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Terror Tuesday: Pop! Go the secrets

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Above: September 2011, President Obama defends the killing of US citizen Anwar al Aulaqi absent due process. "Just trust us; he was really, really bad," seems to be the message. You may not mind that the government killed Aulaqi, but what about his 16 year old son? What about other people who are simply accused, and have no opportunity to defend themselves?

Secrets cannot be bottled up in the dark forever. Today, some stunning secrets that both the Obama and Bush Administrations hoped would never see the light of day are fizzing out of their containers.

The question we now face is this: what, if anything, will we the people – and our elected representatives – do about them?

Targeting Americans for Death

Who can fail to be shocked by the Justice Department white paper that was leaked to Michael Isikoff at NBC News?

The 16-page document – entitled "Lawfulness of a Lethal Operation Directed Against a US Citizen who is a Senior Operational Leader of Al-Qaida or An Associated Force" – appears to be a summary of the 50-page legal memo which the ACLU has tried (so far in vain) to extract from the Justice Department.

Much of its language is in line with the statements that various Obama Administration officials have made to justify its "targeted killing" policy. Yes, American citizens have rights under the Due Process Clause of the Fourth Amendment, but those rights "must be balanced against the United States’ interest in forestalling the threat of violence and death to other Americans that arises from an individual who is a senior operational leader of al-Q’aida or an associated force of al-Qa’ida and who is engaged in plotting against the United States…A use of force under such circumstances would be justified as an act of national self-defense."

Fair enough, you may think. But then things get slippery. What does it take to make this determination that a US individual can be targeted for death? It takes "an informed, high-level official" who judges that person to be a "continuing" threat to the country even, it turns out, if that threat isn’t really "imminent" (in the usual sense of the word), if capture may be "feasible" (as the word is usually defined) and the person has never be charged with a crime.

How is "imminent" construed in the white paper? It turns out to mean anything "a decision maker" wants it to mean:

The threat posed by al-Qa’ida and its associated forces demands a broader concept of imminence in judging when a person continually planning terror attacks presents an imminent threat, making the use of force appropriate…a decision maker determining whether an al-Qa’ida operational leader presents an imminent threat…must take into account that certain members of al-Qa’ida (including any potential target of lethal force) are continually plotting attacks against the United States…that the US government may not be aware of all al-Qa’ida plots as they are developing and thus cannot be confident that none is about to occur; and that, in light of these predicates, the nation may have a limited window of opportunity within which to strike…

It’s not just "imminence" that has been re-defined to mean anything the “decision maker” finds to be convenient. The same goes for "feasibility": "a capture would not be feasible if it could not be physically effectuated during the relevant window of opportunity." And killing would also be justified if an attempt to capture the targeted person would pose an “undue risk” (whatever that means) to US personnel.

What’s more, the courts cannot be in the business of double guessing the executive branch, either before or after the fact. "There exists no appropriate judicial forum to evaluate these constitutional considerations."

So it appears that Steve Colbert almost hit the nail on the head when he spoofed Attorney General Holder last March: "Trial by jury, trial by fire, rock, paper, scissors, who cares! Due process just means there is a process you do! The current process is the President meets with his advisors and decides whom he should kill–and then he kills them."

The white paper suggests Colbert should have said: "the President or another informed, high-level official."

This is the document that members of the Senate Intelligence and Judiciary Committees have sat on since last June. If they took it in stride, the public has not: have a look the voluminous public comments on Michael Isikoff’s piece.

Most are in this vein:

"Wow…….speechless! THIS is the US?????????"

"This should frighten EVERY American citizen."

"I’m amazed that the word ‘imminent’ here has nothing to do with the definition of the word imminent. Sounds like Orwellian double-speak to me."

"This is illegal. Why in the world do we have a judicial system? How can the government murder an American citizen without due process or prosecution?"

"No judge, no jury, and no worries about any innocents that may be in the way."

Making the world complicit in rendition and torture

We have the Open Society Justice Initiative to thank for revealing information about post 9/11 ‘war on terror’ practices that both the Bush and Obama Administrations have worked hard to bury.

Its newly released report, Globalizing Torture: CIA Secret Detention and Extraordinary Rendition, provides a wealth of detail about the complicity of 54 foreign governments in the CIA’s rendition and torture programs, and what happened to 136 known victims.

Although the Bush Administration was responsible for most of the horrors outlined in the report, Globalizing Torture points out that the Obama Administration did not end extraordinary rendition, but instead relied on assurances by foreign governments that they would not torture detainees.

In the words of the report:

By engaging in torture and other abuses associated with secret detention and extraordinary rendition, the US government violated domestic and international law, thereby diminishing its moral standing and eroding support for its counterterrorism efforts world wide as these abuses came to light. By enlisting the participation of dozens of foreign governments in these violations, the United States further undermined longstanding human rights protections enshrined in international law – including, in particular, the norm against torture.

Governments may think otherwise, but secrecy will not for long prevail:

Despite the efforts of the United States and its partner governments to withhold the truth about past and ongoing abuses, information relating to these abuses will continue to find its way into the public domain.

Secrecy vs. accountability

The US has long attempted to keep its extraordinary rendition program under wraps and has shunned any moves toward accountability. Will the Globalizing Torture help turn the tide?

There have been some notable efforts to hold officials responsible for participating in the program. A decade after the Muslim cleric known as Abu Omer was abducted from a Milan street and taken to Egypt to be tortured, a Milan appeals court has convicted three Americans in absentia for their role in his "extraordinary rendition."

On February 1, the court sentenced Jeff Castelli, the former CIA station chief in Rome, to seven years in jail, and two other former US officials – Betnie Medero and Ralph Russomando – to six years. The three men had previously been given diplomatic immunity in a trial that got underway in 2009 and resulted in the convictions of 23 other Americans. Those convictions were upheld by Italy’s highest court in September 2012.

This decision came six weeks after the unanimous ruling by the European Court of Human Rights on behalf of Khaled el-Masri , another victim of CIA-engineered rendition and torture. The country of Macedonia, where el-Masri was held incommunicado before being turned over to the CIA, was ordered to pay him $78,500.

But as this earlier Open Society Justice Initiative fact sheet reveals, although rendition victims from Sweden and Canada have received some compensation from their home governments, el-Masri’s efforts to pursue justice in Germany where he is citizen and in Spain where his rendition flight touched down have not survived US pressure.

The long-term damage that such pressure could inflict on countries that seek to exercise a measure of accountability for human rights abuses is now on display in the UK where final Parliamentary hearings are being held on the controversial Justice and Security bill. If passed in its current form, this legislation would permit American-style "secret evidence" to be introduced in British courts if the government believes "national security" would be harmed by making the evidence public. Such evidence could not been seen or challenged.

UK politicians were induced to craft this legislation after the UK Court of Appeal in February 2010 refused to heed warnings from the US and authorized the release of a previously secret summary of documents that the CIA shared with British intelligence on the treatment of rendition and torture victim Binyam Mohamed.

After that ruling, the US claimed that Britain could no longer be trusted with sensitive information.

A British resident, Mohamed had been rendered to Morocco where he was tortured and then transferred to Afghanistan where he was tortured some more, before being taken to Guantanamo where he spent the years 2004-2009. The suit he brought in the US with the help of the ACLU was thrown out by the Court of Appeals for the Ninth Circuit on "state secrets" grounds in September 2010.

In Britain, he was eventually awarded compensation of £1 million for being subjected to "cruel, inhuman and degrading treatment by US authorities" with the complicity of British intelligence. Other Guantanamo detainees who are residents of the UK have also received compensation.

But there is more to the story of UK-US complicity in "extraordinary rendition" and torture. One reason why the Justice and Security bill is on the agenda now is that Libyan victims of rendition are demanding their day in court.

The way post 9/11 "anti-terror" practices have been pressed into the service of shifting political aims is illustrated by what befell opponents of Gaddafi’s regime who were members of the Libyan Islamic Fighting Group.

These dissidents had been encouraged by the US and UK governments when Gaddafi was considered a rogue dictator in the 1990s through 2002. But when the Gaddafi came in from the cold, Abdel Hakim Belhaj, his wife Fatima Bouchar and Samir al-Saadi along with his wife and four young children were abducted in a CIA-MI6-Libyan operation and handed over to Libyan leader.

The treatment meted out to Belhaj and his wife – who spent time in a CIA ‘black site’ in Thailand – is documented here. After seven years Belhaj was released and led the battle for Tripoli in the Libyan revolution. He was subsequently offered money to drop a lawsuit which would force the intelligence service MI6 to appear in court. Samir al-Saadi received a £2.2 million payment from the British government which has refused to accept any liability for the torture that left him near death in 2011.

Files that were found during the revolution in the abandoned office of Gaddafi’s former intelligence chief include secret letters between MI6 and the CIA detailing rendition operations. This particular cat is now out of the bag.

But despite the Open Society Justice Initiative’s efforts, a mound of secrets remains behind closed doors and the US is determined that it stays there. If the Justice and Security bill is passed by the British Parliament, it may be used to keep information relating to Shaker Aamer’s detention in Guantanamo from reaching the public.

Aamer, a UK resident, remains at Guantanamo although he has been cleared for release. As 2012 drew to a close, his lawyers filed a lawsuit against Britain’s intelligence agencies alleging they gave US authorities statements they knew to be false about his alleged association with al Qaeda.

The authors of Globalizing Torture call on the US and countries that participated in illegal CIA-orchestrated activities "to own up to their responsibility…the taint of torture associated with secret detention and extraordinary rendition operations will continue to cling to the US and its partner governments as long as they fail to air the truth and hold their officials accountable."

We have a role to play in this process.

On February 7, the Senate Intelligence Committee will hold a confirmation hearing on John Brennan’s nomination to be head of the CIA. Brennan was complicit in President Bush’s torture program and has been a leading architect of President Obama’s targeted killing program.

In the words of Micah Zenko, "No politically appointed official in U.S. history has played such a prominent role in killing so many people outside of a war zone as John Brennan."

Call your US Senators immediately and tell them to oppose the Brennan appointment. For Massachusetts: call Senator Elizabeth Warren at 617 565-3170 or her Washington office, 202 224-4543; call recently-appointed Senator William ‘Mo’ Cowan at (former) Senator Kerry’s number: (202) 224-2742. Live outside Massachusetts? Find your Senators' contact info here.

The time has come for us to insist on the full truth about what has been and is being done in the name of “keeping America safe" and to demand accountability. If not now, when?

© 2021 ACLU of Massachusetts.