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The Sony Hack: Norms and North Korea

In statements on the Sony hack on Friday, both Secretary of State John Kerry and President Obama highlighted the need to develop norms for state behavior in cyberspace. Tying the need for norm development to a cyber attack that the FBI has attributed to North Korea may seem a bit paradoxical. North Korea has shown itself willing to violate non-cyber international norms and law (see examples here and here), so it’s hard to imagine it would have felt restrained by cyber norms. However, norm development may be important for building the case internationally for the legality of a U.S. response, and that response in turn can help to spur solidification of international norms that the United States seeks. Continue Reading »

Four New Guantánamo Transfers–and the Remaining Detainees

Via the Department of Defense and the inestimable Carol Rosenberg comes word of four new detainee transfers this morning–of Afghan detainees Shawali Khan, Khi Ali Gul, Abdul Ghani, and Mohammed Zahir (all of whom had been “cleared for release” years ago) back to Afghanistan. That brings the remaining detainee population at Guantánamo down to 132, 64 of whom have been cleared for release (55 of those 64 are Yemeni). And just in case we’ve lost track, below the fold I provide a breakdown by nationality of the remaining detainees (data derived from the New York Times‘ invaluable Guantánamo Docket): Continue Reading »

Recap of Recent Posts at Just Security (Dec 13-19)

I. Torture

A. Senate Intelligence Committee Torture Report

  1. David Luban, Why Do We Talk About Torture the Way We Do? (Monday, Dec. 15)
  2. Margo Schlanger, Guest Post: Intelligence Legalism and the Torture Report (Wednesday, Dec. 17)
  3. Steve Vladeck, The Torture Report and Korematsu‘s Shadow (Thursday, Dec. 18)
  4. John Sifton, Guest Post: Torture Is Still on the Table (Thursday, Dec. 18)
  5. Marty Lederman, Seriously? (Friday, Dec. 19)
  6. Beth Van Schaack, Not to Be Forgotten: The Case of Maher Arar (Friday, Dec. 19)

B. Accountability

  1. Jameel Jaffer, No Impunity for Torturers (Monday, Dec. 15)
  2. Ryan Goodman, Flashback — Ex-Bush Official, Col. Wilkerson: “I Am Willing to Testify” If Dick Cheney is Prosecuted for Torture (Thursday, Dec. 18)

II.  North Korea and Sony Hack

III. Authorizations for Use of Military Force (AUMFs)

  1. Ken Gude, Guest Post: The Unintended Consequences of the 2001 AUMF Sunset (Monday, Dec. 15)
  2. Ryan Goodman, The Washington Post Editorial Board’s (Mis)conception of Congress’s Role in War Authorizations (Tuesday, Dec. 16)

IV. Surveillance

  1. Julian Sanchez, The Cato Institute Surveillance Conference (Wednesday, Dec. 17)
  2. Patrick C. Toomey, Guest Post: In 2007, One Judge Said No to the NSA (Thursday, Dec. 18)

V. Detention & Trials

VI. Lethal Actions and Targeted Killings

VII. Congress-Executive Branch 

Not to be Forgotten: The Case of Maher Arar

In the midst of our ongoing coverage of the content of, and fall out from, the Senate Select Intelligence Committee Report, and debates about the obligation to devise some form of accountability and remedy for the harms inflicted in our collective name, this post offers a brief reminder of another case, not mentioned in the Report, that remains one of the great injustices of the “Global War on Terror”: that of Canadian-Syrian Maher Arar.

Detained by the United States on the basis of false and inaccurate information received from Canada as to his potential dangerousness, Arar was removed to Syria where he was tortured and held for more than a year in a grave-like cell. (Nathalie Weizman discusses the case briefly here). No charges were ever brought against Arar, and Canada eventually admitted that he was completely innocent of any wrongdoing. Canada paid upwards of $10 million in compensation for its role in Arar’s ordeal. The United States, which made the decision to remove him to Syria rather than Canada or Switzerland (his point of embarkation), has yet to formally admit wrongdoing, apologize, hold anyone responsible, or pay restitution. Time Magazine designated him as one of the 100 most influential people in 2007 with a profile written by Senator Patrick Leahy.

As this national conversation about next steps following the revelations in the Torture Report continues to unfold, the possibility of the United States issuing an apology and paying reparations for those wrongly detained and gravely mistreated should be given serious consideration.  Continue Reading »

Seriously?

At this late date, this surely doesn’t warrant (or deserve) a detailed response, especially since the President has repudiated it and it no longer represents the view of the government.

But for those of you who didn’t follow these things closely back in the last decade . . . no, there wasn’t much serious doubt that certain of the CIA interrogation techniques violated the law.  Waterboarding, in particular–the specific subject of Michael Mukasey’s column–violated the prohibition on “cruel treatment” in Common Article 3 of the Geneva Conventions* (which at the time was also a violation of the War Crimes Act), the federal assault statute, and, yes, the Torture Act.  At a minimum, waterboarding is designed to, and does, result in “severe physical suffering”–that’s the whole point of it, which is why it is a paradigmatic example of torture, understood as such for centuries by virtually everyone who has ever considered it.  (Mukasey does not even address the Torture Act’s prohibition on infliction of “severe physical suffering.”)  For much greater detail on this and related points about the CIA’s techniques and the law, see my posts here, hereherehere, and here, and David Luban’s post here.  Better still, read David’s wonderful new book (chapters 7 and 8, in particular).

________________________

* The Bush Administration avoided this conclusion by adopting the view that Common Article 3 did not apply to the armed conflict with al Qaeda–an argument the Supreme Court rejected in Hamdan.  As I speculated the morning of the decision, and as the SSCI Report recounts, the Hamdan decision therefore brought the CIA interrogation program to an abrupt halt.

News Roundup and Notes: December 19, 2014

Before the start of business, Just Security provides a curated summary of up-to-the-minute developments at home and abroad. Here’s today’s news. 

U.S.-CUBA RELATIONS

President Obama will use “broad executive power” to “defy Congress” and lift a number of restrictions against Cuba, including travel, commerce and financial activities, report Julie Hirschfeld Davis and Michael R. Gordon. [New York Times]

The Obama administration’s move to normalize relations “hit a familiar roadblock” in the response by the GOP, Lauren French explores the steps which a Republican-controlled Congress could take next year to limit Obama’s plan. [Politico]

The White House made an “unusual” move in disclosing the existence of key intelligence agent, Rolando Sarraff Trujillo, and giving details of specific cases he worked on. [Wall Street Journal’s Felicia Schwartz] Sarraff paid a “heavy cold war price,” with some of those involved in the “spy games” between the two countries now asking whether it was worth it, write Mark Mazzetti et al. [New York Times] Continue Reading »

Guest Post: Torture Is Still on the Table

The recent Senate Intelligence Committee’s report on CIA interrogations is a parade of horribles. Detainees by the dozen arrested wrongfully and later released, including innocent nobodies and even men with mental disabilities. Poorly vetted interrogators with disciplinary problems and financial conflicts of interest. Relatives held as hostages to gain leverage over targets. Incredibly shoddy intelligence analysis.

And worst of all, widespread torture, both authorized and not: extreme sleep deprivation and isolation, causing mental breakdowns. Exposure to extreme cold. Shackling in painful positions. Waterboarding. Confinement in coffins. Non-consensual, medically unnecessary “anal feeding” with a tube, legally constituting rape.

Since the report has come out, much media attention has focused on the CIA’s defenders, like former CIA director Michael Hayden and Vice President Dick Cheney, who have attempted to justify the CIA’s actions with self-contradicting claims about the program’s efficacy and legality. Notably, the primary wrongdoers implicated in the Senate report come from this same group of defenders: senior Bush administration officials who ordered the program and conspired to contort the law to evade it, along with senior CIA officers who carried out the tactics. Continue Reading »

In 2007, One Judge Said No to the NSA

Last week, the government quietly released a new cache of court filings and orders from late 2006 and early 2007 that together reveal a watershed moment in the government’s effort to secretly expand its authority to conduct surveillance on American soil—without ever asking Congress or the public. Instead, the government once again asked the Foreign Intelligence Surveillance Court (FISC) to belatedly bless certain aspects of the President’s Surveillance Program, which was initiated by President Bush without judicial or legislative approval in 2001.

In sealed court filings, the government urged the FISC to transform the carefully circumscribed surveillance regime laid out in the Foreign Intelligence Surveillance Act (FISA). The government’s proposal would have stretched FISA’s definition of a “facility” used by “foreign agents” to include telecommunications switches carrying huge amounts of Internet traffic, with low-level NSA analysts—rather than FISC judges—making individual determinations about whose communications traveling over those switches to target. But Judge Roger Vinson rejected the government’s attempt to rewrite the statute to permit warrantless surveillance inside the United States. When Judge Vinson refused to go along in April 2007, intelligence officials turned to Congress for new surveillance authority; the result was the Protect America Act and, ultimately, the FISA Amendments Act of 2008 (FAA).

The new documents tell us a great deal. They show, once again, how the government pursued extreme legal theories in one-sided and secret FISC proceedings, in order to avoid any public deliberation on the sweeping new surveillance powers intelligence officials were demanding. And they reinforce key points about surveillance that is occurring today under the FAA, including the government’s copying and scanning of huge amounts of Internet traffic in search of any reference to its targets. Here are several observations drawn from the newly disclosed FISC materials:  Continue Reading »

Flashback—Ex-Bush Official, Col. Wilkerson: “I am Willing to Testify” If Dick Cheney is Prosecuted for Torture

I was reminded yesterday of an interview on Democracy Now! with Colonel Lawrence Wilkerson (ret.) in 2011, in which he was asked about Vice President Dick Cheney’s recently released memoir. As many readers know, Col. Wilkerson was chief of staff to Secretary of State Colin Powell (2002-2005). What he said in 2011 is highly relevant today.

An excerpt of the interview (below) starts with a statement by Glenn Greenwald, which provides the context and is also important because Col. Wilkerson adds, “I agree with almost everything” Greenwald said. But the key line is Col. Wilkerson’s statement that he would be “willing to testify” against Cheney. Continue Reading »

The Torture Report and Korematsu‘s Shadow

Seventy years ago today–on Monday, December 18, 1944–the Supreme Court handed down its now-infamous decision in Korematsu v. United States, upholding the conviction of a Japanese American who refused to comply with exclusion and evacuation orders promulgated by General John DeWitt under the authority of President Roosevelt’s Executive Order 9066. Over at his eponymous blog, John Barrett has a great post up about yesterday‘s seventieth anniversary, since it was the day before Korematsu, on Sunday, December 17, 1944, that the U.S. government announced that it would be closing the internment camps as of January 2, 1945. As John writes, that announcement shows that “It was possible, and thus it is possible, for officials to wake up, to rethink, to change course, to improve behavior, to turn pages.  Even when officials act late, and even when they act in response to forces and developments that largely have forced their moves, such actions are the promise of self-government.” Given the events of the past week, the timing of this anniversary certainly seems fortuitous. Continue Reading »