When it comes to torture, sunshine is the best disinfectant

On Monday, National Security Council Spokesperson Bernadette Meehan confirmed that the White House received a letter signed by 12 Nobel Peace Laureates calling on the administration to declassify information on the methods of torture used on detainees following the 9/11 terror attacks, including a long-awaited Senate Intelligence Committee report that has been resisted by the CIA. The letter urges the administration to verify the closure of so-called “black sites” abroad, where US officials sent detainees to be tortured outside the jurisdiction of US law, and to provide the world with a coherent plan to close the naval base at Guantanamo Bay.

The letter emphasizes the authors’ experiences with torture in their own national contexts, like the South African apartheid regime and the conflicts in Northern Ireland. The letter says, “Many of us among the Nobel Peace Prize laureates have seen firsthand the effects of the use of torture in our own countries. Some are torture survivors ourselves. Many have also been involved in the process of recovery, of helping to walk our countries and our regions out of the shadows of their own periods of conflict and abuse.”

In her statement responding to the matter, Meehan emphasized the president’s commitment to ensuring that torture and rendition programs never again be utilized by the US government, as evidenced by the issuance of Executive Order 13491, which prohibited US officials from using torture on detainees. Meehan did not mention the administration’s decision to not prosecute US officials who had engaged in torture, many of whom could be implicated by the information this letter asks be released.

In class we have discussed how the courts, American society, and the international community have struggled to confront the use of torture in the context of a highly secretive national security apparatus. Even today, five years after the issuance of Executive Order 13491, human rights activists are struggling to get the US government to properly acknowledge and hold to account those egregious violations of international and domestic law.

At the heart of this story is a conflict between the lofty rhetoric of the Obama administration on issues of torture, detention, and rendition and their inability to provide substantial measures for legal accountability. The refusal thus far to bring this information to the light of day is totally illegitimate. By embracing the state secrets doctrine in civil courts and by fighting the release of information surrounding the use of torture as a matter of policy, the administration has obstructed justice, ensuring that the laws, both international and domestic, that were brazenly violated in the aftermath of 9/11 cannot be duly enforced. As the esteemed authors of this letter remind us, truth and openness are the foundation of any recovery from a period of state-sponsored brutality. Ducking the issue will only cause the institutional culture in the security and intelligence bureaucracies that permitted these abuses to fester unchecked. One can only hope that Mr. Obama, a Nobel Peace Laureate in his own right, will sign on to the letter too by addressing this issue more substantially before he leaves office.

http://www.cnn.com/2014/10/27/politics/nobel-laureates-torture-obama/

Looking forward: Post-Afghanistan Detainees

 The United States is planning on leaving Afghanistan in a war capacity by the end of this year. However, there are many foreign nationals in their custody. Many of these foreign nationals might not be in their custody legally. Jessica Donati focuses on a secret prison located in Bagram used by the U.S. This prison is used to house foreign nationals from many nations, not just Afghanistan. There is a large question remaining in the face of U.S withdrawal from combat in Afghanistan. What will happen to the prisoners in Bagram? The prisoners have been brought unlawfully and outside the use of proper legal channels. Many of them have not been charged with a crime. It is against U.S policy to turn over detainees to nations in which these prisoners could be treated improperly or even executed. Another issue arises when one thinks about the issue of national security versus transparency. The United States refuses to disclose the identities of the prisoners they have detained. This means there is less third-party insight about how to properly deal with releasing the prisoners. Furthermore, if allied nations are left in the dark about practices the United States is using in combat, that could lead the U.S to be somewhat isolated. This isolation would undercut the legitimacy of alliances for the United States. The options for dealing with the detainees are also limited. The author mentions that if a crime committed by a detainee oversees is also a crime according to U.S law, the detainee can be prosecuted in the States. Another option is transferring the detainees to Guantanamo. This option worsens Obama's position that Guantanamo Bay was supposed to be closed years ago, yet still holds "155 detainees". Previous detainees have been returned to their home nations after a decade or more without charge. This happens rarely from the Bagram "secret prison".

          There are many legal and ethical issues raised by U.S withdrawal from Afghanistan and the impact this action has on detainees in Bagram. The United States is under legal obligation to not turn detainees over to nations that would prosecute them for crimes they did not commit or would treat them inhumanely. Detainees held in Bagram are from Pakistan, Yemen, Russia and Saudi Arabia, nations not generally known as models for acceptable human rights practices, according to Donati. This practice would violate the Conventions Against Torture, which has been signed and ratified by the United States. Transference of prisoners from Bagram to Guantanamo only continues the unethical practices of the U.S. The United States loses the right to hold detainees in Afghanistan after their withdrawal in 2014. If the detainees have not committed crimes to warrant their detainment in the first place, any subsequent prison transfer would also be unlawful. Next, even if the prisoners are released to their home nations, what is there remedy? How can the U.S "make-up" for taking years of their lives away without due process? By operating outside its own law, the United States has created a black hole around itself. The U.S wanting to be exempt from its fair practices that are in place on its own soil has opened the nation up to multi-level scrutiny. Lastly, there is a "tough-to-predict" repercussion from operatives within the prisoner's home nations. Actions by the U.S in secret prisons in Bagram, as well as all over the world might be inspiring to those considering joining forces against the U.S.

State Secrets in Restis v. UANI

The decision in the current case Restis v. United Against Nuclear Iran could potentially give the government even more power in the state secrets privilege than before. According to Sudha Setty of Just Security, the United States government intervened in the civil suit on the grounds that proceeding would cause the declassification of documents pertaining to national security. This is the first case of its kind, Setty asserts, because not only is the government intervening in a private suit (like Mohamed v. Jeppesen), but UANI is not associated with any government entity. Jeppesen was contracted by the government and therefore it is plausible for them to use the state secrets privilege in a suit involving that company. The controversy here is obvious: how did a supposedly private company obtain documents that contain state secrets and how does the government know? As Lauren Bateman of Lawfare points out, government intelligence agencies cannot attempt to sway public opinion. So how is it possible that a private group that clearly has a political motivation can be protected by this government intervention?

On Wednesday, October 8th, Judge Ramos of the Southern District Court of New York heard arguments from the government and from Restis’ representation to determine whether state secrets could be invoked. Restis immediately opened with the controversial topics mentioned above, also adding that in no other state secrets case has the government refused to issue a public affidavit addressing what kind of secrets are being protected. Restis’ representation also asserts that application of the 2009 Holder memorandum would evaluate the case in support of Restis. This is because, at least on the surface (since the government will not disclose anything but the surface level), the privilege claim does not seem to meet the requirements of the Holder memo. What is more is that UANI has not stopped making the claims that Restis is involved in business in Iran (the original purpose of this defamation suit).

After the plaintiffs have made a compelling argument that this case is indeed unique from other state secrets cases, the representative for the government essentially just says that every case is unique and so their argument isn't valid. When asked if it would be possible to have an in camera case including the plaintiff’s representation (he has security clearance such that he currently works in various SCIFs), the defendant simply says that that is “not done.” To me, this argument is simply not sufficient. It seems abundantly clear that the government is hiding some sort of illegal activity, or else why would they even become involved in this case?

If the state secrets privilege is upheld in this case, it could set an extremely dangerous precedent. The privilege is already intensely powerful: in a large majority of the cases where it is invoked, it is upheld. If Judge Ramos supports it here, that could mean that the government could start surreptitiously doing business with anyone they want, then invoking state secrets to hide it, and never see the consequences of this corruption.

Setty points out that this case has the potential to set another precedent too--if Judge Ramos allows the invocation of state secrets but does not dismiss the case and finds that Restis’ claims are valid, there are no guidelines as to what kind of remedy Restis could receive. Judge Ramos would have to come up with a new way to evaluate civil suits like this or dismiss the case altogether. Luckily for Restis, Judge Ramos seems to be actively seeking out ways that the case can be settled while keeping national security and the remedies in mind.

http://www.lawfareblog.com/2014/10/read-out-hearing-on-dojs-state-secrets-claim-in-restis-v-uani/

http://justsecurity.org/16418/state-secrets-secret/

http://www.justice.gov/sites/default/files/opa/legacy/2009/09/23/state-secret-privileges.pdf

Chinese Cyber Intrusion Into Apple iCloud

http://www.fastcompany.com/3037336/china-launches-cyber-attack-as-new-iphones-arrive

The article in question examines a recent cyber attack that is alleged to have been launched against Apple customers by the Chinese government. According to reports, the Chinese government, known for using aggressive computerized tactics against the United States, has hacked into Apple Inc.’s databases and retrieved username and password data associated with the online iCloud accounts of Chinese customers. They did this by creating a replica of the popular cloud program’s login page and fooling users, who believed that it was the true login portal, into entering their usernames and passwords, thus capturing that information. This, allegedly, has enabled officials to “gain access to all information stored in iCloud, including photos, iMessages, contacts, emails, and more.” For an authoritarian government seeking to suppress dissent, like the one in Beijing, this could be a valuable tool in harsh measures intended to do just that. It may be related to the ongoing unrest in Hong Kong, where citizens are rallying for democratic reforms that will give them a more expansive voice in determining who occupies the city’s government.

Of course, this raises issues insofar as it constitutes an attack by one country upon another. It also calls into question whether or not the actions here are actually cyber attacks, rather than cyber exploitation, which, as a form of espionage, is not illegal under international law.

As to how this intrusion can be classified, Michael Gervais (from our reading for the October 24 lecture) references the U.S. Army’s definition, which calls cyberattacks “the premeditated use of disruptive activities, or the threat thereof, against computers and/or networks, with the intention to cause harm or to further social, ideological, religious, political or similar objectives. Or to intimidate any person in furtherance of such objectives.”

China’s actions here could, therefore, very well be defined as a cyber attack, because it disrupts the normal functionality of Apple’s iCloud platform for those who were targeted, and the knowledge that their information might have been compromised by an authoritarian government may incidentally cause effects similar to those arising from more direct coercion, or the information might directly be used to coerce Chinese citizens. Furthermore, the fact that Apple’s systems have been compromised can be construed as a form of pressure directed against the company, with China implicitly declaring that it will penetrate the firm’s systems when that would further national interests.

The most obvious legal objection to China’s actions here is the fact that, because Apple is an American corporation, cyber attacks by foreign states represent an intrusion upon American sovereignty.

It is also an attack upon civilian interests. As Apple is neither a military target nor a civlian arm of the United States government, and as it does not constitute a threat to Chinese interests in and of itself, we can find in international law many condemnations of Beijing’s actions in this case. However, it should be noted that, as expressed in Michael Gervais’ piece, the absence of a state of war between China and the United States makes the application of laws of war more difficult than would otherwise be the case.

Cyber Warfare: The War Of Zeros And Ones

The Popular Science article, "The War Of Zeros And Ones" by Peter Singer explains an early example of cyber warfare before moving on to current government programs and exploring possible uses and implications of cyber warfare. In 2006, Israel discovered Syria's nuclear weapons program through the information collected from a Trojan horse they installed on a Syrian official's laptop. Israel's bombing of the nuclear facility was supported by a cyber-attack on Syria's military network which prevented Syria's air defense operators from detecting and responding to Israel's fighter jets. Because of the age of the field, and the wide variety of actors, goals, and methods used, the precise meaning of the terminology used for cyber warfare and cyber attacks remains poorly defined. The article cites the US Air Force definition of the goals of cyber operations: to "destroy, deny, degrade, disrupt, [and] deceive," while also defending against the enemy's like-minded use of cyberspace.

An important point made by the article, which was also made by others when analyzing the legal implications of cyber warfare, is that cyber weapons should be treated the same way as conventional weapons when used in war. However, the article is not written from a legal background and does not apply any consideration of the laws of war to the proposed uses of cyber warfare.

The author proposes "information warfare" attacks where "the objectives might be highly strategic, such as planting false orders that appear to come from top leaders, or more tactical insertions, like when the Israelis co-opted the Syrian air-defense network." In addition to the immediate consequences of such attacks, in the long term they could corrupt users' trust in electronic communication, slowing decision making and potentially leading to abandoning technology for critical communication. There are multiple legal issues with such attacks. While this type of attack would often be categorized as a ruse de guerre, care must be taken not to resort to perfidy, which would include planting false orders. Even if individual attacks would be considered legal, if they are part of a larger campaign aimed at destroying the enemy's trust and ability to operate they could be considered illegal under the laws of war.

Other proposed attacks targeting military systems, such as disabling the engine systems of an enemy's navy or taking control of an enemy's drones would generally be permissible under the laws of war. Robotic weapon systems such as the Predator and Reaper drones create new vulnerabilities whereby the drone's control system could be compromised, allowing an attacker to use the drone against its owners. Not limited to drones, these "digital battles of persuasion" for control of weapons systems could become a major part of modern warfare and an example of the effective combination of cyber and traditional attacks.

Although the author proposes the possibility of using a cyber attack to destroy a dam to flood enemy territory, such attacks are unlikely because they are explicitly forbidden in international law by Article 56 of Additional Protocol I. The final section of the article, titled "Cyberwar Is Civilian War," proposes a variety of attacks targeting the civilian infrastructure that supports military operations. Citing historical examples such as the bombing of civilians in WWII, the author makes the case that cyber warfare may take a similar course with the targeting of civilians. However, the treaties codifying customary international law for the protection of civilians were not yet written at the time of the cited examples, and the international policy climate is keener on the protection of civilians so attacks targeting civilians may be less likely. Unfortunately, the often covert nature of cyber attacks and the difficulty attributing them to particular states makes enforcement of policy much more difficult. With little to no international law addressing cyber warfare directly and with cyber warfare still in relatively early development, it is impossible to predict exactly what its impact will be.

Omar Othman's Extraordinary Rendition and Release

Like many other cases we have studied in class, When the truth's held captive: Omar Othman's release and Britain's Shame, by  Victoria Britain is an article about Omar Othman, a UK resident who was a victim of extraordinary rendition, subjected to torture, and held without trial for years.  Othman was initially allowed into the UK as a refugee "fleeing despots and torturers." Without any concrete evidence, not only was Othman held captive for years and  tortured but his entire family had to face embarrassment and public harassment.  Othman was a respected scholar and clerk and the Muslim community looked up to him and his principles and even the prison guards at the UK prison respected him. Furthermore, the only time that Othman was ever heard from was when "he came to the aid of the authorities by making public appeals for the lives and release of two British men held as hostages."  Prior to 9/11, the UK had seen a refugee in Othman but post 9/11 he was seen as an increasing threat that needed to be taken care of. Othman was imprisoned for years without trial and the two times that his lawyers did manage to get him out, he had to remain in house arrest. This was the man that Bob Quick, the former head of counter terrorism, described as " very dangerous....with extreme views." There is much in the media about how Othman cannot, under any circumstances, ever return to the UK. Other controversies around the case include his condemnation of ISIS.  Very little is said about holding the government accountable for what he endured.  It is appalling that this is what the media and the public focuses on as the issue of human rights, torture and discrimination is brushed aside, to keep the British government's involvement in the rendition and other such operations shrouded.  This is interesting, when taken into consideration that Britain has a sizable population that is radically anti-Islam.         

                It no longer amazes me that Othman, like many others we have read about, was held without trial and had to tolerate the horrors of torture, public defamation, indefinite detention, and separation from his loved ones. What does amaze me is that without any evidence or charges, not only him but his entire family and even his friends endured so much. His acquaintances were captured and tortured in Guantanamo, as officials sought more information on Othman. They were only released after threats of dragging the government along with its involvement in torture and other horrors of Guantanamo were made. Even the European Court of Human Rights denied Othman's appeal against deportation.

                It seems like those who condemned him were afraid  that he was a man of "significant influence" or that he had the ability to "influence views of others and their conduct." Yes, he was so influential that his prison guards treated him properly. He was so influential that officials thought him worthy enough to use him to make a public plea for the life of British nationals. Similarly, he was well respected by young British Muslims and the general Muslim community in Britain. Somehow, being a well-respected and religious Muslim has become the only criteria needed to condemn a well-respected man as "Al Qaeda's European ambassador." Ultimately, Othman was deported after officials in UK and Jordan came to a consensus that information that was retrieved by torture would not be used against him in trial.  His release by the Jordanian court has many implications. Beyond highlighting the British government's inadequacy in dealing with such cases, it paints a dim picture of what awaits ahead of us for the US and the UK. It is also in the hands of the civilian to be aware of these issues and to not let such gross ignorance impact our decision making process. We must educate ourselves on both side of an issue and question our government and demand accountability.  It is scary to think that ignorance has proliferated so widely, even among the most respected members of the government-- the people we trust to make the right decisions. As the article correctly points out, the U.S and the UK have no idea what they are getting into in the middle east. If we continue to hide behind the cloak of ignorance, self-deception, and ethnocentrism, the wars will never end. 

http://www.middleeasteye.net/columns/when-truths-held-captive-omar-othman-s-release-and-britain-s-shame-1700109416 

Drone Strikes Back

Drones. You can't live with em', you can't live without em', or so goes the narrative many Americans have chosen to believe. I remain unconvinced, and a well-read 2013 Washington Post article is yet another reason why. Whitlock's article presents the findings of two established human rights organizations on U.S. drone strikes in Pakistan and Yemen. Unfortunately and unsurprisingly their numbers contradict even the ever-ambiguous claims of the administration.

Perhaps most strikingly, by examination of local reports and personal interviews, Human Rights Watch found that 57 of 82 people killed by six drone strikes in Yemen since 2009 were civilians. Similarly, Amnesty International found that 30 civilians were killed in four of nine suspected U.S. drone strikes in Pakistan. Whitlock suggests these findings match a report put together by a U.N. human rights investigator who listed 2,200 confirmed drone strike deaths in Pakistan. He listed 400 of that total as civilians and an additional 200 as “probable noncombatants.”

The Washington Post article admits that these numbers come from a variety of sources and that their exact quantities often vary greatly. In this admission, Whitlock addresses an important issue concerning drone-related estimates: The people responsible for the strikes will not yield specific information. The American people is left to assume why the administration refuses to publish who, where, and by what legal grounds they are targeting individuals. The United States' targeted killing of American citizens, refusal to address legal grounds, and general incompetence leave us with a host of possible reasons.

In 2011 the United States targeted and killed three American citizens: Anwar Al-Aulaqi, Samir Khan, and Abdulrahman Al-Aulaqi at a restaurant in Yemen. The ACLU sued the government of the United States claiming the targeted killing deprived the American citizens of their lives without due process of law. Their accusation is, of course, incontrovertible, and it sheds some light on why the United States government is so unwilling to talk specifically about drone strikes.

In Whitlock's article, he reminds us of several quotes from the administration which display its commitment to nebulous language. Supposedly the only people who are targeted by the administration are those who pose a “continuing, imminent threat” to the U.S., and only the strikes in which zero civilian casualties would be “a near-certainty” would be carried out. Again, a White House spokeswoman, in reference to an Obama speech, said “As the President emphasized, the use of lethal force, including from remotely piloted aircraft, commands the highest level of attention and care.” Of course the only appropriate response to a comment as transparently embarrassing as that could be “no duh.”

Whitlock's article also includes a report from Amnesty International that displays the United States' incompetence regarding drone strikes. On July 6, 2012, two errant strikes killed 18 civilians, some of whom were medics, in a single location. Human Rights Watch released a report of a September 2, 2012 strike in which a bus carrying a number of civilians, including a pregnant woman and three children, was targeted and destroyed.

And so despite the administration’s best efforts, the less than savory details regarding drone strikes have been made public to the world. Their unintended consequences include civilian deaths, violations of state sovereignty, violations of American citizens' basic rights, and perhaps worst of all stupid comments by obnoxious White House spokespeople. Drones. You just might be able to live with em', but your freedoms certainly won't.


http://www.washingtonpost.com/world/national-security/drone-strikes-killing-more-civilians-than-us-admits-human-rights-groups-say/2013/10/21/a99cbe78-3a81-11e3-b7ba-503fb5822c3e_story.html


https://www.aclu.org/national-security/al-aulaqi-v-panetta

Leon Panetta's Views on Torture

     The article from Newsweek, What Former CIA Head Leon Panetta Says Now About Torture, discusses the variance of opinions on the use of torture from some of the most important men in the industry.  Some believe it is a practice that needs to end while others believe the information gathered from the harsh methods are worth the ethical and moral stigma.  Panetta, who did not become head of the Central Intelligence Agency until after the water-boarding had been banned, ended up dealing more with the ramifications of the public's new insight into the torture from the release of previously classified documents. By giving Senate investigators access to those documents, Panetta received a lot of grief from the White House, leading to a conflict that has yet to be resolved between the Senate Intelligence Committee, the CIA, and the White House. 

     As for opinions, Panetta's is very equivocal.  He believes that a lot of the information gathered was useful, but that we will never know if that information could be gathered another way.  He does not want to join in on the arguments either for or against.  The arguments for torture tend to be filled with misinformation; for example, officials claimed a prisoner broke under the torture to reveal important information on the whereabouts of Osama bin Laden but this later proved to be completely false. Those against the use of torture claim it is a waste of time because of the false leads often given by prisoners just for a break.  Many military officials have come out to denounce torture, going along with groups like Human Rights First who claim that torture only works in propaganda campaign.

     Torture is an incredibly prevalent topic in today's news and in this class. The outcome of extraordinary rendition is, more often than not, some form of torture to gain intelligence whether the prisoner has knowledge or not. Those prisoners subjected to torture wrongly will often try to take the government on in court but often get nowhere because of the risk of state secrets getting out. With the release of these documents to the Senate Intelligence Committee, however, it could lead to more settlements for the people who were wrongly detained in the name of United States intelligence.  I believe that there has to be a better way to gain this information, but I also have a hard time expecting that a better way will be utilized in the near future.

Government Secrets

Through the past week, the issue of the government trying to control information from the public has been creating much attention. The major problem in these cases has to do with the Foreign Intelligence Surveillance Act (FISA) and the National Security Letter (NSL) statute. Earlier this week, Twitter sued the government for not allowing them to publish how much the national governments demands user information. In the past, many other companies have also tried to do the same things but those cases have ended in settlements. Another court case has been under review by the Ninth Circuit ([Under Seal] v. Holder) which dealt with the issue of the NSL allowing the FBI to get specific information from credit cards, phone records, internet records, etc. without any judicial review or notice to the consumer. This article describes the ways that the government has been carefully leaking information that could look favorable to the government while receiving all the information it can in different ways while the public is not looking. In the conclusion, the author simply questions how much Americans will take of the government’s actions to keep information secret and to surveillance the American people. The ultimate question for the Americans is “How much is too much?”

This article brings up the question of secrecy and surveillance of the American public. The class connects to this topic as the multiple people who were suspected to be terrorists could not be tried due to state secrecy and the loopholes the government has to be able to keep secrets from the American public. These actions exploded after the 9/11 event which kept the government on their toes for terrorists and have been investigating to weed out more and more suspected terrorists. This article shows how deep the government is investigating and the limited information that is given to the public from a democratic government.

I believe that this is a huge problem in the U.S. because the public and the government cannot seem to agree on a good medium to fight terrorism. Many people were terrified after 9/11 and that event was a huge wake-up call for many Americans. However, in result of that, many government actions have invaded American’s individual privacy for the sake of security as a nation. This causes many problems as some people feel that the government is doing too much surveillance on individuals and is taking some operations too far. In class, we’ve seen that there are many instances where the FBI or the CIA has pulled innocent people through extraordinary rendition and use state secrecy as a reason to dismiss cases, which makes me question the legality of the government and the aggressive actions of the government. Is this really what it takes for our country to be safe or is there another way? What does the American public value more: safety or privacy? I believe these questions are next for the American public to answer and must be answered quick.

http://justsecurity.org/16305/shhh-week-secrets/#more-16305

Court mulls secrecy of national security letters

The article, “Court mulls secrecy of national security letters,” in the Washington post discusses the legitimacy of the force-able request by the US government to companies and businesses to hand over personal data and information on the grounds of “National Security”.  These requests, also known as “Gag-orders” or National Security Letters (NSLs), are executed without any judicial oversight, and have aggravated the companies which receive them.

According to the government ,  such demands are absolutely necessary in order to safeguard national security and ignoring them would make the nation susceptible to terrorism and any other threats. These requests have been going on for years,however of recent, there has been a serious backlash by these which have received these requests. One reason is because of the recent disclosures of government surveillance and secondly, it is seen as very unconstitutional by courts and civil libertarians.

In my opinion, I think that national security is of great importance, however; there must be a strong consideration for both the constitution of the United States and civil liberties. There must not be an abuse of such powers and an infringement of individual rights. Thus, it is absolutely within the rights of these companies and entities to fight against these requests. In doing so, they must not be held accountable, but rather , the government itself must be.

In conclusion, It is my hope that google, yahoo, Microsoft, and facebook in conjunction with the unnamed company, win the case and have their say. Doing so sets the precedent that the government cannot do as it pleases and that the rule of law is in effect. Moreover, it establishes that the constitution of the United States is being adhered to.

See link here:

http://www.washingtonpost.com/national/court-mulls-secrecy-of-national-security-letters/2014/10/08/901a6024-4eba-11e4-877c-335b53ffe736_story.html

Questionable Legality of U.S. Bombings in Syria and Iraq

     In the Bloomberg View article "Obama Doesn't Want Your Approval for War," Noah Feldman--a columnist and professor of constitutional and international law--questions the legality of U.S. airstrikes in Iraq and Syria, especially the latter. Feldman problematizes this ongoing U.S. military action in the war against the Islamic State (which group the administration refers to as "ISIL"). Feldman asserts that the present U.S. military operations against this group violate international laws, and, moreover, lack the congressional support that the U.S. Constitution mandates in order to limit Executive power and avoid U.S. engagement in hostile activities abroad without the approval of the U.S. public. 

  Feldman examines the few vague justifications the Obama administration has offered, noting, too, that Congress has failed to provide any such justifications. The Authorization for Use of Military Force Against Iraq Resolution of 2002 (116 Stat. 1498 Public Law 107-243) provides that the President can "protect the national security of the United States against the threat posed by Iraq." However, as Feldman remarks, the Obama administration claims to be protecting Iraqi citizens from the threat of ISIL--not protecting the U.S. public from Iraq. "The 2001 authorization is less applicable still," Feldman argues: in this joint resolution (115 Stat. 224 Public Law 107-40), Congress authorized the President to "use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001." However, ISIL is unaffiliated with al-Qaeda, and certainly appears wholly uninvolved in attacks on the U.S. in 2001. 

     The last justification Feldman notes is to construe Article 2 of the Constitution in such a strong manner that the President, as commander in chief, has virtually limitless powers to protect the U.S. public. These latter powers include the president's ability to use military force in a case of self-defense without Congressional action, as, typically, it is the sole ability of Congress to declare war or engage in such hostilities. However, as per the War Powers Resolution (87 Stat. 555 Public Law 93-148), passed by Congress after the Vietnam War, the President must consult Congress, and moreover, acquire its explicit approval in order to engage in armed conflict; indeed, in cases of self-defensive emergency when the President deems it necessary to engage in warring activities without acquiring the approval of Congress, the President must still alert Congress immediately and acquire its ongoing approval after such engagement has begun--all of which processes have yet to occur despite ongoing attacks in Iraq and Syria. However, Feldman argues, this Constitutional Executive power does not apply because "the U.S. is not defending itself against [the group called] Islamic State in any meaningful sense." 

     Though Feldman believes these justifications erroneous, he proffers "two real possibilities" as to what the "Obama administration believe[s] authorizes its newest war;" both possibilities, he claims are "legally and morally preposterous." First, the Obama administration may believe "that if it is bombing from the air or pushing a button from afar--as in a drone strike or cyberattack--it isn't going to war and doesn't need legal justification." Feldman remarks that, though both laughable and disturbing, this sort of argument is not new, as in the case of recent bombings in Libya. Alternatively, the Obama administration may believe that its actions gain legitimacy from the above-mentioned authorizations in 2001 and 2002--however, as previously noted, these resolutions fail to address the current situation, as it involves neither al-Qaeda nor a threat posed by Iraq to the U.S. 

     Ultimately, Feldman finds this all critically important and disturbing because of the "dangerous precedent" this sort of Executive action may set. Though he acknowledges that Congress may implicitly support these Executive actions, a--even the--central function of the Congress is to act as a representative of the U.S. public. Though these military attacks in Iraq and Syria are certainly problematic in their own right, Feldman is more concerned that this unchecked Executive action represents a larger trajectory of departure from "the ideal of a republic that goes to war only when the public approves."

Postscript: The Obama administration and mainstream news media have recently been giving a lot of attention to a group of al-Qaeda operatives called "Khorasan" who, apparently, were also a target of U.S. bombings in Syria. With Feldman's article in mind, it is interesting to consider how Khorasan has--as an al-Qaeda-affiliated group--and, moreover, an "imminent threat to the United States" (according to the Associated Press), seems to provide legal justification for at least some of the bombings in Syria (in terms of the 2001 authorizations and the Constitutional self-defensive war power the Executive branch holds). These revelations regarding the Khorasan group are at least a little conspicuous in their convenience. More recently, the particular "imminence" of the threat held by the Khorasan group has been drawn into question by U.S. officials and news media. Murtaza Hussain, a journalist for The Intercept, has a compelling and deeply critical article on the legitimacy of this legal narrative called "The Fake Terror Threat Used to Justify Bombing Syria." In this article, he focuses on the ways in which the bombings violate International Law, a compounding set of issues that may render the discussion above even more concerning.

Judge Orders Release of Guantanamo Videotapes

According to an associated press writer, Ben Fox, U.S. District Court Judge, Gladys Kessler, ordered the CIA to release 28 videotapes that consist of the treatment performed towards the hunger strike of a Guantanamo prisoner, Abu Wa’el Dhiab. Dhiab’s lawyer, John Eisenberg, challenged force-feeding as an abusive treatment. Dhiab believes that these protocols must be acknowledged and by doing so, “these terrible practices will come to an end.” The order was basically made due to several public media requests. Fox explains that in order to avoid any sort of government appeal, the release of the videotapes will have to be audited for the “protection of the identities of Guantanamo Bay staff is a legitimate goal”. Fox also states that the Obama Administration is limiting the amount of information that would be released but Kessler points out that the court will not “disclose classified information over the government’s opposition” when it comes to dealing with detainees.

So, was it right for Kessler to order the release of these videotapes?  Several individuals actually agree with the release of these tapes such as attorney David Schultz. He agrees that the public has “the right to know what their government is up to”. With this stated, it is clear for Kessler to cite the First Amendment in order to "override the government's secrecy" for the U.S. have stopped the disclosure of the amount of hunger strikers in the Guantanamo prison. She states that the government’s reason for keeping such secrecy is “unacceptably vague, speculative…. And just plain implausible." Richard Butler, a former Navy commander, also states that force-feeding may even be used to instigate “anti-American sentiment”. On the other hand, Butler adds that if public videos of such medical interactions with guards and detainees were to be released, then, it could potentially worsen the public’s perception of those who are detained. Overall, Butler states that any public release about detainees, will serve as a “serious damage to national security".

In my opinion, it seems difficult to decide if Kessler had made the right decision due to the fact that if these videos were to be made public, just as Butler stated, they would potentially damage national security, but if these videos were audited prior to publicizing them and if the court will not publicize any sort of classified information about the government, wouldn’t it not pose as a threat to national security? It’s also difficult to decide if forced feeding violates Article 13 (this states that prisoners must be humanely treated) because it does cause pain and distress towards a detainee but does not qualify as ‘causing death or endangering the health of a prisoner’. I believe that releasing these videos would go both ways in which the public would either perceive that the government’s protocol in handling hunger strikes as inhumane or humane. One might agree with the government that these protocols are humane for it “protects the health of detainees” and in addition to that, these hunger strikes could be perceived as an ‘easy way out’ for the detainees. On the other hand, these protocols are harsh and painful which allows the public to argue that force-feeding is ‘inhumane’ treatment. To make some sort of progress, the government should reconsider to how these hunger strikes have come to light to avoid extreme protocols when dealing with hunger strikes in Guantanamo. 

Fox issues that more than half of the detainees have not had a fair trial for more than a decade. In class, we learned about the Fifth Amendment that states that every person has a right to due process. The deprivation of a fair trial for these detainees may be one of the key factors of the hunger strikes in Guantanamo. In addition to that, the absence of a free trial also violates Article 14. 

On a similar article, Charlie Savage states that Dhiab’s lawyers are “asking Judge Kessler to require the government to use less painful procedures… before he is at risk of serious bodily injuries." Even though the government portrays that these videos may cause ‘damages to the national security’, it is evidence that is needed to acknowledge and change the treatments that detainees are experiencing. 

http://www.nytimes.com/2014/10/04/us/judge-orders-disclosure-of-guantnamo-videos.html?_r=0

http://www.washingtonpost.com/politics/courts_law/judge-to-open-part-of-hearing-on-gitmo-prisoner/2014/10/02/16602200-4a91-11e4-a4bf-794ab74e90f0_story.html