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Terror Tuesday: Impunity surges in New Year

It’s only eight days into the New Year but already 2013 has seen some important milestones in the impunity stakes.

Six separate drone strikes in Pakistan have reportedly killed 35 people and lethal strikes have achieved an unprecedented intensity in Yemen, which was hit with five attacks over a ten day period beginning in late 2012.

This represents a ratcheting up of 'business as usual' for the Obama Administration, which has chosen to kill, not capture, terrorist suspects.

In the view of Michael Boyle, a former counter-terrorism adviser to candidate Obama, the President’s approach is dangerously counterproductive. Obama has "been just as ruthless and indifferent to the rule of law as his predecessor … while President Bush issued a call to arms to defend 'civilization' against the threat of terrorism, President Obama has waged his war on terror in the shadows, using drone strikes, special operations and sophisticated surveillance to fight a brutal covert war against al-Qaida and other Islamist networks."

The shadows ensure our acceptance – and ignorance. Who knew, for instance, that the US government has been outsourcing some of its targeted killings in Yemen to Saudi Arabia?

As Yemen-based journalist Iona Craig first reported in The Times (UK), a US Intelligence source has stated that "some of the so-called drone missions are actually Saudi Air Force missions." Former CIA official Bruce Riedel is quoted as saying, "We outsource this problem of Al-Qaeda in the Arab Peninsula (AQAP) to the Saudis, make it their problem. It is their problem."

I’d say it is also our problem, since outsourcing extra judicial executions is being done in our name and with our tax dollars.

How exactly does the process work? Does President Obama at "Terror Tuesday" meetings decide which targets to turn over to Saudi Arabia? Since the US and Saudi Arabia have not actually declared war on Yemen, what are the rules they play by? Or do they just make them up as they go along?

And what role is played by John Brennan, Obama’s nominee to head the CIA and the overseer of the Yemen front of the 'war on terror'?

According to The New York Times, Brennan is a man whom the President "trusts implicitly." Does that mean he trusted him when he misleadingly declared in 2011 that there had not been a "single collateral death" from drone strikes in Pakistan and that he is indifferent to allegations that Brennan was complicit in the CIA’s use of brutal interrogations during the Bush Administration – allegations that led him to withdraw his name from consideration to head the CIA in 2008?

Laura Murphy, the head of the ACLU’s Washington Office, has stated that "the Senate should not move forward with this nomination until all senators can assess the role of the CIA – and any role by Brennan himself – in torture, abuse, secret prisons, and extraordinary rendition during his past tenure at the CIA, as well as can review the legal authorities for the targeted killing program that he has overseen in his current position. This nomination is too important to proceed without the Senate first knowing what happened during Brennan's tenures at the CIA and the White House, and whether all of his conduct was within the law."

But the shadows are unlikely to part anytime soon. In fact, they are deepening, thanks to two other milestones reached in the infancy of the New Year.

John Kiriakou, a former CIA operative, has taken a plea bargain and will be going to prison – not for engaging in torture, but for blowing the whistle on waterboarding and other harsh CIA interrogation practices and in the process, disclosing classified information to a reporter.

In the words of another former CIA officer, Bruce Reidel, "To me, the irony of this whole thing is, very simply, that he’s going to be the only CIA officer to go to jail over torture…It’s deeply ironic under the Democratic president who ended torture."

It is also deeply ironic that he will be reporting to prison as the film 'Zero Dark Thirty' blankets cinemas and misleadingly implies that torture by the CIA led to the discovery of bin Laden’s hiding place.

You can help set the record straight by downloading this flyer and handing out copies before a showing of 'Zero Dark Thirty' at a theater near you.

Someone who has been on the receiving end of torture is the Canadian Maher Arar, an innocent victim of US extraordinary rendition. Wondering why President Obama didn’t apply the same logic he used to shield CIA torturers from prosecution (we must look forward, not back) to the case of Kiriakou, Arar deplores Hollywood’s "fantasized utility of torture."

"The debate with respect to torture should not be about whether torture produces 'sound' or 'false' intelligence," Arar writes, "or whether torture is 'bad' or 'good' depending on who is practicing it: the debate should be about whether torture is moral or immoral."

Then there is the milestone pointing to the surreal legal landscape we now inhabit.

On January 2, federal Judge Colleen McMahon of the Southern District of New York struck down FOIA litigation brought by the ACLU and New York Times to force the government to disclose its legal justification for targeted killings, including specifically the killing of US citizens.

Judge McMahon issued her ruling without seeing the withheld documents. Her opinion suggests that we can no longer call ourselves a democracy in which the “right to know” is an essential part of self-government.

It is worth reading – and reflecting on – her words:

The FOIA requests here in issue implicate serious issues about the limits on the power of the Executive Branch under the Constitution and laws of the United States, and about whether we are indeed a nation of laws, not of men. The Administration has engaged in public discussion of the legality of targeted killing, even of citizens, but in cryptic and imprecise ways, generally without citing to any statute or court decision that justifies its conclusions. More fulsome disclosure of the legal reasoning on which the Administration relies to justify the targeted killing of individuals, including United States citizens, far from any recognizable ‘hot’ field of battle, would allow for intelligent discussion and assessment of a tactic that (like torture before it) remains hotly debated….

However, this Court is constrained by law, and under the law, I can only conclude that the Government has not violated FOIA by refusing to turn over the documents sought in the FOIA requests, and so cannot be compelled by this court of law to explain in detail the reasons why its actions do not violate the Constitution and laws of the United States. The Alice-in-Wonderland nature of this pronouncement is not lost on me; but after careful and extensive consideration, I find myself stuck in a paradoxical situation in which I cannot solve a problem because of contradictory constrains and rules – a veritable Catch-22. I can find no way around the thicket of laws and precedents that effectively allow the Executive Branch of our Government to proclaim as perfectly lawful certain actions that seem on their face incompatible with our Constitution and laws, while keeping the reasons for their conclusion secret.

Judge McMahon goes on to outline "legitimate reasons, historical and legal, to question the legality of killings unilaterally authorized by the Executive that take place otherwise than on a 'hot' field of battle." But she can do nothing more, she claims, to illuminate the issue.

So it seems that we as a nation have fallen down Alice’s rabbit hole and cannot question the Queen of Hearts when she proclaims: "Off with their heads!"

The ACLU and New York Times say they will appeal the judge’s ruling. But if the "thicket of laws and precedents" is as difficult to penetrate as Judge McMahon suggests, courts may well be content to let the Administration kill – even its own citizens – in the shadows.

© 2021 ACLU of Massachusetts.