ISIS war powers lawsuit update and backstory

Today, David Remes and Bruce Ackerman, the lawyers representing an army captain who is suing President Obama over the legality of the armed conflict against the Islamic State, filed a lengthy brief – the plaintiff’s opposition to the government’s motion to dismiss the case. In it, they seek to advance their arguments both that the captain, Nathan Michael Smith, has legal standing to bring the case, and that they are right on the merits that the ISIS war lacks proper and necessary Congressional authorization. They also filed an affidavit by several scholars of Islamic law and jihadi movements making the case that the split between core Al Qaeda and its former Iraq affiliate, which grew into ISIS, was older and deeper than the Obama administration acknowledges. I am embedding their brief below.

In Power Wars, Chapter 12 (“The Tug of War”), section 15 (“Extending the 9/11 War”), I reported out the backstory to how Obama came to embrace this controversial legal position. In the summer of 2014, before the U.S. started bombing ISIS, Obama’s White House Counsel, Neil Eggleston, and the then top-lawyer for the National Security Council, Brian Egan, and the rest of the interagency lawyers group developed two theories. They considered each to be viable but also to have its own downside. One was to treat the intervention as a new phase in the existing war Congress had authorized against the 9/11 perpetrators, which would solve the domestic legal problem but would likely be criticized as a stretch because ISIS and Al Qaeda were now at odds. (The argument was that the post-Osama bin Laden split between core Al Qaeda and ISIS into successor factions that were both still fighting the US, even if they were also at odds with each other, did not abrogate the US’s existing authority to keep fighting each.) The other was to treat it as a brand-new conflict, but then if Congress did not vote to authorize it within 60 days, it could set up a  repetition of the War Powers Resolution fiasco with Libya three years earlier.

When they presented this choice to Obama in a Situation Room meeting, portraying both theories as legally available or defensible options, Obama opted for the first theory, knowing he would be criticized for it. The decision to take that aggressive stance turned, as it often did in executive power deliberations in the Obama era, on the White House’s belief that Congress, in the Tea Party Republican era, was unable to function as a competent governing partner. Even though there was an emergency and Republicans were mostly all for getting more aggressive against Islamist terrorists in the Middle East, nobody thought that it was realistic to expect Congress — especially the GOP-controlled House — to move and vote on a new authorization to use military force before the War Powers Resolution’s 60-day clock would expire in October. So Obama went with the “ISIS war=Al Qaeda war” theory.

That was indeed controversial. Yale Law School’s Bruce Ackerman penned a column in The Atlantic last summer, a year into the conflict, saying its biggest casualty had been the Constitution because Obama, by waging the conflict with legitimate authorization, and Congress, by not bothering to assert its role, “threaten to destroy all serious restraints against open-ended war-making by the commander-in-chief.” He said a soldier deployed to wage the conflict could have legal standing to put the question before the Supreme Court; that led to the lawsuit by Captain Smith, an intelligence officer then stationed in Kuwait and engaged in the counter-ISIS campaign. Still, Congress has appropriated funds to fight ISIS in two annual cycles since then; DOJ argues that amounts to legislative ratification of Obama’s theory.

[Other stuff: Here is an amicus brief that Michael Glennon and the Constitution Project are seeking the court’s permission to file. It focuses on the War Powers Resolution’s “clear statement” rule. Here are previous NYT articles about the Obama administration’s legal theory that the White House needed no new grant of authority from Congress to go to war against ISIS because, they argued, the Islamic State was already covered by the 2001 AUMF against Al Qaeda (and by the 2002 AUMF against Saddam Hussein’s Iraq). And here is a NYT article about the filing of Captain Smith’s lawsuit, and about the government’s reply laying out its legal theory – enhanced by the notion that Congress, by appropriating funds for the conflict, has ratified it.]

Here’s the new brief:



Smith v Obama Plaintiff s Opposition to Motion to Dismiss (Text)

A FOIA lawsuit that brought to light large amounts of information about post-9/11 surveillance may be ending

Today, Judge Analisa Torres of the Southern District of New York issued a ruling in a Freedom of Information Act case brought by The New York Times and me. The case centered on various Justice Department inspector general reports about post-9/11 surveillance. The government had already made public a sizable amount of information due to this case, but we were fighting over whether some of the material it redacted should be uncovered. Judge Torres ruled against us. This could be the end of the case, or we might appeal. Either way, it seems like a good moment to hail the significant amounts of information this lawsuit brought into public light. Below I discuss in some detail what the documents were and link to them as well as some stories that they generated.

But first, I want to thank the NYT’s lawyer, David McCraw, and two NYT First Amendment Fellows — Victoria Baranetsky (2014) and Jeremy Kutner (2015) — for their hard work on the litigation. And I thank the government officials who chose to put out the significant portions of these documents that the executive branch decided to acquiesce to making public rather than fighting us over, even though we disagree that they were justified in redacting certain things.

Background: After Edward Snowden’s leaks, the government declassified many facts about surveillance and communications metadata collection/analysis — like, for instance, the existence of the Patriot Act bulk phone records collection program that was the subject of the first of his leaks that Glenn Greenwald and The Guardian chose to publish. The government did this because Snowden had disclosed a number of its capabilities, and it wanted to explain and defend itself, including discussing internal rules and oversight over those capabilities.

Seeking to leverage that wave of declassification, I filed a FOIA request — and later, with the NYT, this lawsuit — seeking inspector general reports on those topics. We sought disclosure of some reports that were entirely classified, as well as reprocessing and more fulsome release of reports that had previously been made public but in heavily redacted form.

The most important of these reports was a massive investigation by six agencies’ inspectors general into the post-9/11 Stellarwind warrantless wiretapping and bulk metadata collection program. The creation of this report had been mandated by Congress as part of the FISA Amendments Act of 2008, and it was kept entirely secret when completed in 2009. The famous “NSA IG report” leaked by Snowden and originally published by The Guardian (though the Washington Post had previously written about bits of it without publishing it) was an early draft of the NSA’s contribution to this much larger Stellarwind report, which DOJ oversaw. (Here’s a story about a partial revelation from that leak that I had the honor of co-writing with Jim Risen, who along with Eric Lichtblau broke the original warrantless wiretapping story.) But the Justice Department’s chapter turned out to contain many, many additional revelations about the history of that program.

Other reports covered the FBI’s involvement with the FISA Amendments Act warrantless wiretapping programs that grew out of Stellarwind, and its collection of phone data and other types of records using National Security Letters, “exigent” letters, and Section 215 of the Patriot Act.

The government produced these documents in large tranches over time, and in several cases went back and re-issued them with fewer redactions. Here are some news articles based on these documents:

In addition, significant details in my book Power Wars — especially “Chapter 4: Stellarwind (Surveillance 1928-2009)” and, to a lesser extent, “Chapter 11: Institutionalized (Surveillance 2009-2015)” — drew on the information these documents brought to light.

Here’s the documents:

Not bad for one lawsuit.

Q&A with the Pentagon about Battle Damage Assessments, the Law of War Manual, and Non-Combatants who Support the Enemy

Below, I publish a written Q&A between myself and the Pentagon about rules for targeting and battle damage assessments, including how civilians who provide support to a military force, and are killed in strikes aimed at that force, are counted.

Although I was addressing my questions to military lawyers, the exchange took place through Lt. Col. Valerie Henderson, a spokeswoman for the department, and she asked that its answers be attributed to her.

I was pursuing a theory about non-combatant deaths from airstrikes outside of conventional war zones that appears to be incorrect, so I do not see a general-readership news article here. But the exchange may nevertheless be of interest to scholars and specialists. In particular, note that the department is signaling that it may revise certain disputed sections of the Law of War Manual involving “assumption of risk” by civilians and proportionality analysis.

I am sincerely grateful to the Defense Department for taking the time to engage with me in such a detailed and serious way.

BUT FIRST, SOME BACKGROUND

When the Obama administration revealed the government’s official understanding of the scope of non-combatant deaths from airstrikes outside of conventional war zones — that is, drone strikes and other missile attacks in places like tribal Pakistan, Yemen, Somalia, and Libya — there was a broad reaction of puzzlement. The administration asserted that between 64 and 116 civilian bystanders had been killed in 473 such strikes between January 2009 and December 2015. But that seemed too low, based on what we think we know about such strikes. In particular, the entire low end of the range would seem to be eaten up by our understanding of civilian deaths caused by just two strikes: a December 2009 JSOC missile strike at an AQAP camp in Yemen that is believed to have killed 41 Bedouins from a tribe that turned out to be camped next door and was selling food to the terrorists, and a March 2011 CIA drone strike in Pakistan that killed between 26 and 48 people, most of whom are thought to have been villagers meeting to discuss a chromite mining dispute. [See Power Wars, Chapter Six (“Targeted Killings”), parts one (“Two Airstrikes in Yemen”) and ten (“Signature Strikes”).]

At the same time, I had been tracking a dispute over some of the targeting rules in the Pentagon’s new Law of War Manual, including complaints from various legal scholars that it appeared to improperly exclude various categories of civilians from being weighed in proportionality analysis by commanders considering a strike at a military target where civilians could be killed too, like civilians supporting a military force by working in a munitions plant. See this article about a recent revision to the manual addressing a controversial section about journalists in combat zones, and how it did not address the proportionality issues scholars were most concerned about.

These two storylines raised in my mind a possible explanation for the low end of the range of non-combatant deaths: perhaps, I speculated, Central Command had excluded the adult members of that Bedouin tribe killed in December 2009 from its count of non-combatant deaths outside war zones because the tribespeople had been providing support services to the enemy force and thus were being treated more like military contractors than innocent civilians? That approach would be controversial but at least it would make the low-end of the range understandable. That prompted me to ask some questions to the Defense Department, which the Office of the General Counsel preferred to answer in writing. I asked a follow-up round, and they replied again. Here is the exchange:

ROUND ONE FROM ME TO DOD:

I have some questions about how DOD defines civilian casualties during battle damage assessments in Centcom’s area of responsibility, which obviously may include JSOC in certain contexts. Would it be all right if I spoke to your top JAGs about them?

Context: The public discussion of such things tends to oversimplify to a binary — there are combatants and civilian bystanders. But there is a third category: non-combatants who provide support services to a military force, e.g. cooks, chaplains, mechanics. In a IAC, this category could be uniformed or it could be military contractors. In a NIAC, you wouldn’t have uniforms or formal contracts, but rather you would be confronted with, for example, a Bedouin clan that camps out next to a terrorist camp and sells food to the militants, washes their clothes, or provides other such forms of support services.
The DOD Law of War Manual talks about civilians authorized to accompany a force or civilian workers who place themselves in or on a military objective, knowing that it is susceptible to attack, in sections 4.15.2 and 5.12.3.2. It says they may not be made the object of the attack, but they accept the risk of incidental harm from enemy attacks.
Here are my questions:
1.  In terms of ex ante targeting decisions, does this mean that my example above (the food services providers) would not count for proportionality analysis?
2.  In terms of post facto battle damage assessments, would DOD classify my example as “combatants” or “non-combatants?”
3.  Does anything change in the answers if a strike is inside an area of active hostilities versus outside such an area?
ROUND ONE ANSWERS FROM LTC HENDERSON:

1.

Q: In terms of ex ante targeting decisions, does this mean that my example above (the food services providers) would not count for proportionality analysis?

A: No, the food service providers in your example would be considered in a proportionality analysis and other analyses related to collateral damage.  As an initial matter, in  your example, the Bedouin camp is “next to” a terrorist camp as opposed to “in or on” the terrorist camp, and it is not clear that the Bedouins know that the terrorist camp is susceptible to military attack as part of an armed conflict.  More importantly, however, part of the principle of “proportionality” under the law of war is the obligation by the attacking force to take feasible precautions to reduce the risk of harm to civilians in conducting attacks (e.g., warnings, adjusting the timing of the attack), and section 5.11, which describes this requirement, would apply to the Bedouins, even if their camp was located in or on the terrorist camp.  Further, as a matter of policy and practice, DoD applies procedures and standards (often much more restrictive than what would be legally required under the law of war) for reducing the risk of non-combatant casualties and other collateral damage, and individuals like the ones in your example generally would be “counted” in such analysis.

2.

Q: In terms of post facto battle damage assessments, would DOD classify my example as “combatants” or “non-combatants?”

A: Non-combatants.  Persons who are not part of an armed group and who do not take a direct part in hostilities, but who are providing support services to a non-State armed group, would be deemed to be non-combatants.

3.

Q: Does anything change in the answers if a strike is inside an area of active hostilities versus outside such an area?

A: With regard to the issues presented in your first two questions, the answers we have provided apply as a matter of law whether a strike is conducted inside an area of active hostilities or outside such an area.  However, as a matter of policy, outside areas of active hostilities the United States applies a standard in its counterterrorism operations that goes far beyond the requirements of proportionality; it applies a standard of “near certainty” that non-combatants will not be injured or killed.  Therefore, outside an area of active hostilities, the attack would not be authorized unless there was near certainty that none of the Bedouins in your example would be killed or injured, whether they were next to or in the terrorist camp.

FOLLOW-UP ROUND

(Since my questions this round were longer, I interwove the answers directly)

1.

Q: The answer to question one says the hypothetical Bedouin tribe would be weighed for pre-targeting proportionality analysis in part because the tribe is not camped out “in or on” the terrorist camp, but rather next to it. But I had read 5.12.3.2’s carve-out from proportionality analysis includes civilian support-providers who are merely in close proximity to a military target without actually being in or on it. The section says: “Moreover,the law of war accepts that the defender may employ these persons to support military operations near or within military objectives. If these persons could have the effect of prohibiting attacks by the attacking force, then the defending force that used such persons in proximity to its forces or military objectives would be unlawfully using the presence of such persons to shield its operations or its military objectives from attack.” What am I missing?

A: Section 5.12.3.2 addresses only harm to certain persons employed “in or on” military objectives; it does not address harm to persons “merely in close proximity to a military target without actually being in or on it.”

By its terms, section 5.12.3.2 applies only to “[h]arm to certain persons who may be employed in or on military objectives.”  (See, for example, the title of section 5.12.3.2, the first sentence of 5.12.3.2, and the third bullet of 5.12.3.2.)  We used the words “in or on” in order to keep the scope of this provision narrow.  Being “merely in close proximity to a military target” therefore would not suffice to make this provision applicable.  For example, this provision could apply to a civilian worker in a munitions factory, but this provision would not apply when that worker was at home or merely near the factory. When section 5.12.3.2 mentions defenders placing certain persons “near” or “in proximity to its forces or military objectives,” section 5.12.3.2 refers to the obligations applicable to a defending force.  But the rule set out in section 5.12 applies to an attacking force.  The reference to the defender’s obligations was intended to help the reader understand the rationale for the rule in section 5.12.3.2, not to define the scope of that rule.

In addition, section 5.12.3.2 does not state that these persons are in a “carve-out from proportionality analysis.”  (By contrast, section 5.12.3.1 provides that harm to persons who are military objectives (e.g., enemy combatants) “would not need to be taken into account.”)  The persons covered by section 5.12.3.2 would be assessed to be civilians or non-combatants.  As noted in our prior response, the proportionality analysis and procedures that are applied before strikes would include taking feasible precautions with regard to such persons (e.g., the factory might be struck at night when workers were not present).  Moreover, these persons would be considered by a commander in determining whether he or she should refrain from a strike because it was expected to result in excessive harm in relation to the military advantage expected to be achieved.  We acknowledge that the statement that such persons “assume the risk” could be understood to mean that harm to such persons is not taken into account.  This is not what we meant.  This, and other language concerning proportionality, is being reviewed and will be adjusted as appropriate to avoid any such confusion.  There is significance to “assumption of the risk,” but that significance does not extend to any sort of “carve-out” from being subject to a proportionality analysis.  We note that, in practice, DoD generally applies standards that are far more restrictive and protective of civilians and noncombatants than the legal requirements.

2.

Q: The answer to question one also suggests that if the Bedouin tribe did not know that the terrorist camp was susceptible to military attack as part of an armed conflict, that would also require counting them in pre-targeting proportionality analysis–even if they were actually in or on the target itself. (Am I interpreting you correctly?) Here I am confused about two different categories in 5.12.3.2 that seem like they create a loophole: there are “civilian workers who place themselves in or on a military objective, knowing that it is susceptible to attack, such as workers in munitions factories” but there are also “persons authorized to accompany an armed force,” who do not get such a knowledge requirement. Under 4.15, authorized accompanyers include non-military persons who are serving that armed force, such as contractors and civilian provisioners for an army. Could the Bedouin tribe be counted as persons authorized to accompany an enemy force,and therefore exempted from any knowledge requirement?

A: No.  In your example, members of the Bedouin tribe are not “persons authorized to accompany the armed forces.”  As explained in section 4.15 of the manual, the phrase “persons authorized to accompany the armed forces” is a term of art under the law of war that specifically refers to a category of persons entitled to prisoner of war status under the 1949 Geneva Conventions.  In your hypothetical, the Bedouin tribe has not received authorization from a State’s armed forces, but instead is supporting a non-State armed group.

3.

Q: The answer to question two does not include the two conditions mentioned in the answer to question one. To clarify, are you saying that for purposes of post-strike battle damage assessments, non-members of an armed force who were providing support services to that force and killed during a strike at that force are unequivocally counted as non-combatants, even if they were “in or on” the military target and even if they knew the target was susceptible to military attack as part of an armed conflict?

A: Yes, for the purposes of post-strike battle damage assessments and more generally, persons who are not part of an armed group who were providing support services to that force that did not amount to direct participation in hostilities would be counted as non-combatants, even if they were “in or on” the military target and even if they knew the target was susceptible to military attack as part of an armed conflict. (In your example, it does not seem as though the Bedouin tribe is functionally part of the armed group, see section 4.18.4.1, nor does it seem as though the Bedouin tribe was taking a direct part in hostilities, see section 5.9.)

It’s worth noting that the rule in section 5.12 requires refraining from certain attacks that are “expected” to cause excessive harm.  Thus, a person applying 5.12 would rely on information available before the strike, rather than information after the strike, such as a battle damage assessment of that strike.

Lastly, we are aware of comments that have been made on section 5.12 of the manual.  We are continuing to consider these comments, as well as all other comments on the manual, with a view toward updating and improving the manual.

 

Update from Venezuela on the Lost & Found Ex-Gitmo Detainee

Latest statement from Jon Eisenberg, lawyer for Jihad Diyab/Dhiab:

Andres Conteris, who is a member of the U.S. human rights group Witness Against Torture and is part of an informal group of Uruguayans who have offered support to Mr. Dhiab since his arrival in Uruguay, met this morning with a member of the Venezuelan foreign ministry with regard to Mr. Dhiab. Mr. Conteris was told that the ministry is working to arrange a special visit tomorrow (Tuesday) between him and Mr. Dhiab, that the ministry is also working on finding a solution for where Mr. Dhiab will be sent, and that no decision has yet been made about where Mr. Dhiab will be sent

Mr. Conteris learned over the weekend that Mr. Dhiab’s health is seriously deteriorating. We remain concerned that he may have resumed hunger striking, but we cannot be certain of that because nobody has been allowed to visit or otherwise communicate with him. I have not spoken with Mr. Dhiab since June 5. My understanding, however, is that the Venezuelan foreign ministry will now be requesting that I be allowed to speak with Mr. Dhiab by telephone.

Mr. Conteris will address these matters at press conference to be held on Wednesday at 10:00 a.m. near the U.S. embassy in Caracas.

Who are the two mystery agencies Obama says must help review capture operations, but not targeted killings?

The May 2013 Presidential Policy Guidance (PPG), also known as the “playbook” for drone strikes outside of conventional war zones, is now mostly public, thanks to a Freedom of Information Act lawsuit by the American Civil Liberties Union. In Chapter 6 of Power Wars, I outlined the second-term interagency process for signing off on proposed targeted killing operations based on anonymous sourcing; that outline dovetails with the far more detailed description of the bureaucratic procedures this document prescribes. But there was something curious in its section about who signs off on plans to capture high-value terrorism suspects, a component of the PPG that has received far less attention.

Both capture and kill operations undergo a similar review, including a deputies committee meeting and then a principals committee meeting chaired by the president’s counterterrorism adviser, currently Lisa Monaco. And for kill operations, the agency and departments whose leaders participate in those meetings are all unredacted. They are the State Department, the Defense Department, the Joint Chiefs of Staff, the Justice Department, the Homeland Security Department, the office of the Director of National Intelligence, the Central Intelligence Agency, and the National Counterterrorism Center

ppg-kill dc

But here’s that list in the equivalent section about who participates in meetings about proposed capture operations:

ppg-capture dc

Three more agencies help decide about capture ops: the Treasury Department and two three-letter agencies who have been redacted. Why would Treasury be there for one but not the other, and who are the other two with that status, and why keep them secret even though they’re letting it all hang out about the CIA’s participation? I have a theory about who the mystery members are and why that trio gets invited to help make decisions about one type but not the other, though not about the reason for the secrecy.

My guess is that this is about additional headaches that arise only if the suspect is still alive, and that the two mystery agencies are the Federal Bureau of Investigation and the National Security Agency.

The first thing that would happen, if they captured someone alive, is that a High-value Interrogation Group (“HIG”) would interrogate the prisoner for intelligence purposes; the FBI runs the HIG. Then, typically, the FBI would bring in a “clean team” of criminal interrogators who would Mirandize the prisoner and start over with questioning for the purpose of gathering admissions that are admissible as courtroom evidence. So the FBI needs to be part of the planning process for a capture operation, because it will need to be ready to swing into action. Indeed, the deputies are supposed to talk about “the proposed plan for the detention and interrogation of the suspect,” which they could hardly do without the bureau.

The deputies are also supposed to talk about “long-term disposition options for the individual” when the intelligence interrogation is over. The preference is clearly for the U.S. to transfer the captive to some other country if that is workable, but if not, the U.S. will retain custody and try to prosecute him. That could lead to a dilemma over the need to disclose to the defense, for a fair trial, classified evidence that might reveal sources and methods–like, say, data about financial transfers gathered by the Treasury Department’s intelligence programs, or intercepted communications gathered by NSA’s surveillance programs. Indeed, another thing the deputies are supposed to talk about is whether the proposed capture operation “would interfere with any intelligence collection or compromise any intelligence sources or methods.” You could see a scenario in which a suspect is of only middling importance and it is unlikely that any other country could take custody of him, and Treasury or the NSA would prefer not to capture him in the first place if it meant risking revealing something.

But none of that would be an issue in a kill operation–there’s no one to interrogate and prosecute, so no need for the FBI, Treasury, or NSA to weigh in with any unique equities in the decision. Even if I’m right, however, I have no idea why the Obama administration would redact the FBI and NSA. (So far I’ve not gotten any answers, but I will update the post if I do.)

UPDATE 8/8/2016: The “Federal Bureau of Investigation (FBI)” was spelled out in a first reference earlier in the doc, on page 5, but the NSA does not appear in unredacted portions so would need a first reference somewhere in which it is identified as the “National Security Agency (NSA)” for this theory to be correct. On Twitter, Josh Leitzel points out that a redaction line on page 8, a page before the list of participants in capture operation meetings, seems to line up.

CaptureTweet

And also:

CaptureTweet2

Lawyer asks Venezuela to let the ex-Gitmo detainee who went missing from Uruguay talk to him

In June, Jihad Diyab (also spelled Dhiab), an erratic former Guantanamo Bay detainee from Syria who was resettled in Uruguay (and who is also the plaintiff in a continuing lawsuit seeking to make public videotapes of forcefeeding sessions), said he was going to be incommunicado for the month of Ramadan. Then authorities lost track of him. This led to alarms and recriminations from Congress about sending former detainees to places like Uruguay. Late last month he showed up in Venezuela. He had taken a bus across Brazil and said he wanted to join his family in Turkey. He was arrested and supposedly is going to be deported back to Uruguay. But much remains murky about the whole episode.

Today his American lawyer, Jon Eisenberg, released this statement:

 

STATEMENT OF JON B. EISENBERG

REGARDING ABU WA’EL (JIHAD) DHIAB

5 AUGUST 2016

 

Former Guantánamo Bay detainee Abu Wa’el (Jihad) Dhiab is said to be in the custody of the Venezuelan agency Servicio Bolivariano de Inteligencia Nacional (SEBIN).

 

The United States government held Mr. Dhiab under indefinite detention without charge or trial at Guantánamo Bay for 12 years before releasing him to Uruguay in December of 2014.  Mr. Dhiab, a long-term hunger-striker, was brutally force-fed hundreds of times before his release. A lawsuit by Mr. Dhiab, challenging the conditions under which hunger-striking Guantánamo detainees have been force-fed, ended in midstream upon his release to Uruguay—but not before a judge ordered the Obama administration to release secret videotapes of Mr. Dhiab’s force-feedings to 16 U.S. news media organizations that sued to make the videotapes public.

 

This coming September 8, the Court of Appeals for the District of Columbia Circuit will hear oral arguments on a U.S. government appeal resisting public release of the videotapes.

 

I represented Mr. Dhiab in his legal challenge to the Guantánamo detainees’ force-feeding.  I have viewed the secret videotapes under court order subject to strict government supervision, and I can attest that they are terrible to see.  More than that I am forbidden to say, because the videotapes remain classified, held under lock and key in a top-secret facility during the pendency of the U.S. government’s appeal.

 

I am still haunted by those images—but surely less than Mr. Dhiab himself, to whom these things actually happened, hundreds of times, in a manner that was deliberately designed to be especially painful and humiliating.

 

Until Mr. Dhiab went to court, Guantánamo hunger strikers were subjected to force-feeding in excessive quantities at excessive speeds amounting to a form of water torture, their limbs, waist and head bound in a specially-designed restraint chair, using excessively large nasogastric feeding tubes that frequently drew blood and were lubricated in a manner that can cause a rare form of pneumonia. The U.S. government has since ceased some of those practices, but others continue to this day at Guantánamo Bay, in violation of internationally-recognized norms of ethical medical practice and basic human rights.

 

This past June 5, a few hours before the start of the Muslim holy month of Ramadan, I spoke with Mr. Dhiab by telephone about the pending effort by the U.S. news media organizations to secure public release of the force-feeding videotapes.  He continued to maintain a burning desire for their public release.  He told me:  “I want these tapes to be made public so that the world can see a small part of the many forms of torture that occurred at Guantánamo Bay.”

 

Mr. Dhiab also told me that he was hoping for an imminent visit to Uruguay by his wife and children, whom he has not seen for 15 years.  We made plans to speak again in mid-July, because he would not be using the telephone, email, or Skype throughout Ramadan.

 

Shortly after I spoke with Mr. Dhiab, he disappeared from public view.  Evidently I was the last person outside Uruguay to speak with him before his disappearance.  I did not know where he was.

 

Nothing more was heard from Mr. Dhiab until July 26, when he surfaced in Caracas, Venezuela, presenting himself at the Uruguayan consulate there and asking to be sent to Turkey to be reunited with his family.  The next day, the Uruguayan Ministry of Foreign Affairs issued a press release stating that Mr. Dhiab had asked to be allowed to telephone “the Red Cross, his lawyer and family members,” and that he was provided the means to make those telephone calls—after which he left the consulate voluntarily.

 

The truth is that Mr. Dhiab never telephoned me from the Uruguayan consulate in Caracas.  I have not heard from him since June 5.

 

Immediately after leaving the Uruguayan consulate on July 26, Mr. Dhiab again disappeared.  News media reports state that he is now being held by SEBIN.  If that is true, his detention is incommunicado and would appear to be without legal process. I find it tragically ironic that, because of an apparent quest to be reunited with his family, he now finds himself once again being detained without charge or trial and beyond reach of the rule of law.  And I am concerned about the conditions of his current confinement and whether he might have resumed hunger-striking in protest.

 

I therefore respectfully call upon the Venezuelan government to afford Mr. Dhiab access to legal counsel and allow me to speak with him by telephone forthwith.

 

I am hopeful that Venezuela will eschew the legacy of human rights violations at Guantánamo Bay and treat Mr. Dhiab with the dignity, respect, and fairness that the U.S. government denied him for 12 years.
Jon B. Eisenberg

Attorney

California State Bar No. 88278

5 August 2016

 

 

 

F.B.I. discloses 250 pages of internal shooting incident review reports

The Federal Bureau of Investigation has disclosed another batch of internal shooting incident review reports in response to my Freedom of Information Act lawsuit with the New York Times (pursued by the NYT’s lawyer David McCraw and the annual NYT First Amendment fellows, currently Tali Leinwand).

The names of the people who were shot are redacted unless they were killed. Fatal shooting incidents in this batch include the 2013 shooting of Anthony Meeks in Charlotte; the 2013 shooting of Tevin Hammond in Philadelphia; the 2012 shooting of Frank Eric Martinez in Los Angeles; the 2013 shooting of Jimmy Lee Dykes in Alabama (the rescue of a kidnapped child in bunker hostage rescue after a six-day siege-see the ABC News story on the link); and the 2013 shooting of James Lee DiMaggio in Idaho (the kidnapper of cheerleader, later made into a TV movie).

There are also newly available Civil Rights Division decline-to-prosecute memos for the 2013 killing of Jason Moore in Peoria (the “high school reunion” shooting); the 2012 killing of Fallacy Myers in Dayton; the 2013 killing of Scott Evans in New Market, Tennessee; the 2013 killing of Gerardo Delgato in Miami; the 2013 killing of Anthony Starnes in Richmond, Illinois; and the 2013 killing of Allen Desdunes in New Orleans.

The newly available pages are numbered in the lower right corner at NYT-816 to NYT-1082. That numbering is slightly off the PDF pages because there are several missing pages that we are still litigating over. The massive document set is below, but it’s probably easier to use in a DocumentCloud viewer, where I have indexed years and “bad shoots.”

None of these newly available reports involve “bad shoots” so I don’t immediately see a news article in them, but I’m adding them to the growing public library of such incidents that this and previous iterations of the litigation have brought to light. That library dates back to 1993.

If you come across this page and see something in these reports that is worthy of greater attention, please contact me.

Previous coverage:

 

Recent citations to “Power Wars”: Immigration, Forever War, and whether White House lawyers could constrain a President Trump

When you write a book–missing a lot of time with your family and flirting with walking away from a job you love in order to get it done–it is sincerely gratifying to see it find an audience. The first wave of that, of course, is reviews. The flurry for Power Wars are subsiding, although Barron’s published a nice review earlier this month by the FIU history professor Howard B. Rock. He wrote, “Power Wars should serve as a challenge to Obama’s would-be successors and an important guidebook to voters whose support they seek.” Alas he missed that there is a full index for the book online, writing that “Given the author’s prodigious research, his book’s main flaw is that it lacks an index.”

Ultimately more satisfying, though, is seeing the book start to become part of the discourse as a resource for other people who write about national security and executive power. A few days ago I blogged about the Syria “red line” episode of 2012-13, riffing off a citation to the book in a Lawfare/Just Security blog post by Ashley Deeks and Marty Lederman responding to the State Department dissent memo. Here are three other examples from the past few weeks. They span topics as diverse as the Supreme Court’s (non) ruling about President Obama’s immigration policy, the evolving nature of the Forever War against Qaeda/ISIS, and whether a President Trump’s White House counsel would check and balance him.

Peter Shane, The Atlantic, “The U.S. Supreme Court’s Big Immigration Case Wasn’t About Presidental Power,” today:

To be sure, Johnson’s program followed intense collaboration involving the White House, DHS, and the Justice Department. In Power Wars, his account of the Obama presidency, the New York Times reporter Charlie Savage explains how the White House vetted a variety of policy options regarding deferred action for undocumented immigrants. The White House was directly involved in DAPA as a policy matter, and even the legal analysis published by the Justice Department—which rejected one of DHS’s major proposals as impermissible—was developed in consultation with White House counsel. What this points to, however, is only Obama’s political accountability for DAPA, not the secretary’s underlying legal authority. For political leadership, a president is accountable in the polls, but not the courts.

Samuel Moyn, Lawfare, “Endless War Watch, Summer 2016,” June 24, expanding on his NYT review of Mark Danner’s “Spiral: Trapped in the Forever War”:

There is little or no new information in it for experts, but the national security law community should still read and ponder it. Danner’s contribution and voice are very different, for example, from Charlie Savage’s much noted Power Wars, with its new information and judicious balance.  Danner steps outside the bipartisan consensus on national security law whose current equilibrium and minor bickering set the term of Savage’s inquiry. Danner, clearly, did not simply want to split the difference between the tangling lawyers within a bipartisan consensus around the war. Instead, he offers a cri de coeur about a national security culture that has gone deeply awry. If only to verify that he is wrong, everyone who is part of that consensus, which I assume describes most of the writers for and readers of this site, should take a look.

…

The thesis of Savage’s book is that after some point Americans, or at least all the current president’s men and women, “were trying to fight al-Qaeda while adhering to what they saw as the rule of law” (my emphasis). Now some people might disagree that Americans have in fact adhered to the rule of law and worry about a regime in which people whom the law is supposed to regulate get to decide what the law is. (I have tried to avoid staying hungry while adhering to what I see as my weight-loss regime, and I am afraid it hasn’t worked very well either.) It once seemed like “constitutional alarmism” to complain that checks within the executive branch—such as the storied independence of the Office of Legal Counsel— were too weak, but what about now? That the legislature has been out to a very long lunch as its statutes proved infinitely elastic has long struck many as regrettable, even though it is routinely treated as inevitable.  Few people in America have considered that it is Americans who are deciding what international law says – Savage cites few if any foreigners on such questions — even though every law student learns the maxim that no man should be a judge in his own cause. But even to have such debates it is critical to grasp that the new normal is a war asserted to be legal and fought in ostensible conformity with law. Condemning the war as “state of exception” skirts this all-important fact or ignores for how long and how broadly the war has been legalized.

Andrew Rudalevige, The Washington Post/Monkey Cage, “No, White House lawyers would not prevent a President Trump from overstepping his constitutional bounds,” June 14:

Charlie Savage’s magisterial “Power Wars“ examines both administrations. “Many of the lawyers [Bush and Cheney] surrounded themselves with,” he writes, “ … embraced such sweeping views of executive power that the law was not a factor. They dispatched every hard problem with the same easy answer: The president could do whatever he deemed necessary to protect national security.”

Obama, by contrast, did not want to claim presidential prerogative, preferring to ground his actions in statute. But administration lawyers have shown great talent in finding statutory interpretations that could be used to justify Obama’s preferences.

And indeed, so have those in other administrations. Institutional pressures demand it. One of Reagan’s counsels, A.B. Culvahouse, told Borrelli et al. that the office is “the last and in some cases the only protector of the President’s constitutional privileges. Almost everyone else is willing to give those away in part, inch by inch and bit by bit. … So a lot of what I did was stand in the way of that process.” Or as one Justice Department attorney told Savage: “At the end of the day, the job was not to decide what the intelligence community needed. Our job was to help them bring the tool they said they needed up to conform with the rule of law.”

…

As Savage reported at the time, but details more extensively in Power Wars (see Ch. 12, part 5), various administration lawyers had diverging views on using the American military in Libya after those 60 days. Most (including OLC) seemed to think that, at the very least, the “operational tempo” would have to be dialed back, with the United States providing only support for NATO attacks rather than carrying them out.

But White House Counsel Robert Bauer, along with Koh, developed what Savage calls “a very aggressive interpretation” of the War Powers Resolution, arguing that the Libya operation did not constitute “hostilities” under the terms of the WPR. That phrase should be reserved, Obama himself said at a news  conference, for wars on the scale of Vietnam.

Thanks to all of you.

What Google Earth Shows About Guantanamo’s Super-Secret Camp 7

Gitmo labeled

UPDATED Jan. 28, 2018 with Strava fitness map data visualization insight

UPDATED Sept. 18, 2017 with updated Google Earth satellite images

UPDATED Apr. 6, 2021 with archival Google Earth satellite images

***

Today I read on TechCrunch that Google had figured out a way to make its satellite maps clearer, and checked Camp 7 of the Guantanamo Bay wartime prison, where the “high value” detainees who were formerly held in the Central Intelligence Agency’s black-site prisons are kept. They include Khalid Shaikh Mohammed and the other four 9/11 defendants, as well as Abu Zubaydah (the first prisoner to be waterboarded), Abd al-Rahim al-Nashiri (U.S.S. Cole defendant), and eight other men. Although I did not save a version of the image before, I’m pretty sure its resolution is indeed now clearer. I’ll make screenshots this time to preserve it for news value/comparison purposes, in case the website changes, and discuss what we can see.

First, for context, the military and intelligence community drape Camp 7 — marked on the military’s “for official use only” maps of the base as an “intelligence operations center” — with security theater. Journalists who visit the prison complex have been able to walk through Camp 5 and Camp 6, where lower-level detainees are held, but the military’s press handlers will not talk about Camp 7 – not even where it is located. In 2014, when James Connell, a defense lawyer for Ammar al-Baluchi, another defendant in the 9/11 military commission case, went to inspect his client’s cell, the military blocked out his van’s windows and drove him in circles before taking him there. (Al-Baluchi’s defense team is currently asking a military commissions judge to order the military to let the United Nations’ special rapporteur on torture visit Camp 7, a motion that I estimate has approximately zero percent chance of being granted.)

Despite all this, as I periodically have pointed out when feeling snarky/exasperated, anyone who looks at Google Maps in satellite view can see Camp 7, up in the hills about a mile northwest of the main prison complex. And now, unless I’m mistaken, we can see it a bit more clearly. So what can we see?

First, in the shot at the top of this post, I’ve marked the location of Camp 7 in the upper left hand corner. In the main complex area I’ve also marked Camps 5 and 6, along with Camp Echo (where detainees meet with their lawyers or live apart from the general population just ahead of their release), and the old, largely disused Camp Delta (which consists of now-empty Camps 1 through 4, but is still used to house prison library books and a hospital area).

Here is the closest view we can get of Camp 7:

Camp7closeup

[9/18/2017: See also updated pics at end of post.]

You can see that it has a central control area with two blocks, each of which has two outdoors recreation yards surrounded by high green tarp walls. That’s basically a smaller version of how Camps 5 and 6 work, and comports with a rare public description of Camp 7 from a military report in 2009:

Camp7 details

There’s a parking area to the east, and a path to the entrance that includes what looks like maybe a small walkbridge over a dry streambed. In 2013, Southcom wanted $49 million to build a replacement building because Camp 7 was built on unstable ground–a dry streambed that sometimes was not so dry, it was said–and its floors were supposedly buckling; that funding request was rejected.

Now, earlier this month, in a military commission hearing, Gouled Hassan Dourad, a Somali detainee who lives in Camp 7, described, among other things, how it is divided between two tiers called Alpha block and Bravo block. He also said each cell has something called a “Charlie area” at the back where detainees can get fresh air and communicate by shouting at each other, and which have roofs. Maybe those white areas are roof coverings for the fenced-in “Charlie” recreation areas? The Charlie areas may be new since 2009: they were not described in the 2009 report, which “strongly” recommended increasing “detainee-to-detainee contact in Camp 7, including the ability for detainees to communicate with each other from within their cells.” Dourad also said “pinholes” were opened since 2009 that permitted more socializing. Here are the relevant excerpts from the transcript of that testimony:

Camp7 testimony

(Update: Carol Rosenberg told me she thinks he actually said “beanholes” — as in the slots in the steel doors — and his accent threw off the translators. She also noted that there is also a reference to the Charlie areas in this court filing:

patio)

Back to Google Earth, it looks like there is a second perimeter fence encircling this area at some distance — a couple hundred feet to the west, but nearly 1,000 feed of scrub to the east. There also appear to be some small sheds or structures in a fenced-off adjoining yard that I’ve marked with a question mark. (This is purely a guess, but perhaps they are kennels for dogs used to patrol the perimeter? Or entrances to bunker cells used to house Camp 7 detainees during hurricanes?)

camp7 fencing

And at the southern edge, down by the road, it looks like there’s a security gate vehicles have to pass through to get up to the parking lot area:

Camp7 gate

So, that’s a tiny bit of transparency for Camp 7. Thank you, Google.

UPDATE (9/18/2017):

Looks like the satellite imagery has been swapped again. In the currently available version the white roofs that may be the open-air Charlie areas at the back of the cells are less contrasty. The ground is much more brown than green compared to the last version, suggesting this was taken during the dry season, so maybe they are just covered in dust.

UPDATE 1/27/2018:

The Guardian reported today (based on a discovery by Nathan Ruser) that a global data visualization map released by the fitness appmaker Strava, using GPS data uploaded from users wearing fitness trackers when jogging or otherwise moving around, revealed information about military bases around the world.

Most of those insights came from seeing where Western people were, such as intense jogging circles around the perimeter of what must be forward operating bases in Afghanistan. But looking at Strava’s presentation of Gitmo with data for both jogging and driving toggled on, the insight comes from the opposite: a striking gap in the stretch of the road (called “Central Magazine Road” I think) on either side of the turnoff to Camp 7, where nobody wearing a fitness tracker is going.

It looks like one of the security measures is to make even the approach to the turnoff to Camp 7 a no-go zone for most military personnel. Otherwise, that stretch of road would be heavily traveled, since it is the most efficient route between the main detention complex to the southeast and the main base development area to the northwest, near the ferry landing.

UPDATE 4/6/21:

This past weekend, Southcom announced that it had closed Camp 7 and moved the high-value detainees to Camp 5. Last December, Carol Rosenberg (now at the NYT!), Eric Schmitt, and I had teamed up on an article reporting on chatter that this was being considered. It’s a solution to the fact that 7 has been crumbling for years and Congress hasn’t wanted to pay for erecting a replacement facility. In addition, consolidating all the remaining detainees in one place – the adjoining complex of Camps 5 and 6 – will enable the Pentagon to reduce the number of troops it must deploy to guard them.

In discussing the end of Camp 7’s current-events relevance (though we’ll see whether military commissions defendants litigate over trying to preserve it; there has previously been litigation over preventing the military from razing the old Camp X-Ray and over overseas C.I.A. “black site” facilities), Cryptome brought to my attention something I had not realized: if you use Google Earth Pro, the stand-alone program, instead of the web interface for Google Earth, you can see earlier iterations of satellite imagery.  (Thanks also to Twitter user Juergen/@jnievele for separately explaining this.) Using this technique, we can ascertain another fact about Camp 7: it was constructed sometime between April 2003 and November 2004.

Notably, that’s exactly the same time that a Halliburton subsidiary, KBR, was building the first permanent/hard-sided unclassified prison building — Camp 5 (see my story about learning this as a young Miami Herald reporter visiting Gitmo in June 2003, when Carol was going to Iraq, here). So it probably wasn’t called Camp 7 at first, since there was no Camp 6 yet.

In addition, as the Senate Intelligence Committee report on the C.I.A. torture program later recounted, from September 2003 to April 2004, the C.I.A. held at least five of its “high value detainees” at Guantanamo, apart from the hundreds of lessor detainees the military was holding there. It named two high profile military commissions defendants, Abd al-Nashiri, who is accused of plotting of the U.S.S. Cole bombing, and Ramzi Binalshibh, one of the five accused of aiding 9/11 plot, as among those the C.I.A. held at Guantanamo during this early period. (The C.I.A. moved them out to other overseas black-sites after the Supreme Court agreed to consider whether civilian courts had jurisdiction to hear habeas corpus lawsuits by detainees held at Gitmo in the Rasul v. Bush case; two years later, the C.I.A. would close its other black sites and transfer its remaining detainees to Camp 7 at Gitmo, after another Supreme Court ruling, Hamdan v. Rumsfeld, raised the possibility that agency black-site officials could be prosecuted for war crimes.)

A footnote in the report also said the C.I.A. held detainees in two facilities there, codenamed DETENTION SITE MAROON and DETENTION SITE INDIGO; the same footnote also contains an otherwise redacted sentence about “a third C.I.A. facility, DETENTION SITE RED.”

So it doesn’t take a great leap of imagination to deduce that the facility we know by the name Camp 7 either started out as MAROON or INDIGO, or that it was built with the intention of being a black site facility to be called RED before the Supreme Court’s decision to hear Rasul v. Bush prompted the C.I.A. to abruptly get out of Guantanamo.

FBI Discloses 700 Pages of Internal Shooting Incident Review Reports

With the help of the New York Times‘ legal guru, David McCraw, I have been using a series of Freedom of Information Act lawsuits to assemble a massive public library of internal Federal Bureau of Investigation shooting incident reports dating back to 1993. We’ve just updated that library with about 700 pages of such reports generated from 2013 to 2015. I don’t see a general-interest news story in these documents, so I’m just putting them up; if someone sees something of note, please get in touch with me. The documents include:

  • Shooting Incident Review Team (SIRT) reports: Under most circumstances, whenever an FBI agent fires his or her weapon outside of a shooting range, the bureau’s Inspections Division sends out a SIRT to investigate. It interviews witnesses and uses forensics to reconstruct what happened, and produces a report. The reports are thick binders of supporting material, but I FOIA’d out only the narrative summary portions.
  • Shooting Incident Review Group (SIRG) reports: After the Inspections Division completes its findings, they go to  a SIRG – a panel of high-level FBI and Justice Department officials – for review. The SIRG is looking for lessons learned and also assesses whether the shooting complied with the bureau’s policy on using lethal force, which permits agents to fire only if they have a reason to believe that their lives or the lives of others are in imminent danger. If the SIRG says the shooting complied with policy, that’s a “good shoot,” and if it did not comply with policy, that’s called a “bad shoot,” and an agent gets recommended for discipline, ranging from a censure letter in his or her file to being fired.
  • Civil Rights Division (CRT) reports, etc: For more recent incidents, I have also been asking for additional documents where somebody was hit by a bullet or where at least one member of the SIRG voted to find a bad shoot, even if that member was outvoted. Most importantly, I am seeking reports by Main Justice’s Civil Rights Division about whether to recommend prosecuting an agent for violating a person’s civil rights — or, more realistically given the unbroken pattern, why they don’t think prosecution is justified. In the super-rare case where an agent is recommended for discipline, I’m also asking for documents related to that process, which can take a long time.

Unintentional shootings are, of course, always bad shoots. But it is extremely rare for the bureau to find intentional shootings to be bad shoots, especially in potentially fraught situations in which a bullet actually hit somebody. The FBI’s internal shooting review process, in its current form, dates back to 1993, when then-FBI director  Louis J. Freeh overhauled it. Before then, the credibility of the process had been called into question because the bureau had deemed justified a shot by a FBI sniper that killed the wife of a white supremacist during the 1992 standoff at Ruby Ridge in Idaho, but then Main Justice took a second look and said it was improper. Still, in the 20 years since that overhaul, the process has deemed exactly one shot fired by an FBI agent that hit someone to be a bad shoot – a 2012 incident in Queens.

Here is some coverage:

 



Savage NYT FOIA FBI Shooting Incident Review Reports (Text)