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Terror Tuesday: “Moral high ground” or slippery slope?

Speaking before the United Nations today in the wake of ongoing anti-American demonstrations that have to date resulted in at least 40 deaths, President Obama did his rhetorical best to lay claim to the moral high ground.

“So much attention in our world turns to what divides us,” he declared. “That’s what we see on the news. That’s what consumes our political debates. But when you strip it all away, people everywhere long for the freedom to determine their destiny; the dignity that comes with work; the comfort that comes with faith; and the justice that exists when governments serve their people — and not the other way around.

“The United States of America will always stand up for these aspirations, for our own people and for people all across the world. That was our founding purpose. That is what our history shows.”

In the middle of a presidential campaign, he had to weigh his phrases carefully, and discard those that his political rivals might be quick to re-package as damaging “apologies” or too redolent of compromise to be worthy of a commander-in-chief.

One thing he does not have to worry about: being held accountable by the home crowd for any transgressions to the “Rule of Law.”

Yesterday, a high level meeting on the “Rule of Law” kicked off the gathering of 120 presidents, prime ministers, kings and other officials in New York, with UN Secretary-General Ban Ki-moon expressing the hope that it will send “a strong signal to the world’s people that they are serious about establishing well-functioning institutions and delivering justice.”

What exactly does the UN mean by the term? In its official documents, it uses this definition of the Rule of Law put forward by then-Secretary General Kofi Annan in 2004:

It refers to a principle of governance in which all persons, institutions and entities, public and private, including the State itself, are accountable to laws that are publicly promulgated, equally enforced and independently adjudicated, and which are consistent with the international human rights norms and standards. It requires, as well, measures to ensure adherence to the principles of supremacy of law…accountability to the law, fairness in the application of the law…avoidance of arbitrariness and procedural and legal transparency.

President Obama put in a plug for the Rule of Law in his General Assembly address.

“True democracy,” he stated, “depends on the freedom of citizens to speak their minds and assemble without fear, and on the rule of law and due process that guarantees the rights of all people.”

The following actions undertaken in the weeks leading up to the “Rule of Law” meeting underscore the divergence between presidential rhetoric and US policy and practice.

Afghanistan attempts to resist US pressure to adopt indefinite detention

On September 17, a judicial panel in Afghanistan ruled that holding detainees indefinitely without charges or trial violated the law and constitution.

The refusal of Afghan officials to agree to adopt indefinite detention for a group of 30 or so long-term Bagram detainees has delayed the handover of the prison to full Afghan control.

Pressure on the Obama Administration to change its indefinite detention policy was ramped up when, on September 24, lawyers for three men imprisoned for a decade in Afghanistan announced they were seeking to bring their cases to the US federal court system.

The three Bagram detainees, who are not Afghan citizens and were not captured on a battlefield, had seemed poised to be able to challenge their detention in a US court when, in 2009, a federal judge ruled that some prisoners in Afghanistan who were not taking part in fighting did indeed have habeas corpus rights.

The Obama Administration immediately appealed this ruling to the Court of Appeals for the DC Circuit, receiving plaudits from former Bush Administration officials and Senator Lindsey Graham for doing so. In 2010, the appeals court declared that unlike Guantanamo prisoners, Bagram detainees did not have the right to challenge their detention in US courts.

Now the federal courts are being asked to look again at certain Bagram cases because of “new information” that has come to light – including a letter from President Hamid Karzai’s chief of staff stating that Afghanistan “favors these individuals having access to a fair judicial process, and adjudication of their case by a competent court.”

Will the Obama Administration be prepared to go to the mat to block access to “a fair judicial process”?

High court in Italy holds CIA accountable for rendition kidnapping

On September 19, after a trial lasting more than three years, US Air Force Col. Joseph Romano and 22 American CIA agents had their in absentia convictions upheld by Italy’s highest criminal court.

They were found guilty of kidnapping Osama Moustafa Hassan Nasr from a Milan street and sending him to Egypt to be tortured. Magistrate Armando Spataro said that extraordinary rendition had been found “incompatible with democracy” and that the court would ask the Italian government to request the extradition of the convicted Americans.

While extradition seems highly unlikely, the Italian ruling will at the very least influence travel plans for 23 Americans in the years to come.

Detainee recommended for release on four occasions dies in Guantanamo

Adnan Farhan Abdul Latif, who was transferred to Guantanamo soon after the prison opened for business in January 2002, was found dead in his cell on September 8.

Marc Falkoff, his defense attorney, writes that “it’s hard to say exactly what the US military thought Adnan had done. Over the years, the government made allegations and then abandoned them.”

They accused him of being associated somehow with al Qaeda but later dropped that accusation. Then they said he was associated somehow with the Taliban, but could not produce reliable evidence at his 2010 habeas hearing before US District Judge Henry Kennedy. The judge ordered his release.

By this time the military had already cleared him for release on three separate occasions.

In Falkoff’s words, “The real shock was that Obama chose to appeal the district court’s order to release a prisoner whom his own task force had (privately) already designated for transfer home. Why the appeal?…The president’s challenge went to the Court of Appeals for the DC Circuit, which had been openly hostile to claims from war on terror detainees and which had been reversed in Guantanamo cases three times in the last decade by the Supreme Court.”

The appeals court by 2-1 threw out Judge Kennedy’s ruling. This time the Supreme Court refused to review its action.

“We don’t yet know how Adnan died,” Falkoff writes, “but I wouldn’t be surprised to learn it was by his own hand. He had sought release from Guantanamo by attempting suicide several times before.

“It’s also possible his death was caused by the cumulative effect of a decade’s worth of intermittent hunger strikes, which were his only way to protest the injustice of his indefinite detention and the harshness of his treatment at Guantanamo.

“Either way, his death was caused by his detention.”

Two weeks after Latif’s death, the Obama Administration reversed itself and disclosed the names of the 55 detainees who had been cleared for release from Guantanamo but continued to be held, in some cases for many years. The Administration said it had kept the names secret “to maintain flexibility in its diplomatic engagements with foreign governments on potential detainee transfers.”

Will this development speed up transfers or merely compound feelings of desperation as detainees who have been given a glimmer of hope of obtaining freedom remain, like Adnan Latif, buried alive for years to come?

Obama can’t put “Terror Tuesday” behind him

Shortly before President Obama addressed world leaders whose populations were increasingly opposed to his “Terror Tuesday” kill lists and drone strikes, a report compiled by Stanford and New York University law professors revealed that only about 2 percent of drone casualties are top militant leaders.

Living Under Drones: Death, Injury and Trauma to Civilians from US Drone Practices in Pakistan states that there have been some 3,000 drone strikes in Pakistan alone since 2010. The strikes have “terrorized” civilians night and day and killed hundreds of them, including rescuers who rush to the scene.

President Obama’s words must seem bitter indeed to civilians who cannot “assemble without fear,” and have no access to “the rule of law and due process that guarantees the rights of all people.”

As the ACLU battles in the US Court of Appeals for the DC Circuit to obtain documents relating to the drone strikes, some judges have expressed skepticism about the CIA’s refusal to confirm or deny that the records – and the program itself – even exist.

As much as the CIA might shun the exposure, but this matter is not going away. Just one month ago, the US Special Rapporteur on Human Rights warned the Obama Administration that the issue will “remain at the top of the UN political agenda until some consensus and transparency has been achieved.”

Increasingly, even voices in the national security field are recognizing that the US can’t kill at will outside war zones and at the same time lay claim to the rule of law.

In the words of Marisa Porges, a former counterterrorism advisor to the Defense Department, “Rather than shooting people, we should be exercising due process, and bringing transnational terrorists to justice. That’s an approach that would help America maintain the moral high ground in the ongoing fight against Al Qaeda.”

© 2021 ACLU of Massachusetts.