I know it’s probably easy for Obama supporters, if not members of the Administration, to dismiss the warnings of lawyers who fought within the Bush Administration to cloak our counterterrorism policy in legal sanction as trolling.
I have been warning for several years about the international legal risks posed by the Obama Administration’s heavy reliance on drone strikes, including my Post op-ed in October 2011 entitled “Will Drone Strikes Become Obama’s Guantanamo?” This article was not intended as partisan criticism but rather as a cautionary note, based on my own eight years of experience explaining US counter-terrorism policies.
At the time I wrote it, I thought there was perhaps only a 25% chance that Obama’s drone strikes would become as internationally maligned as Guantanamo, given the preference of human rights groups and European governments to avoid criticising the Obama Administration. But over the last eighteen months, I have seen a crescendo in international criticism, resulting in lawsuits in the US, Britain, and Pakistan, and a potential decrease in intelligence cooperation. This has echoes of the rapid decline in European governmental support for US counterterrorism efforts after 9-11 as national parliaments pressed their governments to distance themselves from unpopular US policies. I would not be surprised if, in the next year, war crimes charges are brought against senior Obama officials in a European country with a universal jurisdiction law. The Administration is increasingly on the back foot internationally in explaining and defending the legal aspects of the drone program. It needs to step up its efforts.
These are not starry-eyed hippies. They’re solidly conservative lawyers. And yet it seems their warnings are being treated with the seriousness they would if I had made them.
One more point. As I traced last year, the White House’s unusual efforts to keep all mention of the “Gloves Come Off” Memorandum of Notification that authorizes many of these counterterrorism programs mapped closely to the exposure of Binyam Mohammed’s torture through an effort very nearly parallel to the suit Bellinger discusses in his post: Noor Khan’s suit against the UK for cooperating in the drone strike that killed his father.
The UK has used various strategies to try to hide its role in US covert operations: effectively a Glomar in this case, and a larger effort to create a secret court to hide our counterterrorism programs.
Maybe these British efforts will work. Maybe this particular ally will succeed in hiding the things we work hard to hide.
But not all of them will be.
The Administration seems increasingly committed to claiming all of this was a covert op, immune even from full disclosure to the Intelligence Committees, to say nothing of ordinary citizens. Perhaps it is so committed in an effort to avoid embarrassing our allies like this.
But it’s not fooling anyone.
SCOTUS just declined to take the Jeppesen Dataplan suit.
The high court rejected an appeal by five men who claimed that U.S. operatives—with support from Jeppesen Dataplan Inc., a Boeing unit—abducted them and sent them to other countries where they were tortured. They alleged Jeppesen provided critical flight planning and logistical support to the CIA’s “extraordinary rendition” program. The men were seeking unspecified monetary damages from the company.
This effectively means that men like Binyam Mohamed, who the Brits have admitted was tortured after being rendered, cannot sue for redress. And the ruling is particularly egregious since a Jeppesen executive admitted that his company was flying rendition flights.
In effect, SCOTUS’ decision not to take this case leaves in place state secrets precedent that allows the government to commit grave crimes, but hide behind state secrets.
Update: The Brennan Center and a bunch of other crazy hippies who believe in rule of law wrote a letter in response to SCOTUS’ decision to DOJ reminding them that, per their purported state secrets policy, credible allegations of wrong-doing must be referred to the Inspectors General of the relevant agencies for investigation.
In December of last year, the undersigned groups and individuals wrote to inquire whether the Department of Justice had referred to the Inspectors General (IG) of the Defense Department, the Central Intelligence Agency, the Department of Justice, or any other department or agency allegations arising out of the government’s extraordinary rendition program detailed in several recently dismissed civil complaints—a referral required by the Department of Justice’s policy on the use of the state secrets privilege issued on September 23, 2009 (hereinafter “the September 23 policy”). As we have received no response to that letter, and today’s Supreme Court decision makes it highly unlikely that any examination of the issue will take place in the courts, we submit this open letter posing the same question.
If the required referrals have not yet been made, we respectfully request that you now ask the relevant IGs to undertake a joint investigation into the Executive’s use of extraordinary rendition and to issue a public report—with as little redaction as possible—of their findings. Should the IG investigation uncover government wrongdoing, we also urge that plaintiffs’ legitimate claims be acknowledged and redressed—that the government vindicate their claims by recognizing the ordeals they endured and denouncing any wrongdoing; by issuing a public apology; by providing monetary compensation; and through any other means that justice requires.
Consequently, we believe that a thorough investigation—conducted by all relevant Inspectors General with full access to all relevant witnesses, documents, tapes, photographs, and other material, and culminating in a public report—would serve the interests of justice, and would accord with the September 23 policy’s aspiration to “provide greater accountability and reliability in the invocation of the state secrets privilege.” Moreover, where government wrongdoing is uncovered, providing plaintiffs appropriate redress could at least grant some small measure of recompense for the denial of these plaintiffs’ day in court.
This is me officially holding my breath for the Obama Administration to do what they promised on this front.