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Terror Tuesday: Sovereignty and the law in the age of the forever war

Jalalabad, Afghanistan, seen from a DoD helicopter

"Just because I have a beard and wear a turban, does that make me part of the Taliban?"

Earlier this month, Ben Emmerson, the UN Special Rapporteur on Counterterrorism and Human Rights, traveled secretly to Pakistan to research the impact of US drone strikes. His trip was undertaken as part of a UN investigation into the use of drones announced last January.

The British attorney learned that not only do ordinary civilians and Taliban militants in North Waziristan wear similar clothing and favor beards. Both groups also normally carry guns, making them all potential targets for US 'signature strikes.'

The Pakistani government told him that it had confirmed at least 400 civilian deaths and that it did not condone the US drone program.

In a statement emailed by Emmerson to the Associated Press on March 15, the US Special Rapporteur asserted that officials in Pakistan "stated that reports of continuing tacit consent by Pakistan to the use of drones on its territory by any other State are false, and confirmed that a thorough search of Government records had revealed no indication of such consent having been given. Officials also pointed to public statements by Pakistan at the United Nations emphasizing this position and calling for an immediate end to the use of drones by any other State on the territory of Pakistan."

Emmerson went on to declare that the covert CIA drone program "involves the use of force on the territory of another state without its consent and is therefore a violation of Pakistan’s sovereignty."

This should be big news in the US, right? It might be, if international law and UN pronouncements mattered to the American public and government officials.

But it was barely a blip on the media screen.

The results of a Gallup poll conducted on March 20 and 21 – two weeks after Rand Paul’s filibuster – indicate that fewer than half of Americans support launching attacks against US citizens in other countries (41%) and at home (13%). But 65% support using drones against foreign suspected terrorists in other countries, and only 28% oppose such global 'targeted killing.'

In an effort to convey the terror of living under skies full of killer drones which could strike at any moment, Pitch Interactive has created this website.

However difficult it is today for Americans to put themselves in the shoes of foreigners who happen to live in countries which the US claims harbor threats to our 'national security,' it is no easier for them to conceive of a world in which other countries have claims to ‘sovereignty’ which the US must respect.

The notion that the US (or other so-called 'enlightened states') can decide when to violate the sovereignty of other countries has a long history, as Noam Chomsky explained back in 1999.

But now that the US is routinely operating across national borders on an ever enlarging and fluid global battlefield, the matter of ‘sovereignty’ is barely a consideration, and international law means what the US says it does. Induce a feeble government like that of Yemen to go along with the CIA/JSOC game plan, and you are all set.

However, as the wall of secrecy surrounding the kill program crumbles, the 'blowback' engendered among the populations at its receiving end must sooner or later be recognized – and reckoned with.

In the words of General James Cartwright, a former vice chair of the Joint Chiefs of Staff and Obama adviser, "If you’re trying to kill your way to a solution, no matter how precise you are, you’re going to upset people even if they’re not targeted."

The American public may still be on board with the drone program as long as it kills foreigners, but, as The New York Times points out, the Obama Administration faces a big problem "in trying too institutionalize a program that national security officials believe will be at the center of American warfare for years to come, while placating a growing chorus of critics challenging the targeted killing program on legal, moral and practical grounds."

Those critics include Members of Congress demanding (and being promised by the President) more transparency. One of plans being mulled over by the White House – transferring responsibility for more (but not all) of the lethal strikes from the CIA to Joint Special Operations Command – would not necessarily provide it, according to Naureen Shah of the Columbia Law School’s Counterterrorism and Human Rights Project.

She told the Times, "We know JSOC is far more secretive than the CIA, and that Congressional oversight is weaker." In her view, this 'CIA out of drones' story could represent a "shortcut by the administration, an effort to deflect criticism of the drone program without directly answering that criticism."

Another effort to deflect criticism while keeping American prerogatives intact got headlines over the past few days when, after a long stalemate and complaints from President Hamid Karzai that the US was intent on violating Afghan sovereignty, Bagram Prison was officially transferred to the Afghan government.

Since last March, some 4,000 prisoners in what is now called the Afghan National Detention Facility at Parwan have been handed over to Afghan control. Over a thousand of them were subsequently freed.

The US refused to transfer about 50 prisoners whom it considered 'especially dangerous' and insisted should be indefinitely detained without charges or trials. It was unmoved by a September 17, 2012 ruling by a judicial panel in Afghanistan that holding detainees indefinitely in this way violated the law and constitution.

So has this matter finally been laid to rest? It is not clear. The BBC reported that about 50 prisoners will remain in US hands, while, according to today's The New York Times, the US has received "private assurances" that Afghanistan will not release "enduring security threats."

That could mean that the prison will continue to function as "the other Guantanamo" for some time to come.

As for the prison at Guantanamo Bay – which the post revolution Cuban government considers "occupied territory" and a violation of Cuban sovereignty – there are new signs that it will not be closed anytime soon. At a time of budget cuts, the military requested nearly $200 million to renovate what was supposed to be a temporary facility.

In the words of Ret. Col. Morris Davis, the former chief prosecutor of Guantanamo’s military commission, the detainees “are getting older — they’ve been there 10 or 11 years, and some of them are beginning to get into that geriatric medical state that Gitmo wasn’t really equipped to handle.

So it’s really interesting to me, you have the fiscal conservatives here that are trying to pass a budget with drastic cuts, but here we have Guantanamo, where they want to spend $120 million a year to keep, in essence, 80 guys that we really want to keep incarcerated and $150 million on top of that, so in a few years that adds up to a considerable amount of money. Now they’re talking about de-funding NPR, and I mean the NPR’s budget you could find for a couple of decades based on what we’re spending in Gitmo.

He was not surprised to hear that the prisoners had again resorted to a hunger strike:

I don’t know — apparently they had hope and change in mind as well when President Obama took office, and I guess they’ve been just as disillusioned as a lot of us that bought into that slogan as well.

But here you have a majority of the men at Guantanamo …who have been in confinement now for more than a decade in some cases. So to them, with the hunger strike, they’re kind of out of sight out of mind and the only way to potentially call attention to it is to do something drastic like a hunger strike. So the numbers — DoD has said the numbers have gone from seven to 14 to 21, to I believe 25 is the last official number. But if you talk to some of the attorneys that have been down there, they say that’s a low-ball figure, that it’s probably three or four times that.

The military says that eight of the men are being force-fed while being strapped to a restraint chair. Again, the number could be far higher.

Around the country Witness Against Torture members are staging a solidarity hunger strike between March 24 and March 30.

See their website for actions you can take to ensure that Guantanamo detainees – 86 of whom have been cleared for release as long ago as 2009 – do not spend the rest of their lives in indefinite detention 'out of sight out of mind.'

© 2021 ACLU of Massachusetts.