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

The American (Double) Standard

Recently, the American people have been shocked by the Islamic State’s videos of their beheading journalists. We have empathized with the grieving families in an outcry for justice. According to some, ISIS is made up of terrorists, criminals, even barbarians, causing chaos and destruction in a place far removed from our day-to-day reality… but what if these words may be used to describe our own home government? What if the very organizations we empower to represent us are guilty of similar atrocities? An August 28 Washington Post article reporting on the use of waterboarding by both U.S. officials and ISIS raises these questions.

According to sources who spoke with the press under the condition of anonymity, at least four ISIS hostages were waterboarded in the same manner described by CIA prisoners: they were tied to surfaces and made to feel as if they were drowning, as a result of water repeatedly being poured over their faces. James Foley, an American journalist who was beheaded in a video released in August, was among the victims of ISIS waterboarding.

Now, waterboarding does have a history that precedes the United States. It would be difficult to prove any direct influence American waterboarding had in ISIS’s use of waterboarding – there may be a relationship of correlation between the two rather than one of causation. Also, the argument may be made that ISIS’s use of waterboarding was against innocents for the purpose of intimidation, whereas the CIA employed waterboarding as an interrogation strategy intended to prevent future violence by terrorists; however, the United Nations Convention against Torture does not make a distinction based on motivation: “torture means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.” According to the Washington Post article, the Senate Intelligence Committee holds that waterboarding is not an effective interrogation technique. Is it torture though?  The UN Convention indicates yes, and President Obama affirmed that the U.S. would hold itself to the same standard when he explicitly outlawed waterboarding upon inauguration.

Is there a perceived difference in waterboarding as employed by ISIS and waterboarding as employed by the CIA? If so, it is not a justified perception. If the United States feels responsibility for avenging these reporters’ murders, the nation needs also take responsibility for the consequences of its own crimes.

What Do We Do With ISIS Prisoners?

      Jim Stein asks an important question in the Newsweek article: What Will US Forces Do With ISIS Prisoners? Stein critically examines the current policy or lack thereof that the U.S. is taking to preempt issues with ISIS detainees. The Pentagon currently claims no policy as for what to do with any potential prisoners of war from ISIS. Essentially, the White House is turning to Iraq to take the lead on the war against the Islamic State. It appears that the U.S. will just be acting as the ‘brawn’.  According to the Newsweek article, it is currently unclear where the U.S. stands on how involved they will be in this war. Though the U.S. theoretically has a “no-combat-boots on the ground” policy, it is now widely known that American forces did try to save James Foley. The country’s position is “confusing and contradictory.”

Similar to the its behavior post-9/11, the U.S. is preparing to retaliate against ‘the enemy’ without preparing for long-term repercussions such as detaining prisoners. If the U.S. doesn’t form a policy for holding ISIS prisoners there will be another Guantanamo situation, or worse, another Abu Ghraib tragedy. Stein points out the glaring issue: How will the U.S. be able to eventually put the prisoners on trial if intelligence is gathered through Iraqi torture, even if it is not directly at the hands of the U.S.? Stein proposes killing ISIS leaders and top lieutenants via drone strike rather than capturing and interrogating lower level ISIS members.

Wittes contests on the Law Fare blog that if the U.S. only participates in drone strikes they will not be in engaging in the capture of ISIS troops. Wittes also suggests that Iraqi forces will take responsibility for the prisoners and the U.S. will have to look the other way. He states that there should only be concern if the U.S. increases their ground mission and transfers any detainees to Iraqi forces.

Jonathon Horowitz responds to Wittes’ comments on the Just Security blog site, claiming Wittes minimized several issues of Stein’s Newsweek article. He criticizes Wittes’ statement that the U.S. needs only to “look the other way as abuse of captives take place that our forces would not tolerate.” Horowitz explains how the Leahy Law asserts that the U.S. cannot offer assistance to states that have violated certain human rights (including torture) even in the most extreme situations. Other issues also arise with joint-interrogation and the non-refoulement principle, also referred to as the extradition process. The Convention Against Torture prohibits states from extraditing a person to another state where there is reason to believe the person could be tortured. Horowitz finishes his post by warning against making the same mistakes from Afghanistan and Iraq, urging people not to dismiss the issues discussed in Stein’s article, and to be prepared for the possibility of more ISIS detainees.

I think that Horowitz is appropriately concerned about the foreseeable future of the U.S.’s role in detaining ISIS members. We have discussed in class the legal repercussions the U.S. could face after the treatment Al Qaeda-related detainees at the hands indirectly or directly of the U.S. This issue reaches further than just a human rights violation because there are now an unknown number of detainees that won’t be put on trial and can’t be released in the U.S. or their own countries. Trials can’t be conducted because the U.S. can’t use evidence gathered by means of torture, nor will the U.S. engage in trials that could potentially endanger national security. Stein and Horowitz state that the same issue will occur with ISIS. Wittes predicts that it won’t come to this because the U.S. isn’t involved in the ground fight and will leave detention to Iraq. However, this claim is naïve as the U.S. is very involved with ISIS detainees because of their investment in defeating ISIS. It is very likely that the U.S. will become more involved in the interrogations, and by allowing Iraq to take charge in interrogation the U.S. will be violating the Leahy Law and Convention Against Torture act as Horowitz discussed. The U.S. is aiding the Iraq forces with ISIS, but it could be argued that the U.S. is actually working alongside Iraq for a common goal. However, the U.S. is aware of Iraq’s interrogation methods and is still turning to Iraq for interrogation. These potential or even current issues have been identified. It is now the United State’s responsibility to develop a lawful and practical approach to detain prisoners.

           

http://www.newsweek.com/what-will-us-forces-do-isis-prisoners-271850

http://www.lawfareblog.com/2014/09/are-we-facing-an-isis-detention-mess/

http://justsecurity.org/15513/time-detentions-response-benjamin-wittes/#more-15513