responsibility to investigate and prosecute perpetrators of torture is also set out in the 1984 UN Convention Against Torture, in both article 4 and article 12. The focus on the responsibility, the requirement to investigate is framed as just as important as the need to prevent from being committed. The language is, at first sight, difficult to interpret outside and beyond what was intended by the authors of the Convention, but the US and the UK maintained a political appearance of compliance through blanket denial and loose interpretation. The discourse surrounding political necessity to answer to hideous crimes of terrorism has become the equally as hideous necessity to commit torture, to the point even well-established lawyers felt comfortable detailing a proposal for torture under judicial warrant. Article 2 (2) is very clear: there is no exemption to the absolute prohibition.

UK Home Secretary Theresa May has several times invoked the fact that ISIS posed an unprecedented threat to the security of the United Kingdom and the safety of its citizens and residents. This implies that, despite the threat of violence being more significant than the actual acts of violence themselves on UK territory, ISIS would pose a bigger and more politically consequential threat than the IRA ever did during the Long War. Not only would this place the Terror Orders and the Prevention of Terrorism Acts in a context, not just of constant legal derogations in the name of counter terrorism, but also of political legitimacy in order to respond in proportional terms to IRA actions; it would also make the ISIS threat bigger, therefore the response stronger, more powerful, intrusive, and less likely to be limited and space and time, or subjected to parliamentary or judicial review. The fear that ISIS provokes in western country is so intense that it is reviving what Europe thought it had buried several decades ago.

The report of the Gibson Inquiry identified 30 (!) issues it would have wished to investigate, ranging from unease at raising the issue of torture with the “partner” (the US) to knowledge of the RDI programme from the executive. All 30 issues are paramount to determining criminal responsibility under domestic and international law. All 30 issues remain relevant to this day, as President Obama seeks – and fails – to close Guantanamo, and the UK seeks – and fails – to hold itself compliant with international humanitarian and human rights law while still creating areas of exemption. Through revisiting the Gibson Inquiry report and use it as a basis to re-launch the detainee inquiry, the UK could find itself in the unprecedented position to establish its own domestic system of accountability, truth-seeking, and transparency in the conduct of the war on terror – in line with the abuses it committed in the past and has yet to condemn at judicial level. With Shaker Aamer free, and 6 UK applicants seeking redress and truth in their own rendition to Guantanamo, there is a political responsibility not to let that time window close – and a legal duty to uphold.

Read the full Detainee Inquiry December 2013 report here

Read the Interim Report of the European Parliament inquiry on CIA rendition here

Read the Marty Report on EU member states and CIA rendition, 2006

Read the Fava Report on EU member states and CIA rendition, 2007

Read the executive summary of the SSCI report on the CIA rendition program, 2014

 

The collective consciousness and the lingering spectre of torture

Col. Larry James, chief psychologist at Guantanamo, 2003; director of the Behavioral Science Unit at Abu Ghraib, 2004. Retrieved at Newsweek, August 2015

More than the release of the Senate’s “torture report”, one of the defining moments of the American public’s reaction to the CIA’s rendition, detention and interrogation (RDI) program was the moment the New York Times decided to stop using the euphemism of “enhanced interrogation techniques” to describe what was and is blatantly torture. Executive editor Dean Baquet wrote in August 2014,

The word “torture” had a specialized legal meaning as well as a plain-English one. While the methods set off a national debate, the Justice Department insisted that the techniques did not rise to the legal definition of “torture.” The Times described what we knew of the program but avoided a label that was still in dispute, instead using terms like harsh or brutal interrogation methods. (…) Over time, the landscape has shifted. Far more is now understood, such as that the C.I.A. inflicted the suffocation technique called waterboarding 183 times on a single detainee (…) Given those changes, reporters urged that The Times recalibrate its language. I agreed. So from now on, The Times will use the word “torture” to describe incidents in which we know for sure that interrogators inflicted pain on a prisoner in an effort to get information.

I was reminded of this while reading a piece called “Lives by omission” in the latest issue of Harper’s. J.M. Coetzee published exchanges with psychotherapist Arabella Kurtz on the parallels between fiction and psychotherapy. In this particular excerpt, they examine the process of repression, that Freud explained distinguished human beings from beasts. Coetzee writes, “What we gain in repressing what we do not want to remember we have to pay for with the subterranean poisoning of other aspects of our lives.” Later, he provides a torture analogy:

But is it true that repression necessarily fails? To give an extreme example, certain people who have committed vile acts – torture, murder – seem able to construct life stories (memories) for themselves out of selected fragments of the real (the long hours they had to work, the gratitude of their superiors, the promotions and medals  they received) and to live with and by such memories, while repressing all the ugliness. Classical theory, at least in its popular version, says that such people have unhappy relations with their wives and children. It says they suffer from nightmares. It says that they are secretly haunted by the cries of their victims – by what they try and fail to repress of their “real” past. And indeed, if you put a torturer on trial or if you compel him to undergo a course of psychic rehabilitation, he may begin to recollect those “repressed” cries.

If we see the construction of a personal narrative when committing “vile acts” – and there is no doubt that the operatives, government agents or contractors, that have taken part in the RDI program have committed vile acts – as a success of the psychological process of repression, it is difficult then to legally extract an individual responsibility for said crimes. Or is it? Yes, the gratitude of the superiors, the constant political rhetoric around the efficiency of torture, supposedly scientifically supported and pushed by legal celebrities such as torture-by-warrant proponent Alan Dershowitz – provide comfort, containment, and eventually, a levee against the perhaps inevitable wound inside the human psyche that remains after the crime, a wound that extends to the whole of humanity, as Dostoevsky expressed so well.

When Col. Larry James, former chief psychologist at Guantanamo, responded – reacted – to the APA motion banning its members from colluding with the CIA and the Pentagon on interrogation techniques, he did so by claiming the motion, the legal opinion of which I have written, holds “negative consequences”. In the APA debate taking hold before the vote, James asked:

So I need to know: Does international law supersede U.S. law? Because if the answer to that is yes, this has dire negative consequences for all federal employees, particularly in the VA and the department of homeland defense.

APA president-elect Susan McDaniel said the vote was to “reset our moral compass”. And yet, there is a continued willingness to push a narrative of efficiency and most importantly necessity from which a portion of the US public had started to distance themselves. Even the paper of record had a moment of reckoning with the ubiquitous use of comfortable and convenient paraphrases – enhanced interrogation techniques – realizing their responsibility in the dissonance between public political discourse lied in telling the truth as it stood and stands, not furthering the lie. There is no way of knowing whether Col. James, as a public persona, aligns with Larry James, the private individual, on the issue of torture. Another aspect of the APA motion was that it stopped providing the CIA and the Pentagon with their medical crutch, a huge part of their justification for their actions; it also confronted APA members with themselves, their actions, and their beliefs, depending on how well rooted they were. As sole dissenter, Larry James isolated himself in a landmark decision that will affect future operations of US intelligence agencies and their collaborators. He placed himself on a different shelf, aligned himself with the US’ interpretation of the Convention Against Torture that was laid out by John Yoo. He worried about criminal responsibility if the APA took a position on the absolute prohibition that aligned with international law, not with the American political context of the war on terror.

Human rights law is not rhetorical. It was not written as such and is a difficult area of practice. It is often mentioned that legal positivism is a question of morality, conscience and interpretation – all of which being subjective – but it was meant to translate into effective and immediate remedies for those affected by the violations of these peremptory norms. The prohibition of torture, although it is an intersectional and interdisciplinary issue to approach, is no different. It is part of this body of law that holds within it the fundamental principles of humanism and a loaded collective memory. Speaking of the prohibition of torture as the absolute that it is has been derided to great extent since 9/11, as being unpractical and inapplicable on the ground. The role of the APA in supporting torture was to create a sound argument for exemption, a legally acceptable derogation, hitting back at IHRL for existing outside of a reality of constant violence, fear, and imminent threats. The world had changed, we were told; it took a turn for the worst; we would not be much of a society if we did not do whatever it takes into protect each other from those external and shapeless monsters that are jeopardizing all this stability we have created. Torture is a collateral crime; it is the result of our back against the wall; it is an answer of last resort that no one wishes to brag about, but still needs to use when – we are told – all other methods failed.

Few images of British national and Guantanamo detainee Shaker Aamer exist. He insisted that this one, depicting him smiling, was the one use in coverage of his case. Aamer, who should be released by the end October, is still on hunger strike.

But the prohibition of torture is an absolute; human rights law resists against political derogations; and the truth lies outside the scope of Col. James’ arguments. We have had an opportunity to look at this torture-we-dared-not-speak-of in 2006 and 2007 through European Parliament rapporteurs Dick Marty and Claudio Fava. Their work failed to challenge overseas. Europeans, their commitment to the rule of law and their stubborn refusal to accept a war paradigm for counter terrorism will have to wait until Bin Laden is killed. It did not matter. Those reports were academic, had gaping holes where ministers were supposed to testify, untimely, and pitted natural allies against one another on questions of principle.

Feinstein’s report shifted the attention away from the purported accomplishments of special forces overseas to what they were doing in “black sites”, in Bagram, in Guantanamo, and everywhere else. It showed the general public, weary of battles of words, a side to their endless but righteous war they were not ready to face. The backlash has yet to be immense. President Obama admitted the US “tortured some folks”, and there are still no charges, no indictment. There had been a suspension of the repression, a brief moment of lucidity, during which the horror was contemplated. In those moments, there are no nuances. There are no spectrums of opinion; there is no gradual assessment. We are horrified, or we are not. It is a choice. It is fundamental to frame it as a choice, because for the first time, the general public – not lawyers, not activists, not officials-speaking-on-condition-of-anonymity – were in the know. There was an incomplete, yes, but sufficient glance at the truth. We can stare at it, as the APA did, 6 years after the first draft of the motion was submitted, and act on it, fight, struggle, and scratch beneath the surface; or we can turn away. We can pretend those practices were small moments between brackets of our collective history; a bygone footnote of a much bigger context.

The “Hooded Men”, with their legal team and Fr. Murray. Retrieved at the IrishPost, October 2015.

But if it needs repression to be worked out, it is much more important than a footnote. Repression is a tool that shapes one’s identity. The piece I quoted before imagines what a torturer on trial would face, a sort of crash course in psychoanalysis: “… If memory is malleable in one direction, obliterating what disturbs the subject, it is surely malleable in the opposite direction too.” And if the rule of action and reaction also applies to the human psyche – for a stone to roll on a plane surface, it needs a force to project its weight forward – that crucial moment in our collective memory has yet to happen. The catharsis we expected from the passing of the APA motion did not take place. The administration did not take note. The UN committee against torture continues to plead for acknowledgement, truth, accountability, reparations. Those are not symbolic; truth and accountability can begin a process of healing, and of returning to the roots of the absolute prohibition. There is still much we need to know. We need access to the medical files of Guantanamo detainees; we need the stories of those detained at Bagram; we need the memoranda of understanding between the CIA and collaborating countries to understand how the US persuaded member states to take part in the program, from simple material support – Ireland lending the Shannon airport airfield for refuel – to construction and maintenance of sites in Poland, Lithuania, Romania and many other places. Ben Emmerson called the rendition private a vast international conspiracy. How the Obama administration expects us to forgive and forget is just as unclear. Or maybe the expectations are so low in what our collective threshold of tolerance is, that it becomes acceptable to whitewash a crime of this magnitude.

As the countdown has started on the 30 days during which Congress can oppose the release of long time detainee and British national Shaker Aamer, the question of the motive for his prolonged incarceration – he was cleared for release twice, in 2007 and 2008 – rises again. It is unclear how much we will know about his medical history between his capture and his release, whether medical professionals in London will have access to to treat him, if he will be able or willing to speak. Andy Worthington, a journalist who has spearheaded the campaign for his release, has often pondered whether Aamer was the detainee who knew or saw too much. What this effectively means, we are still not sure. Aamer’s lawyer, Clive Stafford Smith, warned us in an op-ed that a campaign of misinformation seeking to justify the treatment inflicted upon a man never charged with a crime and sold to US authorities by local warlords in Afghanistan would begin. We have a duty not to repress what we know of Shaker Aamer’s torture. We have a duty to resist and endure a debate that should last, no matter how nauseating the details and painful the recollections, until we have full accountability.

When the authors of the APA motion first contacted me, they mentioned my background: I grew up in Belfast, Northern Ireland, under British counter terrorism policies that included the use of torture. It has been part of our small, local, contained history – or so we thought: the evolution of psychological torture, from Kubark to Belfast to Bagram, is now established as linear. On November 30, the judicial review for the case known as the “Hooded Men” will open in the city, and the battle for public versus withheld information will continue to rage. There is a responsibility that lies with those of us who have seen the future of a policy of impunity not to see it reemerge elsewhere.

And this responsibility isn’t rhetorical either.

“We need the powers and the resources to expose the truth”

David Anderson QC (left), independent terrorism legislation reviewer. Ben Emmerson QC (right), UN Special Rapporteur on human rights while countering terrorism

On Wednesday, March 26, the Joint Committee on Human Rights (JCHR) convened on Westminster with the heaviest agenda of the parliamentary year so far – scrutiny of human rights compliance with counter-terrorism laws, protocols and their application. Following just  a week after another committee (Home Affairs) took great paints to summon Sir Mark Waller over GCHQ activities – and concluded that the little if any scrutiny granted to intelligence activity and data collection was far below a democratic threshold – the JCHR intended to make an inventory of the most pressing issues facing the human rights community in regards to counter-terrorism laws in the UK, enforced domestically and abroad. Present where David Anderson QC, an amicable, straight-forward and honest reviewer aware of his possibilities and difficulties as independent reviewer of terrorism legislation; and the both ubiquitous and far too rare Ben Emmerson QC, Special Rapporteur on Human Rights while Countering Terrorism.

As the UK slowly emerges from the deep slumber induced by the shock of the Snowden revelations, and intends to bring forward a semblance of a healthy democratic debate surrounding the overwhelming powers granted under its anti-terrorism legislation – from Parliament-embraced measures to unchecked use of executive power – this hearing was more formal that the Home Affairs’ submission to Sir Mark sought to be. Anderson and Emmerson, both tasked with a position that requires more than annual reports and evidence submission, highlighted not only the domestic inconsistencies of counter-terrorism legislation both in regards to constitutional safeguards but European legal compliance, but the international implications of the UK armed forces abroad – and even more to the point, the UK collusion with the US drone war.

Both Anderson and Emmerson were asked, as a preamble, to identify three key issues arising from abuses of counter-terrorism legislation – and both agreed on all three, their pressing need to be addressed, and the importance of a legislative scrutiny. Not respecting their own order, this write-up of the hearing seeks to re-affirm the basic principles of human rights compliance in counter-terrorism activities. Despite the current climate and the domestic policies seemingly asserting that the two are mutually exclusive, that conditions of necessity and proportionality involve derogations, and that national security imperatives supersede all – Anderson and Emmerson were both unequivocal in the belief that unless regular scrutiny, legislative and judicial review, and transparency prevail in a democratic country seeking to combat the extremely real of terrorism, abuses would be just as well shared by the nation-state violating the principles it had originally vowed to uphold.

Definition of terrorism

The question arose in the context of the Miranda v Home Secretary ruling in February, in which it had been effectively denounced and illustrated that section 40 (1) (b) of the ATCSA was too broad, too vague and unchecked to be efficient and free of possible discretionary, discriminatory abuses. As Emmerson remarked, the UK’s situation in defining terrorism – or failing to appropriately do so – is hardly unique. Many states, most of them being western democracies grappling with more or less open conflict in MENA or South East Asia, have definitions of what constitutes terrorism that are adaptable, subjected to interpretation, often not legislative. Anderson noted that he intended to revisit the definition incorporated into the ATCSA, if only in the light of the Miranda verdict – although the High Court ruling only emphasized that this became necessary, as opposed to shedding a light on an issue no one addressed. Continuing, “in the old days, terrorism was simple”, referring to the usual and perhaps now obsolete decision that terrorism was an act of violence perpetrated in order to achieve a certain political aim. The definition of ethnopolitical terrorism, a type of conflict Northern Ireland declared for decades, may no longer fit such a clear-cut bill: what has become a political means to achieve? Is the goal of the political action the strict act of self-determination, or can wanton destruction (of both property and persons) be considered terrorism? Should it be foreign or domestic? Should be carried by an organisation or an isolated individual? In the attempt to cover all bases, 40 (1) (b) covered, in fact, all bases, even those that perhaps should never be criminalized to the full extent of the overreaching powers of couter-terrorism legislation.

Ben Emmerson

Maybe more to the point – and this was said as an aside, despite its importance – a broad definition of terrorism could apply to state actors as well as it could to organisations and individuals. Emmerson:

This definition (…) criminalises conduct too broadly. The purported safeguards against abuses can’t be used against executive orders, that remain unchallenged. If you apply this definition, it could apply to British armed forces overseas.

Although it remains quite unsure as to how many eyebrows were effectively raised following this statement, Emmerson continued on the difficulties of applying a terrorism charge ex post facto. “This is not consistent with our constitutional principles”, he concluded, which will later be raised once more in the evolution of the legal context of counter-terrorism.

What was at the core of the Miranda case, indeed, was the extension of counter terrorism legislation to journalism – and the fact that carrying material that could be deemed harmful to national security; knowing, carrying, transporting, or transferring information deemed harmful; and publishing said information is now subjected to a terrorism charge. If journalists have now become a preferred target for outlandish counter terrorism laws that are only a front for clearly criminalizing dissent, the goal of extending these powers – which include prolonged detention, seizure of property, prolonged interrogation often as a result of long standing surveillance – to journalists, protected by the ECHR, the ICCPR and domestic mechanisms of press freedom, has a dangerous aspect that has forced one member of the JCHR to ask both barristers if journalism, and being a journalist, should be defined in order to create a framework that would escape the claws of counter-terrorism legislation. But being a journalist is not simply a profession on a card, not simply a career; it is the act of researching information and publishing it. In the digital era, an individual that may not necessarily be a career journalist, would not necessarily identify as such, or would not be hired full time and under contract by a newspaper organisation, can indeed act as a journalist and publish as such. Those individuals also deserve the protection of Article 10, and hold the right to a public interest defense.

Emmerson did not mention the Johannesburg Principles; instead, he referred to a more recent convention – principles laid out that goes through both domestic and comparative law in order to provide the best media protection possible, as well as enriching the legal mechanisms and recourses for whistleblowers… including those engaging in unauthorized disclosures. It is of Emmerson’s “robust view”, as he puts it – which may be robust in a vacuum, but necessary in the context – to foster and favour an environment in which the media plays a role of governing accountability and providing a healthy debate in the name of public interest. If the question of transparency has popped in a few times during the short hearing, it has however made a lasting impact – Westminster has now effectively held two parliamentary hearings during which observers, national, domestic workers in different fields, have assessed the Snowden disclosures not only as being in the public interest of the United Kingdom, but also having a much broader, international scope – which forces the national government in this situation, not only to address its own population in regards to the domestic spying apparatus in place, but to answer to the duties and responsibilities each nation has toward the others with which it engages.

Glenn Greenwald after finding out about Scotland Yard’s “Ports Circulation Sheet” related to the arrest and detention of his partner, David Miranda.

(If the Snowden revelations damaged more than two governments’ abilities to be trusted by their own population, we may not know in the immediate; US journalist Jason Leopold, who has filed a Freedom of Information Act (FOIA) request for a DIA document supposedly reporting on the “grave damage” the Guardian publication would have caused has been met with an “exceptional circumstances” excuse, seeking additional time to process his request. Considering the discourse on the so-called lethal effects of the NSA disclosures at home and abroad, one would be under the belief that the DIA would want this report out there, for everyone to stop considering Snowden a hero. Alas, this is not the case; and the notion of public interest in the face of grave human rights violations remain.)

Anderson, who has had first hand experience in observing press freedom and its restrictions elsewhere while on a mission for the Council of Europe (CoE), has reported that instances of restrictive definitions of what constitutes journalism and who can be considered a journalist, with the legal protections attributed to the title, more than often led to press freedom violations. He referred to the Levison case, another ominous jurisprudence for the United Kingdom. Although Anderson’s point was brief, if his intent was to suggest press freedom ought not to be restricted on matters of principle to avoid civil liberties violations (as opposed to restricting them for opaque national security matters), it was very well conveyed. The concerns raised by the JCHR was not in the strict and immediate future of the Miranda ruling, which is still under ongoing litigation, but just as dangerous and pervasive chilling effect it has on freedom of expression, opinion, and access to information. Emmerson, who never sought to wax poetic and engage in rhetorical battles of sorts on political linguistics, stated that national security was in fact used as an excuse to intimidate and silence the press. This goes hand in hand with recent declarations by UN Rapporteur Frank La Rue on the chilling effects of prosecution of whistleblowers. Anderson, who explained that national security was “notoriously undefined”, took issue with unquestionable, unchallenged and unscrutinized executive orders – as well as the Royal Prerogative – which, as a terrorism reviewer, leaves those unilateral decisions outside of his purview. It became clear at this point of the hearing that a legislative review of counter-terrorism, powers granted by Parliament and possibility to curtail, democratically, exceptional powers granted to the executive, could be what the UK – and by extension, the US – need.

CIA rendition program

A long-lasting thorn in Ben Emmerson’s side, the release of the Gibson Inquiry echoes the current theater drama on the other side of the Atlantic, as Sen. Feinstein struggles with the CIA, her own demons, and getting the votes to hypothetically release the CIA torture report. The Gibson Inquiry, named after Sir Peter Gibson, tasked to investigate the role of British intelligence forces into the CIA torture program, has notoriously been stalling for years. Then transferred to the Intelligence Services Committee (ISC), David Cameron, as a campaign promise, sought to take it away from Lord Gibson and handing it out to the ISC. He famously said, in 2010:

I do not think for a moment that we should believe that the ISC should be doing this piece of work. For public confidence, and for independence from parliament, party and government, it is right to have a judge-led inquiry. That is what we need to get to the bottom of the case. The fact that it is led by a judge will help ensure that we get it done properly.

A statement made on December 19, 2013 and released to David Cameron said the report concluded that matters needed “further investigation”. However, the ISC has been heavily criticized for failing to conduct proper oversight into the activities of intelligence services; in this case, the only released information concerned the MI-6 collusion with Gaddafi, which resulted in the rendition and torture of two Libyan opposition leaders in 2004. Handing the Gibson inquiry to a committee that lacks powers and resources to conduct a truly independent and thorough inquiry has been perceived by members of human rights groups as a willingness to whitewash the activities of the MI-5 and MI-6. As the ISC reviewer himself, Sir Mark, proved at his own hearing last week, the reviewer has little to no power over GCHQ; is massively understaffed; does not possess the power to compel evidence or summon witnesses; any evidence provided will be heavily redacted if ever possibly released at all. Emmerson, who expressed his frustration over the procedural limitations of the inquiry over and over again, re-affirmed the need to absolutely lift any roadblocks standing before the ISC “so the Committee can do its job”:

Individuals concerned by the inquiry boycotted it – but those who committed crimes need to be exposed. The Committee needs to have the powers and resources to expose the truth.

When asked if the ISC would ever face a conflict of interest in the conduct of a review that is neither legislative nor judicial, Emmerson expressed a commitment to oversight that is refreshing in an era of hyper-classification and constant executive-led belittling of calls for transparency. The Rapporteur then made a statement that sounds like stating the obvious, a truth that many democratic regimes may have held as self-evident, that is, until someone blows the whistle on works behind the scenes: that oversight is a traditional mechanism in advanced democracies. It is the one tool of accountability that can be relied upon especially when exercised by the very representatives of the people (legislative) and/or by an absolute separate branch of government (judicial). Only a lack of oversight, or a demonstration of powerless or virtually pointless oversight can reveal that separation of powers or excessive executive control has undermined the constitutional principles of society. As to whether any inquiry, inquiry report or conclusions should lead to prosecution, Emmerson believes that a strong judicial component to an inquiry could be an asset to conducting an investigation into intelligence services – as the judicial hand might be seen as stronger and less subjected to influence.

In light of Sir Mark’s testimony – which, again, he performed extremely reluctantly – the issue of transparency not only in intelligence itself, but in the conduct of oversight was raised. Although both Emmerson and Anderson mentioned the concept of “responsible journalism” earlier in the hearing, the necessity for information and the right to truth was once again made in front of a legislative body (emphasis mine):

It is always difficult to decide [ on release ] when dealing with sensitive information, to decide if privacy is justified. But what the committee is tasked with, parts are capable of being held in public. All that can be safely in the public domain should be in the public domain.

Unmanned aircrafts, targeted killings and undeclared battlefields

It was surprising to hear members of the JCHR being surprised that the use of drones made Anderson and Emmerson’s top three counter-terrorism issues list. Following an extremely brutal yet absolutely necessary report three weeks ago, which seemingly went half unnoticed even in the list of proposals it laid out in its conclusion, Emmerson provided the committee with what Anderson later referred to as a “masterclass on drones”. No stranger to their use in undeclared battlefields and the massive human rights violations they committed – pre emptive killings, unsanctioned use of military force, civilian killings and the absolute classification over their intelligence collection methods, their trajectory, and little known about their operating bases, it was no wonder that Emmerson’s tenure at the UN would prominently feature his lengthy field research in Pakistan and Yemen in order to amass the information that no one else would release to him, despite his position, that one would assume significant enough to warrant cooperation.

Alas.

Know Your Drone

Emmerson identified four key concerns, which he outlined in concise but harsh terms:

1) this is a 21st century weapon designed for asymmetrical armed conflict. As a counter-insurgency tool, which is what it is branded to be, it is of very little use and effect.

2) the Committee was right in saying that with the technology at our disposal, and the capacity to place suspects under 24/7 surveillance, it is in fact possible to protect the right to life closer to a zero-collateral damage than ever before – tools of precise targets, even more surgical strikes, and threat removal. Instead, the use of drones have illustrated reckless endangerment, and have destroyed said right to life.

3) Most of the difficulty that arises from the counter-terrorism and human rights study of the use of drones is that they often operate outside of the theaters of traditional armed conflict. Their constant hovering over Yemen, Pakistan and Somalia, nations with no declared war against the US or the UK, force precedence in areas of international law where there is nothing even remotely close to a political or legal consensus.

4) Drones are operated by the CIA.

Presenting this quote without further comment:

I don’t know who originally thought it was a smart idea to hand drones in a campaign of waging war through the air to an organisation bound by the rules of neither-confirm-nor-deny. (…) I’d rather give MI-6 a fleet of aircrafts and let them go off and do whatever they needed to do.

The complete lack of transparency even in answering simple questions from journalists and lawyers is what makes the CIA such an unpractical and dangerous organisation to direct and lead unmanned aircrafts – remotely based pilots distanced and detached from the battlefield, the realities of the insurgency and the bloodshed of the bombs they let off. The historical culture of classification and secrecy held by the CIA, the topic of which is often source of heavy-handed satire and conspiracy theories is an issue in and of itself. Abuses do arise, but in the hands of the CIA, they are effectively removed from any tool of accountability for the civilians affected by their practices; the wounded as well as the killed. The effort to transfer the direction of drones from the CIA to the Department of Justice (DoJ) was a step in the right direction, but hindered. Emmerson however noticed that since John Brennan took over as head of the CIA, Pakistan enjoyed a period of relief from the death machines. (Sadly, this has not proven true for Yemen).

Picking apart Emmerson’s new report draws the eye on his rhetorical questioning on a proposed change of international law (!) and accountability systems of counter-terrorism (!!) to fit the current and evolving framework of the counter-terrorism and counter-insurgency methods the US and UK are practising in the name of their endless War on Terror. Reducing it to the simplest possible question due to the nature of the hearing and its limited duration, Emmerson was asked to answer whether war should be redefined. This, however, was not rhetorical. Stating that this is a complex issue – and I would argue, the most complex international criminal issue of our time, one I have been working on for ages – there is no consensus among states, or even among lawyers. The Geneva Conventions are and should remain the guiding principles of the law of warfare; but the nature of conflicts themselves have evolved far away from our traditional and historical definition of what constitutes an international armed conflict. Most of the battle zones, these days, are asymmetrical battlefields – meaning, in broad and simple terms, a nation-state against a more or less borderless organisation. Henceforth, the targeted laws of international humanitarian concepts are harder and harder to apply. Jurisdiction is an ongoing concern in matters of judicial accountability. Classification is the biggest fear in matters of political accountability. If counter-insurgency and counter-terrorism are often confused in media coverage, it is because the definition of what constitutes a legitimate military target not only varies according to the country in which the fight is taking place, but also the rules of engagement (for armed forces); the duty handbook (for private military contractors), and legislation once one policy expires or there is a change in administration. The questions Ben Emmerson asked at the end of the report, which asked states involved in the War on Terror to not only answer his calls for transparency and release of information, will be subjected to a vote at the United Nations shortly, recommending the establishment of a committee that would hear states and their own national, domestic and political vision of counter-terrorism, human rights compliance, and the legal systems of accountability they would recognize.

As I said, Emmerson’s report was a brutal read; and if some states decided to play the game and submit themselves to Emmerson’s questioning – the future will tell the degree of truthfulness involved – the Rapporteur was quick to point out that the UK was “not terribly keen” to submit themselves to the Human Rights Council. In itself, it is immensely telling.

Home Secretary Theresa May

Citizenship deprivation, executive powers

When mentioning the awfully limited and comically useless powers of Sir Mark Waller, it was unbelievable to conceive that David Anderson would face oversight issues. Indeed, his body of work as a reviewer is comprehensive, transparent, available and accessible. However, in the recent decisions made by the Secretary of State and Home Secretary, regarding immigration, deportation and revoking powers, Anderson admitted he had no review powers – those fell under immigration ministry oversight. However, one concern was a power that had been long lost and was somehow revived in the last twelve months: revoking a passport. Since April 2013, 14 passports have been revoked under powers granted by the Royal Prerogative, another unilateral executive power not subjected to review. (We remember activist Moazzam Begg’s passport being confiscated upon return from a humanitarian trip to Syria, not long before being arrested and detained by the anti-terrorism unit of Birmingham Police).

But again, the bigger picture remains the same: it is an issue of transparency and accountability. Theresa May’s citizenship deprivation scheme, detailed here at length by journalist Aviva Stahl, have obscured motives yet terrifyingly clear results. Left vulnerable, without diplomatic assurance and the protection of the right of abode, statelessness effectively makes individuals vulnerable to gross human rights violations – historical instances in the previous centuries having led to the 1954 Convention on the status of stateless persons. Although the power of revoking citizenship is a prerogative of any member state, the necessity to ensure that the individual is not only entitled to powers of appeal of the decision but also has another citizenship or state willing to grant asylum once the decision made should be a duty incumbent to any state party to that treaty. Emmerson, falling into the footsteps of a House of Lords hearing last week during which the scheme was debated, in the light of two individuals murdered by a drone strike directly following the revoking of their citizenship, reaffirmed that international law had to prevail in a climate of perpetual and ubiquitous conflict during which individuals are not to be left without possibility of refuge. However, the follow-up question was met with concerns for the security of the United Kingdom, not an appreciation of the human rights of individuals, regardless of their alleged or confirmed criminal status. Emmerson, again:

Those singled out for a crime that is wholly public – on notice from the government and the services that watch them – are those posing the least threat. This is a radical power, and it makes one wonder what someone did to deserve such a measure.

Anderson, who has consistently and abundantly worked on TPIMs, was happy to report there were none enforced currently; there should be an emphasis on prosecution in matters of criminal wrongdoing, as opposed to executive orders in matters of security. Are the TPIMs really that efficient in terms of counter-terrorism prevention? Are executive powers a deterrent to criminal activity? What can be a deterrent? Wouldn’t the appropriate behavior to work on the roots of terrorism – explained and detailed in the UN 2006 global counter-terrorism strategy – as opposed to immediately and profusely rely on executive powers, unchallenged and unchecked, to provide national security?

Crux of the matter remained that scrutiny of executive powers and executive services – intelligence and use of military force in matters of counter-terrorism – require that the other branches of government obtain at least equal power to the executive as opposed to being subjected to disclosure exemptions, classification refusals, and clearance denials when accessing material, evidence, and individual that would facilitate the conduct of their work. Anderson suggested that members of Parliament engaged in legislative review should be granted security clearance to access GCHQ / MI-6 material – or at least, be treated as if they did. “It is the only way we can debate information in a meaningful way”, he said, in yet another significant effort by a terrorism specialist to emphasize the necessity for clarity and transparency in the healthy course of democracy. Emmerson concluded that oversight was not working as it well as it should be, but thankfully, we could rely on a momentum, at international level, to create direct obligations upon member-states to abide by human rights provisions in the course of intelligence gatherings and counter-terrorism.

And we hope it doesn’t stop.

 

Judicial activism and the right to truth: al-Hawsawi and Lithuania

Mustafa al-Hawsawi, 2012

Last month, an extremely important case hearing took place in Strasbourg, at the European Court of Human Rights (ECtHR). It detailed the collusion of the government of Poland with the CIA in creating a secret prison on its territory, in which prisoners were detained, interrogated, tortured, then shipped to the United States on unchartered flights before being detained again at the horrific naval base of Guantanamo Bay. The worst illustration of a lethal EU-US partnership in the so-called War on Terror was finally exposed, after much obstacles were removed. Lack of transparency, hyperclassification, judicial deference, protection of “vital foreign interests”, and the usual disdain for the basic fundamental rights of terror suspects have led to a considerable delay in trying the Guantanamo Bay inmates, but also to broadcast in a court of law the crimes committed by the nation states and their agents. In the fight against terrorism, counter-terrorism is also on trial.

The establishment of CIA black sites on European soil has been a profound source of shame, a delicate diplomatic issue. Yet a comprehensive document dating back to 2006, the Marty Report, commissioned by the European Parliament to investigate and assess the extent of member-states collaborating with the CIA , brought to light how massive the scale of cooperation has been. If the case of Poland has become a textbook situation for collusion –  from paying airport employees in cash to hide departing flights to the US, to refusing access to classified documentation to defence lawyers – it is important to keep in mind it is not an isolated situation. This week, Lithuania has managed to score a victory in its judicial battle within its own domestic courts, without the help of Strasbourg, in a case that highlights two fundamental difficulties and hurdles in the prosecution of the CIA torture program: not only had the Lithuanian prosecutor refused, twice,  to open an investigation into the prison located in the small village of Antaviliai, but all the information used to re-open the case was not governmental documentation at all – it was journalistic investigation made public that had allowed to provide new information.

Mustafa Al-Hawsawi is a Saudi national, currently detained in Guantanamo Bay as a high value detainee and faces trial by a military commission for his role as a financial backer of the 9/11 attack. He was captured in 2003 in Rawalpindi, Pakistan. According to him, he was then transferred to Lithuania where he was handed to US authorities, subjected to torture and disappeared – he would have remained in the secret prison for two whole years, between 2004 and 2006. It’s only then, in September 2006, that US officials formally acknowledged his detention at Guantanamo Bay. As a high-value detainee, Al-Hawsawi was at a much higher risk of torture than any other inmate, according to a report by the ICRC; later, Ben Emmerson, the UN Special Rapporteur on human rights while countering terrorism – who filed as a third party in the Abu Zubaydah v Poland case – reported, in 2013, that the situation of CIA black sites and the practice of extraordinary rendition for terror suspects involved 54 nation states total, from Lithuania to Morocco and from Poland to Thailand.

The forest on the road from Vilnius to Antaviliai, Lithuania

Thanks to investigative journalist Jason Leopold, we know much more about the arrest, disappearance, detention and torture of Abu Zubaydah than we could have ever hope to find if we had followed the often blocked, often stonewalled round of a traditional legal investigation. In the case of Al-Hawsawi, the road was paved with ill-intentions, over a five-year period: in 2009, an initial investigation into the case was made thanks to a report by ABC news, yet charges were dropped seemingly due to lack of evidence. Back then, Defense Minister Rasa Junkeviciene had released this statement:

“Prosecutors need facts. This is how I understand their decision. One shouldn’t forget that this is not only a Lithuanian issue, and if other states fail to give necessary information, or people who know something also don’t want to give information, then in fact it’s pretty hard to say something.”

Although this sounds logical and a fair assessment of how charges could be dropped in a case of serious violations of international law, this highlights the difficulty to access information when so much redaction, red tape or complete classification of material can not be accessible through the classic and regular means of transfer of information in a transnational case. It was obvious that due to the lack of compliance displayed by the United States at the time, further investigation into the lost two years of Al-Hawsawi’s life would lead to empty boxes, unaccessible documentation, or even possibly a request not to look further into this case. However, thanks to the ABC News report, the Lithuanian Parliament created a committee tasked with investigating the alleged CIA black site. And they found one. In fact, they found two. But those were empty, and there was absolutely no written trace, documentation, or evidence made available to them that any prisoners under any authority had been brought to those sites.

Former president Valdus Adamkus and former prime minister Algirdas Brazauskas, the executive authority in place at the time, denied any allegations. The investigation, which came to a screeching halt in 2011, had however unearthed some pretty disturbing evidence, that, linked to other similar cases of detention and torture at CIA black sites, could determine a pretty serious pattern of corrupting local officials, building sites in remote rural areas, and circumventing airport rules for flights to depart and land unsuspected. According to the Prime Minister, who took part in the committee:

The committee also said that five airplanes “linked to the CIA” landed in Vilnius and Palanga airports from 2002-2005, and on at least two occasions border procedures were bypassed with the help of high-ranking Lithuanian State Security officials.

As I wrote in December following the Abu Zubaydah hearing, which I attended, the facts of the case soberly enunciated by the lead counsel, Ms. Singh, illustrated one thing – that it would have been impossible for the CIA to have operated in Poland without national officials knowing about the site. In fact, as it was said then – “not only should Poland know, but Poland did know.” Ms. Singh recounts the different steps taken into the detention and rendition of Abu Zubaydah:

Singh insisted that Poland was not only guilty of facilitating the detention of Al-Nashiri, but also to actively cover-up US rendition flights, and not act under the law when they knowingly assisted the torture of the applicants. Payment of fees to CIA officials, extra bonuses in cash granted to Polish officials and airport workers who assisted in the cover up and departure of rendition flights  have all been documented by what the counsel asserted were credible sources, while Poland carried out claiming that bias from witnesses and anonymity of testimonies made them, apparently, unreceivable. Singh added, in a moment that sent a chill down the audience’s spine, that there had even been agreements between Polish and US officials as to the procedure to adopt should a prisoner die during the detention.

al-Hawsawi at his arraignment in 2008. (c) Janet Hamlin

If Poland appeared to have maintained a political facade since the case was first brought to its attention in 2008, things were not sailing smooth with Lithuania: the Foreign Minister resigned in 2010 over the black site investigation. Back then, President Grybauskaite had publicly acknowledged she knew about the presence of CIA black sites in the country, but following the Parliament report lacking information regarding prisoners, their identity, and travel dates to the prison, Usackas, then Foreign Minister, strongly dismissed all allegations that any torture site, CIA-operated or otherwise, had detained prisoners. Grybauskaite said she had lost trust in the members of her government at the time, and asked her Prime Minister to dismiss Usackas. Usackas, in turn, resigned from his position.

In 2011, Amnesty International obtained information that was relevant to the case and urged Lithuania to re-open an investigation into the secret prison. The claim made during the Abu Zubaydah hearing that an investigation into collaboration with the CIA was “politically inconvenient” echoes the case of Lithuania. It appears that the Parliament report should have consisted in enough evidence to either admit or dismiss the case in court. Since the report could neither assess the presence of prisoners nor the knowledge of executive officials at the time, counsel for Al-Hawsawi relied on investigative missions and victims’ testimonies to provide new information to the Court. The admissibility of this evidence was contested by the Prosecutor. In Poland, lawyers for the government alleged that media publicity and “interference” (sic) with the investigation had made it difficult to carry on in what they believe would be a consistent and objective manner; that NGOs were pressing an agenda on Poland to prosecute human rights violations they weren’t sure existed. The issue of transparency and the obtention of material outside the realm of the legislative inquiry or the executive’s agreement to disclosure is yet another pattern in the prosecution of CIA crimes. Disclosures, both prosecutors argued, are premature, and affect the course of the inquiry by being influential.

They’re influential because they expose the failure of the authority to comply with the judicial inquiry.

In the case of Lithuania, however, the prosecution failed short of upholding the important role of journalistic investigation and obtention of victims in the care of human rights-focused organisations. Says Joe Margulies, a professor of law at Northwestern and counsel for one of the victims, said in 2011:

“[t]he Prosecutor is trying to deflect blame for the failure of his investigation onto NGOs and the media. It’s ironic that an official investigation into a secret torture facility should claim to be thwarted because the media is insufficiently transparent.”

In September of last year, things moved at an incredibly fast pace. Basing their evidence on publicly available information such as EU Parliament reports, flight data gathered by NGOs Reprieve and REDRESS, the counsels submitted a new complaint calling for a new investigation into the detention of Al-Hawsawi. The complaint explained that a thorough and effective investigation had to be made to “secure evidence, seek clarification, seek urgent preservation and disclosure of all relevant evidence, and identify all officials involved in the alleged violations with a view of ensuring they are prosecuted.”

Ben Emmerson, QC

The importance and effect of publicly available information and thorough disclosure could not be stressed enough in this case. The similar that has emerged against Poland will pave the way for those that will surely follow. Ben Emmerson had re-affirmed his commitment to the right to truth as a universal human right and a cornerstone of the legal commitments binding on all member-states not just at the Council of Europe, but at the United Nations. From our piece on Abu-Zubaydah, again:

“the right to truth is collective. Information is essential to a democratic system – in the context of human rights violations, there needs to be a clarification of the circumstances, of context, of policies, and of the institutional failures that let those happen in order to restore confidence in the system. The right to know what happened is fundamental for participatory decision-making in society.” It may appear counter-intuitive, Emmerson continued, “to conventional lawyers – but once it is recognized, every individual is entitled to invoke that right.”

The month following the filing, the Prosecutor informed both NGOs that he refused to launch an investigation. They immediately appealed his decision. The EU Parliament in Strasbourg adopted a resolution on October 10, 2013 urging Lithuania to re-open an investigation into CIA black sites, in regards to 4 cases already pending at the ECtHR, and a fifth application made in a domestic court in Italy:

whereas Parliament has condemned the US-led CIA rendition and secret detention programmes involving multiple human rights violations, including unlawful and arbitrary detention, torture and other ill-treatment, violations of the non-refoulement principle, and enforced disappearance through the use of European airspace and territory by the CIA; whereas Parliament has repeatedly called for full investigations into the collaboration of national governments and agencies with the CIA programmes;

whereas the Lithuanian authorities have reiterated their commitment to reopening the criminal investigation into Lithuania’s involvement in the CIA programme if new elements emerge, but still have not done so;

Reiterates its call on those Member States which have not fulfilled their positive obligation to conduct independent and effective inquiries to investigate human rights violations, taking into account all the new evidence that has come to light, and to disclose all necessary information on all suspect planes associated with the CIA and their territory; calls in particular on the Member States to investigate whether operations have taken place whereby people have been held under the CIA programme in secret facilities on their territory; calls on the Member States concerned (France, Italy, Lithuania, Poland, Romania and Sweden) to respond to the letters sent by the UN Special Procedures;

In this staunchly strong-worded resolution, which urges member states to launch thorough and detailed investigations from government records to phone records, and even forensic investigations at the prison sites themselves, the EU Parliament follows a trend of transparency regarding the collaboration with CIA of EU member states, and has called on every member states not to just comply with recommendations and requests of the ECtHR, but also those made at the UN. The practice of rendition and black sites by the CIA is not an American concern; it is a worldwide concern, that must be addressed by all member states.
In spite of this call, the appeal was just as quickly dismissed.  Yet another one was made, in a remarkable show of consistency and perseverance in the pursuit of truth and justice – and this time, the Vilnius Regional Court upheld the demand for an investigation, and the case is now re-opened. The Regional Court claimed that previous dismissal by the Prosecutor General had been “groundless”.  Julia Hall, Amnesty International’s expert on counter-terrorism and human rights, was justifiably and understandably delighted with the news. The persistence of the counsel for Al-Hawsawi must be commanded. In a statement released shortly following the decision of the Vilnius Regional Court,
“The Lithuanian government and Prosecutor General must now open a full and effective investigation into Mustafa al-Hawsawi’s claims and ensure that any other individuals who have alleged that they were held in secret CIA detention there are afforded the same right.”
As of today, investigative journalist Jason Leopold, whose thorough body of work includes the obtention and publication of the diaries of Abu-Zubaydah, clearly detailing his arrest, detention, and torture, has filed a Freedom of Information Act (FOIA) lawsuit to obtain a copy of the Senate Intelligence Committee’s torture report and CIA activities, chaired by Senator Dianne Feinstein. This is the exact same report that Ben Emmerson asked to be released in this UN report from March 1, 2013; a situation he called “a pressing concern”.  After Leopold’s amended claim, a response came, a peculiar and unusual one: his request was denied; the Senator has “full control” over the report and its hypothetical release. The Court argued it had no jurisdiction over Leopold’s claim. The Senate’s torture report will not be released anytime soon.

Al-Hawsawi is still detained in Guantanamo. NGO REDRESS, represented pro-bono in the case, filed a motion on October 17, 2013 to submit against the classification regime blocking them from accepting complaints to third countries, hindering the investigations in the case, which amounts to a violation of his right to a fair trial. On November 27, 2013, the military judge denied the motion.

Lethal allies: Khan v Secretary of State

As we tend to focus on the extraordinary feats of the International Criminal Court and somehow seek to enhance its legitimacy to trial war crimes, even in abstentia, we often lose sight of the fact that domestic courts are usually called in first instance to investigate, hear and sentence crimes committed by or against nationals. However, because internal processes are hardly reported in their entirety or are shrouded in secrecy, the ongoings of the rule of law in counter-terrorism proves to be tricky to address, and even trickier to make sense of. Sometimes, cases speak for themselves; this is the case of the Divisional Court on Appeal of the High Court of Justice this week, whose decision to refuse to permit appeal on the Noor Khan v Secretary of State,  highlights, outlines and emphasizes the inability to access political decisions surrounding the War on Terror. Why this decision has somehow fallen into deaf ears seems strange given the claims made and consequences for current questions of accountability of the United Kingdom in its worldwide counter-terrorism practices. Moreover, this raises the question of the accountability of the United States, the extent of the collusion being so deep it has permeated every level of counter terrorism operations (surveillance, intelligence, and ‘combat’).

Martin Chamberlain QC represents Noor Khan, the appellant, and an old friend – James Eadie QC, whom we were introduced to during Hassan v United Kingdom at the European Court of Human Rights – once again represents the Secretary of State, in yet another case in which collusion with the United States forms the basis of criminal accountability.

From a rally against drone strikes in Pakistan, October 2012

Facts of the case

Noor Khan comes from Miranshah, in the North Waziristan province of Pakistan. His father was a tribal elder, a member of the local Jirga, whose attributions are of legal and social order. On March  17, 2010, as his father was sitting outside holding a meeting with other elders of the province, a drone strike hit the area, killing 40 people, including Noor Khan’s father. Drone strikes, as of the time of the case and the time of this decision, are operated by the CIA. The process of intelligence gathering leading to a possible strike are not only a matter of United States intelligence, but it has also been reported in several media outlets, contemporaneously, that British surveillance firm GCHQ, operating under the British Secretary of State, was not only collecting intelligence in matters of the United States’ “War on Terror”, but collaborating with the US. GCHQ was sharing locanational data with the CIA, data from which the CIA determined which targets to hit.

On December 16, 2011, attorneys for Noor Khan wrote directly to the Secretary of State seeking clarification on GCHQ activities, especially in matters of facilitating CIA targeting and killing of suspected and alleged militants – often civilians – in Waziristan. Two months later, the Treasury Solicitor replied that regardless of the supposed gravity of the case, it would not derogate to the traditional “neither confirm nor deny” response given in those circumstances; disclosing GCHQ activities and their relation to CIA activities would “risk damaging important public interests, including national security and vital relations with international partners“. That line of defense – maintaining national security interests and the absolute, utmost and superior foreign relations between the UK and the United States – has permitted the refusal to appeal in the Divisional Court.

That Noor Khan’s father was a civilian, that collusion is a serious crime, and that the UK is responsible for indirect involvement in the grave breaches of human rights in the course of the “War on Terror” has not been found to constitute “extraordinary circumstances” in which the Court would hear a case relative to acts committed by UK nationals in a UK-supervised and UK-authorized operation of intelligence.

the absolutely-not-scary bird’s eye view of the GCHQ headquarters in Cheltenham, England

First attempt at recognition in a UK court of law

It is important to first state that Noor Khan and his solicitors have first called for a judicial review of the procedures under which GCHQ was operating in Pakistan; in that, not only was the Secretary of State not empowered with granting authorization to pass intelligence onto the CIA, but that in doing so, knowing full well the intent of the CIA in regards to that information, GCHQ would hereby facilitate the commission of war crimes or crimes against humanity. Due to the highly secretive nature of GCHQ operations, his solicitors also made a request for transparency – asking for the Secretary of State to not only formulate a lawful way to do so, if such was the way in which the UK wished to cooperate in matters of intelligence, but also publish the relevant circumstances. A week before this hearing, the Secretary of State emitted concern regarding the sensitive – understand: classified – nature of the elements discussed in front of the Divisional Court. It filed a public interest immunity (“PII”), which has the effect of not disclosing, even in the name of public interest, information gathered within the annexes of the case. One of the annexes contains a statement made by Paul Morrison, the former Head of the Counter-Terrorism Department at the time of the events of the case.  This is neither random nor casual – the decision to ask for full disclosure in matters of intelligence abroad and collaboration with the War on Terror waged by the transatlantic cousins has long been an issue of contention among public interest and human rights attorneys in the UK, fighting the issue of national security as much as possibly can in an effort to reveal to the public the real activities of GCHQ… which were eventually brought to light thanks to the Snowden leaks. This battle is not won, but has succeeded a couple of times. Revelation of this case is one of the instances in which it appears clear to us that the public interest lies in knowing that the UK government is participating in criminal activities in what it believes or assumes is a “vital foreign relation” with the United States.

The Divisional Court did not see it necessary to consider non-disclosure. It dismissed the claim for judicial review on December 21, 2012.

The claimant then reformulated to please the Court, keeping however in mind that the crux of the case lied within the tied responsibility of the UK in the commission of war crimes by the US; and that the difficulty would arise when the UK Court would find no jurisdiction nor discretion to judge the lawfulness of the US actions in Pakistan. In the reformulation, and the instruments used, is a skilful yet slightly warped intention by Martin Chamberlain QC to attempt to bring to the Court the facts of the GCHQ activities by themselves, and the danger they posed by themselves, without forcing the Court to examine the direct implications created by the CIA and therefore the United States. This delicate game of chess would then lead in the deposition and conclusion to a counter terrorism version of Alice in Wonderland in which the wonderland is filled by the dead bodies of civilians never indicted nor even allowed to make a case, where Alice would be a civilian attempting to reach for accountability in democratic societies supposedly upholding the rule of law, domestically and internationally, yet the Cheshire Cat of United States’ national security hovered over the distraught heads of those still holding onto the International Crimes Act of 2001. Reading this decision is falling down the rabbit hole of the unbelievable denial of representatives of the United Kingdom that not only is a context that the court refuses to address, at least under public admission, but that relations with the United States have to be preserved, at all costs. All. Costs.

A graph from PBS showing localisation of drone strike and approval rates by country. 44% of the UK population polled by Pew in 2012 would approve of US drone strikes.

Domestic instrument: the Serious Crime Act of 2007

When it comes to submitting a criminal claim committed by a UK national and its UK authority / leadership in a UK court, resort to domestic law is not only paramount, but in the international counter terrorism context, important to reiterate that domestic law in fact does bear provisions that allows alleged and suspected war crimes to be heard in domestic courts. It is only in its failure to do so that supranational (in the case of the UK, European) and international jurisdiction mechanisms can be implemented. Luckily, the Serious Crime Act of 2007, Section 44 contains what the claimant alleges was GCHQ activities: aiding and abating crime. (respectively, 44 “intentionally encouraging or assisting an offence”; 45, “encouraging or assisting an offence believing it will be committed; 46, “encouraging or assisting offences believing one or more will be committed.”) As those sections deal with actus reus, it is possible that, under the SCA 2007, a person might be found not guilty of the offence in question (section 50, Part 2) if he acted reasonably.

Professor Michael Clarke, director-general of military think tank Rusi, told Parliament in a session that it was “little doubt” GCHQ had passed off intelligence to the CIA.

The integration of information operations and sharing means that of course we share information. It would be very hard to say that the information that we share about people of interest isn’t used for a drone strike.

According to The Bureau of Investigative Journalism, which has been documenting the damages of the drone wars in Pakistan, Yemen and Somalia, the estimates of casualties due to drone strikes in Pakistan are between 2,537 and 3,646 since 2004, for a total of 381 strikes (330 under Obama, elected two years before the strike that killed Khan’s father). Those numbers, it appears, would make the assumption that passing off intelligence to the CIA is unreasonable.

Debating the war on terror: defining terror, war, combatant, immunity, and conflict

This is precisely the point where the Court’s decision starts burying itself into a sinkhole of head-shaking, refusal to consider a drone strike as murder.

In my view, a finding by our Court that the notional UK operator of a drone bomb which caused a death was guilty of murder would be understood – and rightly undersood – by the US as a condemnation of the US.

Note the use of the conditional tense.

In an attempt to what could appear to appease the Court, Chamberlain finds himself in the position of arguing there is, in fact, no “war on terror” as is always politically argued – that the issue of the conflict between the United States and Pakistan is of a whole different nature. Arguing Khan’s case without mentioning the serious breaches of international criminal law committed by the US is nothing short of a mental game of chess in which all of the pawns have to be sacrificed to the altar of political pandering. The Court will refuse in all matters possible – legitimately, jurisdiction, and less legitimately, criticism – to consider, even contextually, that the CIA drone strikes are unlawful under international law. It was a question of tip-toeing around the issue as much as legally possible whilst still assessing the gravity of GCHQ collusion.

Anticipating a possible line of defence by the Respondent to call combatant immunity for GCHQ operatives working and cooperating with the CIA on drone strikes, Chamberlain then proceeds to describe what seems to be a denial of the War on Terror, but actually is a perfectly logical and rational denunciation of said War on Terror;  a reasonable claim that none of these facts could possibly exist in a democratic society abiding by the rules of criminal justice abroad and at home, following the regulations of warfare if such a conflict became an international armed conflict, and human rights law. Chamberlain explains why it would be impossible – reading, impossible to admit – a defence of combatant immunity:

First, CIA officials are not members of the US armed forces and GCHQ officials are not members of the UK’s armed forces. They cannot, therefore, be combatants. Secondly, it has never been suggested that there is an armed conflict with Pakistan. In so far as it is suggested that there is an armed conflict with Al-Qaeda taking place in Afghanistan and elsewhere, that is wrong because a) Al-Qaeda is not a sufficiently coherent grouping to be capable of being a party to an armed conflict; and b) the acts of violence with which Al-Qaeda is associated are too sporadic to reach the threshold of violence required to establish the existence of an armed conflict. Thirdly, if there is an armed conflict in Pakistan between the US and those who are targeted by the drone strikes, it is of a non-international nature.

End scene.

Eadie treads lightly. He doesn’t want to deny the fact that there is a context of conflict in which the issue of whether or not an intelligence agent constitutes a combatant – and is therefore eligible to the defence of combatant immunity – is “fact-sensitive”. He will even go as far as saying that “this is a factor of great importance”. But it’s clearly not enough. The Lords expressed that it was “unnecessary to express a concluded view”. It appears as though this “factor of great importance” ought to be discussed in the eyes of both Eadie and the Court, but preferably not in a court of law, and definitely not on public record.

January 2011: Pakistani tribesmen march against drones in Miranshah, the town where Noor Khan’s father was killed. (Global Post/AFP/Getty)

Chamberlain accepts that all manners of defence could be taken under Section 44 and following of the Serious Crime Act 2007. He also accepts that individual responsibility of GCHQ officials would require the satisfaction of mens rea and could hereby be dismissed on the claim that said official would simply follow a policy. The applicant however insists that the lawfulness of GCHQ’s collusion with the CIA is in question. Problem is, it is impossible to insist that indirect responsibility can be raised for a war crime unless said war crime is acknowledged as such. In this regard, the Court could be within its rights in matters of jurisdiction and discretion in sitting against judging the policies of the United States. It appears, however, that the issue of jurisdiction, although described in a page and a half, is secondary to the Divisional Court. What was mentioned and what seemed to have motivated the dismissal is political, and is, of course, tied to this ethereal, evanescent yet ubiquitous national security – this national security that justifies a PII claim, that justifies refusing to acknowledge criminal activity by an allied state, that national security that authorized, extra-constitutionally, criminal activities by GCHQ officials.

In the secondary claim made by the claimant, which refers to international humanitarian law; more specifically, section 52 of the International Criminal Court Act of 2001, crimes committed outside of a domestic court’s jurisdiction. Section 52 refers to the criminal act as being an ancillary offence if being committed outside of England and Wales, yet still amounting to a crime against humanity. Schedule 8, article 8 (2) (c) (i) defines crimes against humanity as such:

In the case of an armed conflict not of an international character, serious violations of article 3 common to the four Geneva Conventions of 12 August 1949, namely, any of the following acts committed against persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placedhors de combat by sickness, wounds, detention or any other cause:

(i) Violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;

The claim made by the Respondent regarding the jurisdiction of the Court and its limited scope following the US Supreme Court decision Underhill v Hernandez – “and the courts of one country will not sit in judgement on the acts of the government of another done within its own territory” – is impossible to detach from the facts of the case. Asserting knowledge of a war crime on the part of GCHQ officials acting on behalf of the Crown leads to the denunciation of those drone strikes as being in violation of the Geneva Convention and the International Criminal Court Act of 2001; the targets being civilians, and not “alleged militants” as often declared by NATO officials.  Although the Underhill ruling is impossible to overturn in international law, as state sovereignty is a governing principle, comes the permanent, overbearing, overwhelming and absolutely inevitable exceptionalism of the situation. This is a grave, serious breach of human rights law and international criminal law. Chamberlain maintains that his injunction for relief is based on the fact that CIA actions are committed by UK nationals, which makes their actions unlawful under English law. The very thin line to walk between international jurisprudence on never sitting on the legality of another state’s actions and ruling clearly on acts committed on behalf of said state seems clear to Chamberlain. It also seems clear that international human rights law imperatives ought to be addressed within the Court. It appears incumbent to the United Kingdom to declare the fact of GCHQ collusion with CIA-operated drone strikes an offence so serious, defined and authorized under cloak of secrecy, that the judicial branch fell under duty to address it.

James Eadie QC, solicitor for the Respondent, who himself recognized that the issue of crimes committed by the CIA were “a factor of great importance”

The judicial branch and executive authority: a Court decision upholding that “the law is bound to diplomacy”

Paul Morrison, the former head of the Counter-Terrorism branch, gave testimony in an annex that the Respondent initially sought to classify. The Lords maintained they would have reached the same conclusion even without Mr. Morrison’s addendum, but it bears repeating that the issue in this case was not one of simple jurisdiction, but a matter of discretion in addressing war crimes committed under counter-terrorism actions. His statement indicates that not only would the Court hear Mr. Khan in defiance of national security, but that said security is held in high regard by the United States, and therefore this relationship must be preserved for the good standing, tenure and safety of the United Kingdom:

… The UK’s bilateral relationships with the US and Pakistan are critical to the UK’s national security as they are both key partners in efforts to combat the very real threat of terrorism faced by the citizens of all three countries. A key feature in international relations is that law, politics and diplomacy are bound together and the assertion of legal arguments by a state is often regarded as a political act. The UK’s international alliances could be damaged by the assertion of arguments under international law which might affect the position of those states. (…) Whatever the findings of the Court (…) (they) are liable to complicate the UK’s bilateral relations with both the US and Pakistan, and there is a clear risk of damage to essential UK interests.

The argument advanced by Mr. Morrison is nothing new and has been a major obstacle in the rule of law between nations since Westphalia. The concept of strict legality versus transcendent legality has been well-addressed by Gerry Simpson, who illustrated the issue in a comprehensive way (1), understanding the complex mechanisms between the somewhat absolutist position of the supranational, suprapolitical, and overarching rule of international law, and impossibility to remove diplomatic protocols, transnational agreements, and local and international politics from a position in which one state’s actions are deemed a war crime by another, or a conflation of, states.

A standard position  emerges from all this that seeks to implicate something called ‘politics’  in the ruination or compromise of something called ‘law’. A just and meaningful international criminal order could only then be created by cleansing the system of political influence. When politics interfere with judging, then politics must be swept aside.  (…) For ‘realists’ like Hankey and Kissinger, war crimes trials are bad politics. Generally, such pragmatists are hostile to the idea of applying principles of justice at the international level. (…) There is no over-arching and trumping justice in the international system that would override these concerns. (…) The certainty of criminal law must give way to the subtleties of diplomacy.

However, in this particular case, the United Kingdom is refusing to grant relief on actions that are clearly demonstrated as grave breaches of the Geneva Convention – actions that were committed by UK nationals within a corporation acting on behalf of the UK government in collusion with a foreign state directly committing these violations. The United Kingdom would not simply sit on the acts committed by the CIA, let alone rule on them, but would hear, investigate, inquire and judge the actions of GCHQ officials. By placing the interests of its relationship with the United States and their bilateral work on intelligence gathering above the lawfulness of UK agents’ actions, the UK is somewhat granting immunity to GCHQ officials, arguing they are simply respecting the agreements between the UK and the US.

If Simpson is correct, and refusing to address the issue of politics in international criminal law amounts to strict legalism, there is perhaps an interest in using the rule of international law as an instrument of measure against the failure of the state to operate with, by and through lawful, transparent means. Chamberlain reiterated a few times that should the actions of GCHQ officials be found lawful under English law, then the Respondent should not see any issue in publishing the authorization and actions in the name of public interest. GCHQ agents would be gathering data, as ordered, and passing it on to the CIA, as ordered, unbeknownst to them that the CIA is operating those drones – outside of the usual Department of Defence military action scope – and directing them against civilians in Pakistan (as well as  Yemen, Somalia, and Afghanistan) suffering military action that typically does not fall under military and hereby congressional review. The United Kingdom, in assisting the CIA, finds itself in the same position of operating extrajudicially in order to achieve a means to an end that is somewhat unclear.

On December 5, 2013, Ben Emmerson – UN Special Rapporteur on Human Rights while Countering Terrorism – told the UK Parliament that the UK complicity on US drone strikes was “inevitable”.

There’s a reasonable presumption that the provision of information or sharing of information makes us complicit in an American policy.

Complicity implies responsibility. As per the International Criminal Tribunal for Yugoslavia (ICTY, in Tadic): “responsibility for a crime other than the one agreed upon  in the common plan arises only if, under the circumstances of the case, it was foreseeable that such a crime be perpetrated  by one or other members of the group and the accused willingly took that risk.” (para. 228) If GCHQ agents wish to bring forward a common defence they were left ignorant of the actions the CIA would undertake with the intelligence they helped gather, they should be invited to do so in a court of law. Aside from the politics of assisting the United States in the unfathomable concept that is the War on Terror.

(1) Simpson, Gerry. Law, War & Crime. Polity Press, 2007.

How I learned to stop worrying and love drones

Created by Tom Tomorrow for the Daily Kos

For twelve hours, fifty-two minutes and eleven seconds, Sen. Rand Paul (R- KY) held the floor of the Senate in a remarkable filibuster aimed at derailing one of the latest decisions made by the Obama administration in matters of domestic security. What is even more remarkable about this is that it was up to a libertarian, a man extremely controversial for his views on the Civil Rights Act, to stand up for the rule of law. What is deplorable, however, is the deafening silence on the part of Democrats.

Sen. Rand Paul tried to oppose the (ultimately successful) nomination of John Brennan as head of the CIA. This nomination comes only days after the Obama Administration released information implying that in cases of emergency, the Administration will be authorized to use drones to strike against US citizens on US soil. This news is enraging and extremely dangerous, yet it failed to draw the attention of the population. NDAA was signed into law on New Year’s Eve, when no one else was looking, and it was left to über conscious human rights workers and lawyers to ring the alarm, amidst the cacophony of the House Speaker reelection and talks about unemployment rates. In times of fear, of distress, and of so-called necessity, history has proven to us that civil liberties are the first to go. Everyone knows by now the evils of the Bush Administration; everyone has denounced the war-mongering, facts-fabricating ways of Dick Cheney and Condoleezza Rice, the escalation to a war that was doomed to fail from the get-go. The collective breath of relief exhaled on the day of Obama’s election has lulled us into a false sense of security, cradled us in the belief that civil rights violations were over, and the Bill of Rights safe and protected by the wide shouldered power of Barack Obama, himself a constitutional lawyer.

That it took a Republican – and a southern one at that – to denounce the failure of the Administration to protect US citizens from arbitrary and unlawful targeted killings is not surprising. That it came from Rand Paul in a record filibuster took everyone by surprise, most of all traditional liberals, usually rallying around Obama as the democratically elected leader that had taken a stand – as then-Senator of Illinois – against the war in Iraq. The truth is, there is no political voice loud enough to speak out against the ever expanding use of drones in US foreign policy, let alone domestic policy. It took a libertarian, overly decried by the left for his position on women’s rights and civil rights, ironically enough, to say what should have been on everyone’s mind: “Where is the Barack Obama of 2007? (…) If there were an ounce of courage in (the Senate), I would be joined by many other senators. Are we going to give up our rights to politicians?” He later elaborated:

“When I asked the president, ‘Can you kill an American on American soil,’ it should have been an easy answer. It’s an easy question. It should have been a resounding an unequivocal, ‘No.’ The president’s response? He hasn’t killed anyone yet. We’re supposed to be comforted by that. The president says, ‘I haven’t killed anyone yet.’ He goes on to say, ‘And I have no intention of killing Americans. But I might.’ Is that enough? Are we satisfied by that?”

Screen shot 2013-03-09 at 13.58.10

Courtesy of The Onion

The good news is, Attorney General Eric Holder took the time to personally answer Sen. Rand Paul’s concerns in a letter. The bad news is, the letter’s content is as much subject to concern over civil liberties than anyone should have been before and during the filibuster. Holder tried to be clear and concise, claiming, ““It has come to my attention that you have now asked an additional question: ‘Does the President have the authority to use a weaponized drone to kill an American not engaged in combat on American soil?’ “The answer to that question is no.” But what does Eric Holder mean by “engaged in combat”?  Those terms are clearly a call-back to the Bush Administration’s worryingly broad definition of combat and combatants, dating back to a Pentagon memo in 2004 basically referring to any Guantanamo Bay inmate as an “enemy combatant”, then clearly expanding the laws of war to anyone in Afghanistan that could be more or less linked to terrorism activities, including drug lords. The War on Terror is well and alive, carrying with it a reading and interpretation of the laws of war that could be summed up by Bush’s infamous phrase, “you are with us or against us”. Ryan Goodman, in an excellent opinion piece released today in the New York Times, explains:

In a 2010 Fox News interview, under pressure to explain whether the Obama administration was any closer to capturing or killing Osama bin Laden, Mr. Kerry’s predecessor, Hillary Rodham Clinton, said that “we have gotten closer because we have been able to kill a number of their trainers, their operational people, their financiers.” That revelation — killing financiers — appears not to have been noticed very widely.

As I have written, sweeping financiers into the group of people who can be killed in armed conflict stretches the laws of war beyond recognition. But this is not the only stretch the Obama administration seems to have made. The administration still hasn’t disavowed its stance, disclosed last May in a New York Times article, that military-age males killed in a strike zone are counted as combatants absent explicit posthumous evidence proving otherwise.

Mr. Holder’s one-word answer — “no” — is not a step toward the greater transparency that President Obama pledged when he came into office, but has not delivered, in the realm of national security.

Some will claim that despite concerns from those of us on the very left, Sen. Rand Paul’s filibuster was, indeed, bipartisan when Sen. Ron Wyden (D-OR.) joined in. But is this enough? Will there still be massive national silence, especially from the left, regarding Obama’s law enforcement and military policies in clear defiance of the right to due process? If the 2004 – and later 2006, in the Military Commission Act – definition of “enemy combatant” has generated an outcry from opposants to the Bush Administration, where is the uproar today? Is there still a belief among the majority of Americans affiliating themselves with the Democratic Party that Obama is the anti-war candidate? Or has the war machine created such an intense feeling of fear and dread among the population that any violation of civil rights are acceptable, as long as drones are only killing “the enemy”? In every society on the verge of a democratic breakdown, signs have appeared to be massively erected in neon colors around the time an “enemy” of some sort has emerged; once distant and foreign and justifying the deployment of armed forces abroad – resulting in a bloated Defence budget – the “enemy” then moved closer to the shore, until it infiltrated the regular population.

Of course, any call against war, against military action, against violation of international law is met with extreme sarcasm on the majority of the Republicans, first of them Sen. John McCain, coming to the lectern to say the following:

“…to somehow say that someone who disagrees with American policy — and even may demonstrate against it — is somehow a member of an organization which makes that individual an enemy combatant is simply false. It is simply false. (…) “The country needs more senators who care about liberty, but if Mr. Paul wants to be taken seriously he needs to do more than pull political stunts that fire up impressionable libertarian kids in their college dorms. He needs to know what he’s talking about.”

That scathing comment said, John McCain was joined by Sen. Lindsay Graham. When asked if the question of whether the President could act on a US citizen on US soil, Graham simply replied: “I don’t think that question deserves an answer”. The problem is, it is the only question, and we, the people, deserve an answer. The irony of two formidable opponents of the Obama Administration on other domestic issues suddenly supporting the President and calling a filibuster a waste of time is not lost on the observer.

The most remarkable response to Rand Paul’s filibuster, however, came from John Yoo, the lawyer most known for releasing a memo under the Bush Administration authorizing the use of torture on aforementioned enemy combatants, children included. John Yoo is currently teaching law at UC Berkeley. Alongside McCain and Graham, Yoo was quick to denounce the filibuster as a childish maneuver that could only come from anti-war utopists with no grasp on reality:

“I admire libertarians but I think Rand Paul’s filibuster in many ways is very much what libertarians do, they make these very symbolic gestures, standing for some extreme position (…) It sort of reminds me of young kids when they first read The Fountainhead or Atlas Shrugged and they suddenly think that federal taxation equals slavery and they’re not going to pay any federal taxes anymore.”

Once again, the irony of a lawyer agreeing to the use of interrogation techniques clearly prohibited by law trying to disprove an intervention on the very values the Constitution stands for is a little bit too unbelievable, but John Yoo has somehow worked his way into the inner circle of pre-approved legal minds that would bend the principles backwards just to fit a political machine that would have never stood the Supreme Court test otherwise. There is clearly a lack of understanding on the part of UC Berkeley to allow this man to teach, to form young legal brains, if this is the example of violation of the rule of law we are supposed to uphold. If John Yoo is fit to teach law, there is indeed something very sick in this society, where fundamental principles of liberty are constantly stampeded in order to achieve political gain. John Yoo sold out to the Bush Administration, and unfortunately is still there to tell the tale of the just war, the justifiable means to an end, the low price of the human life and the overpowering grasp of war-mongering governments on their population.

In the meantime, the US Air Force is quietly taking its tally of drones strikes in Afghanistan offline. John Brennan also took his oath of office as Director of the CIA on a Constitution that was missing the Bill of Rights. Speaking of signs…