Transparency failures are far more acute in the Government’s international military and intelligence operations. First, the Government has failed to track and make public the number of civilian casualties, or the conditions under which deaths occurred. Second, the military justice system fails to provide ordinary people, including U.S. citizens and the families of Iraqi or Afghan victims, basic information on the status of investigations into civilian casualties or prosecutions resulting therefrom. Third, the government has refused to disclose the legal basis for targeted killings conducted through drone attacks on the territory of other States, or to identify any safeguards in place to reduce collateral civilian casualties and ensure that the Government has targeted the correct person.
The visit took place under the previous administration, so it will be interesting to see how the current administration will react to the Special Rapporteur at the Human Rights Council in the beginning of June.
Some noteworthy paragraphs:
On the lack of military transparancy and accountability
43. DOD officials confirmed to me that the military does not systematically compile statistics on civilian casualties in its operations in Afghanistan or Iraq. The purported reason is that “body counts” are not relevant to evaluating the effectiveness or legality of military operations. It is true that a simple “body count” may not on its own be useful. However, systematically tracking how different kinds of operations result in different levels of civilian casualties is critical if the United States is serious about minimizing casualties. Indeed, the Government’s own experience shows why this is so. Despite the general policy against tracking civilian casualties, in Iraq the military reportedly tracked checkpoint deaths when soldiers fire at civilians they believe, sometimes mistakenly, to be suicide bombers or other attackers. I understand these monitoring efforts resulted in procedural changes that saved lives. This kind of effort to track, analyze, and learn from the consequences of military operations should be routine, not exceptional. The numbers and trends should be reported publicly to strengthen external accountability.
55. It appears that no U.S. officer above the rank of major has ever been prosecuted for the wrongful actions of the personnel under his or her command. Instead, in some instances, commanders have exercised their discretion to lessen the punishment of subordinates for wrongful conduct that resulted in a custodial death.
On the lack of intelligence transparancy
47. There are credible reports of at least five custodial deaths caused by torture or other coercion in which the Central Intelligence Agency (CIA) has been implicated. Although the role of the CIA in these wrongful deaths has reportedly been investigated (and in one instance, a CIA contractor prosecuted), no investigation has ever been released and alleged CIA involvement has never been publicly confirmed or denied. The CIA Inspector General told me that the number of cases involving possibly unlawful killings referred by the CIA to the DOJ is classified.
Civilian Justice failures
56.The principal accountability problem today is not the inadequacy of the applicable legal framework. Rather, U.S. prosecutors have failed to use the laws on the books to investigate and prosecute PCs and civilian agents for wrongful deaths, including, in some cases, deaths credibly alleged to have resulted from torture and abuse. Prosecutors have also failed, even years after alleged wrongful deaths, to disclose the status of their investigations or the bases for decisions not to prosecute.
57. The Department of Justice (DOJ) is responsible for prosecuting PCs and civilian Government employees, as well as former military personnel who commit war crimes. DOJ has failed miserably. Its efforts are coordinated by two bodies. The first is a task force based at the U.S. Attorney’s Office for the Eastern District of Virginia, which handles detainee abuse cases. This task force has admitted that 24 cases of alleged detainee abuse were referred to it and that it has declined to prosecute 22 of these cases.84 It is unclear why more cases have not been referred (or if they have, how many more), or how many of the 24 referred cases involved the detainee deaths credibly alleged to have occurred at the hands of PCs or the CIA.
60. The lamentable bottom line is that DOJ has brought a scant few cases against PCs for civilian casualties, achieved a conviction only in one case involving a CIA contractor, and brought no cases against CIA employees.Government officials with whom I met acknowledged this lack of accountability, and it now seems clear that this vacuum is neither legally nor ethically defensible. Indeed, many PCs themselves accept the need for legalregulation and accountability.86 Unfortunately, accountability for CIA officials appears more remote because of a lack of political will.
61. In short, war crimes prosecutions in particular are “politically radioactive.” That sense continues to be reflected by Government statements which indicate more of a commitment to “moving forward” than to ensuring transparency and accountability for policies, practices and conduct that led to illegal killings by Government personnel and their agents. But a refusal to look back inevitably means moving forward in blindness. Political expediency is never a permissible justification for a State’s failure to investigate and prosecute alleged crimes.
62. Although there is no substitute for prosecution of violations of the right to life, in the short-term there are a number of steps the Government can take towards transparency and accountability. One such step is the creation of a national “commission of inquiry” tasked with carrying out an independent, systematic and sustained investigation of policies and practices that lead to deaths and other abuses. Over the 27 years of their mandate, successive Special Rapporteurs for extrajudicial execution have focused on the procedures and results that make such commissions effective and give them credibility. I described in a recent report to the Council the situations to which a commission is best suited, and the principles and standards necessary for it to be successful.
Targeted killings on the territory of other states
71. While I have welcomed the Government’s willingness to engage in dialogue on targeted killings, it has been evasive about its grounds for targeting, and I am disturbed by the broader implications of its positions. Briefly, those positions are that: (a) the Government’s actions against al-Qaeda constitute a world-wide armed conflict to which international humanitarian law applies; (b) international humanitarian law operates to the exclusion of human rights law; (c) international humanitarian law falls outside the mandate of the Special Rapporteur and of the Human Rights Council; and (d) States may determine for themselves whether an individual incident is governed by humanitarian law or human rights law.
72. I responded to these positions in detail both directly to the Government and in my 2007 report to the Council.100 I have discussed the extent to which these positions constitute a radical departure from past practice, and the highly negative consequences that would flow from them.101 Under the Government’s reinterpretation of the law and the Council’s and my mandate, the United States would function in a public accountability void – as could other States – to the detriment of the advances made by the international human rights and humanitarian law regimes over the past sixty years.
83. Enhancing transparency in targeted killings
- The Government should explicate the rules of international law it considers to cover targeted killings. It should specify the bases for decisions to kill rather than capture particular individuals, and whether the State in which the killing takes place has given consent. It should specify the procedural safeguards in place, if any, to ensure in advance of drone killings that they comply with international law, and the measures the Government takes after any such killing to ensure that its legal and factual analysis was accurate and, if not, the remedial measures it would take.
- The Government should make public the number of civilians collaterally killed as a result of drone attacks, and the measures in place to prevent such casualties. Alston reminds us as well that currently five men detained at Guantanamo have been charged with capital offences under the Military Commissions Act (MCA) and a number of other Guantanamo detainees face charges that may carry the death penalty before analysing the flaws in the Military Commissions system.
On the deaths in Guantanamo the report states:
Although DOD has now released redacted copies of internal investigation documents and autopsies, it should provide fully unredacted medical records, autopsy files and other investigation records to the families of all the deceased.
Filed under: Extrajudicial killing, Guantanamo, Military commissions, Technology, United States |
The Lift - Legal Issues in the Fight against Terrorism 
Kenneth Anderson has written an article for Brookings on Targeted Killing in U.S. Counterterrorism Strategy and Law, read it here: http://www.brookings.edu/papers/2009/0511_counterterrorism_anderson.aspx?rssid=terrorism