Federal judge allows Rumsfeld torture suit to proceed

[JURIST] A judge for the US District Court for the Northern District of Illinois on Friday 5 March denied  a motion to dismiss a torture suit brought against former defense secretary Donald Rumsfeld by two American citizens captured while working in Iraq.

Judge Wayne Andersen dismissed two other counts but allowed the count alleging the plaintiffs were subject to cruel and degrading treatment methods during their detention. The plaintiffs, Donald Vance and Nathan Ertel, were working for a private Iraqi security firm called Shield Group Security. There they witnessed suspicious activity that they reported to US authorities, but they were later arrested by US forces and detained without representation. The plaintiffs brought a cause of action recognized in Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics against Rumsfeld, claiming that he was personally responsible for the alleged unconstitutional treatment they faced while in detention.

While allowing the suit seems in conflict with the recent decision in Ashcroft v. Iqbal, which extended heightened pleading requirements under Fed. R. Civ. P. 8(a) beyond antitrust cases, the judge wrote that Iqbal “requires vigilance on our part to ensure that claims which do not state a plausible claim for relief are not allowed to occupy the time of high-ranking government officials,” but is not supposed to be a “categorical bar on claims against” them.

Rumsfeld has faced multiple suits brought in relation to treatment of detainees. Last month, a judge for the US District Court for the District of Columbia ruled that claims of unlawful treatment and wrongful death brought on behalf of two former Guantanamo Bay detainees are barred by the Military Commissions Act of 2006 (MCA). The claim was brought against Rumsfeld and more than 100 military officers and personnel under the Alien Tort Claims Act, which provides that district courts have original jurisdiction to hear claims for torts “committed in violation of the law of nations or a treaty of the United States.” In another suit last December, the US Supreme Court declined to hear a lawsuit against Rumsfeld and other military officials brought by four UK citizens who were detained at Guantanamo.

Targeted killings, surveillance and drone attacks after the Dubai assassination plot and the Al Awlaki controversy

NewAmerica study on the use of drones in Pakistan between 2004 and 2010

The study shows that the 114 reported drone strikes in northwest Pakistan, including 18 in 2010, from 2004 to the present have killed approximately between 834 and 1,216 individuals, of whom around 549 to 849 were described as militants in reliable press accounts, about two-thirds of the total on average. Thus, the true civilian fatality rate since 2004 according to this analysis is approximately 32 percent.

The NYtmes reports that drones are also playing a more important role in Afghanistan, which is illustrated by at least 14 drone strikes near Marja in the first half of February. Trying to bring down civilian deaths, Gen. Stanley A. McChrystal, the commander of the American-led forces in Afghanistan, has tightened the rules for airstrikes, especially by military jets, which usually drop larger bombs than the drones and have less time to follow the targets.

General McChrystal recently told Congress that the intelligence from the drones and other planes was “extraordinarily effective” in dealing with the broad mix of demands.

Military officials said the Special Forces were using the drones to attack Taliban leaders and bomb-making networks in eastern and southern Afghanistan, often by stacking two or three drones over a compound to track everyone who came and went. Much of that data was analyzed in the United States, where the drone pilots are stationed. But ground commanders also receive the video feeds on special laptops.

Controversy about targeted killings of US civilians with drones
A front-page story in the Washington Post on January 27 included the remarkable statement that

“Both the CIA and the JSOC [Joint Special Operations Command of the Department of Defense] maintain lists of individuals… whom they seek to kill or capture. The JSOC list includes three Americans, including [Islamist cleric Anwar al-] Awlaki, whose name was added late last year. As of several months ago, the CIA list included three U.S. citizens, and an intelligence official said that Aulaqi’s name has now been added.”

But at least the part about the CIA list turns out to be unfounded. As Secrecy News notes:

“The article referred incorrectly to the presence of U.S. citizens on a CIA list of people the agency seeks to kill or capture,” the Washington Post said in a correction published in the February 12 edition.  “After The Post’s report was published, a source said that a statement the source made about the CIA list was misunderstood. Additional reporting produced no independent confirmation of the original report, and a CIA spokesman said that The Post’s account of the list was incorrect. The military’s Joint Special Operations Command maintains a target list that includes several Americans. In recent weeks, U.S. officials have said that the government is prepared to kill U.S. citizens who are believed to be involved in terrorist activities that threaten Americans.”

However, on February 3, Director of National Intelligence Dennis C. Blair testified to his view that U.S. government agencies may use lethal force against U.S. citizens who are involved in terrorist activities. While Blair did not specifically discuss Awlaki, the cleric survived one such airstrike in December.

The U.S. intelligence community policy on killing American citizens who have joined al Qaeda requires first obtaining high-level government approval, a senior official disclosed to Congress on Wednesday.

Director of National Intelligence Dennis C. Blair said in each case a decision to use lethal force against a U.S. citizen must get special permission.

“We take direct actions against terrorists in the intelligence community,” he said. “If we think that direct action will involve killing an American, we get specific permission to do that.”

He also said there are criteria that must be met to authorize the killing of a U.S. citizen that include “whether that American is involved in a group that is trying to attack us, whether that American is a threat to other Americans. Those are the factors involved.”

Glenn Greenwald argues that this is clearly a violation of US law.

However in subsequent interviews with Newsweek’s Mark Hosenball, anonymous current and former U.S. national-security officials revealed that no such special procedure need occur if a strike does not specifically target an American citizen, even if an American dies in the process, raising questions about whether the administration sought to evade the constitutional prohibition on summarily killing Awlaki that his citizenship entitles him to receive. In any case, the president himself does not have to sign off on kill orders – making plausible deniability all the more possible.

The ACLU said the following:

“It is alarming to hear that the Obama administration is asserting that the president can authorize the assassination of Americans abroad, even if they are far from any battlefield and may have never taken up arms against the U.S., but have only been deemed to constitute an unspecified ‘threat.’ This is the most recent consequence of a troublingly overbroad interpretation of Congress’s 2001 Authorization for the Use of Military Force. This sweeping interpretation envisions a war that knows no borders or definable time limits and targets an enemy that the government has refused to define in public. This policy is particularly troubling since it targets U.S. citizens, who retain their constitutional right to due process even when abroad.”

Over at OJ, Kenneth Anderson argues that the Obama administration’s lawyers need to step up to the plate and defend targeted killing using Predators and, second, the proper legal basis on which to defend it to the full extent undertaken by the Obama administration is the international law of self-defense, rather than simply the law of armed conflict, targeting combatants. More here and here.

Roger Cohen at the NYTimes brings back memories of the Letelier assassination in Washington to put things more in perspective. He adds:

The drone strikes are concentrated on Pakistan, with which America is not at war. The Obama administration has declined to say anything about this doctrine of targeted killing. It’s not clear how you get on a list to be eliminated; who makes that call; whether the decision is based on past acts (revenge, say, for the killing of C.I.A. agents in Khost, Afghanistan) or only on corroborated intelligence demonstrating that the target is planning a terrorist attack; what, if any, the battlefield limits are; and what, if any, is the basis in law.

Others see other dangers that come with the use of drones.

Peter Singer reminds the readers of Newsweek that at least 40 other countries—from Belarus and Georgia to India, Pakistan, and Russia—have begun to build, buy, and deploy unmanned aerial vehicles.

Just as we once failed to imagine terrorists using our own commercial aircraft against us, we are now underestimating the threat posed by this new wave of technology. We must prepare for a world in which foreign robotics rivals our own, and terrorists can deliver deadly explosives not just by suicide bomber but also by unmanned machine.

The ease and affordability of such technology, much of which is already available for purchase commercially, means that drones will inevitably pass into the wrong hands, allowing small groups and even individuals to wield power once limited to the world’s great militaries.

As one robotics expert told me, for less than $50,000 “a few amateurs could shut down Manhattan.”

Israel’s air force has recently introduced a fleet of large unmanned planes that it says can fly as far as Iran.

The NSJ argues that drones raise unique security issues as their data streams, and possibly control streams, must be secured.

U.S. drone vulnerability stems from the fact that once a drone is far from its base, satellite uplinks are necessary to link the drone to the base.  Such uplinks are vulnerable to hacking, unless the data stream is encrypted.  But the drones’ data stream is unencrypted, and unless significant expenditures are made to add encryption to the proprietary satellite technology, the vulnerability will remain.  The unencrypted data stream vulnerability carries over to other U.S. satellite traffic, as a 2005 CIA report describes.  While the control data stream of drones is encrypted, the ability of enemies to access U.S. drone intelligence seriously undermines the ability of the United States to use that intelligence for mission purposes.

U.S. drone vulnerabilities have been known to the U.S. military since at least the 1999 Yugoslav war.  Whether it was bureaucratic indifference or inertia, the problem was not addressed.  Most worrying, U.S. commanders may have seriously underestimated the ingenuity and technical proficiency of militants.  If this is so, it must be hoped that the same commanders will not continue to underestimate the threat to drone data-gathering and control posed by a lack of data stream security.  Only by addressing this security hole can the ever-growing drone force be considered a fully functional weapon of war, useful in all possible conflicts and with a varied mission profile.

Is surveillance complicating targeted killings?
Although the Dubai police say those involved in Mabhouh’s killing were careful to use encrypted communications and to avoid leaving traces of their real identities behind, the global use of advanced investigative technologies, is enough to gravely complicate the creation of “covers” meant to allow assassins to slip unnoticed past national authorities, according to several former U.S. covert operations officers in The Washington Post.

“It is getting harder and harder in a pervasive surveillance society,” partly because of biometric technologies that include computer-driven matching and comparisons of facial structures, said one former official. But, he added, “for every technical barrier, there is going to be some technical solution. There might be a lag time” before new countermeasures are adopted, but even now “there are other ways to go about it . . . without sending in 11 to do a job like this.”

Ubiserv comment here.

More academic reading

Gregor Noll (Lund Univ. – Law) has posted Sacrificial Violence and Targeting in International Humanitarian Law. The paper also sheds some light on some of the issues raised above.

The LA Times has a string of opinions on targeted killings as well, focussing more on the alleged killing of Hamas leader Mabhouh by the Mossad, including by Philip Alston and Amos Guiora. See also this piece in the WSJ.

Alan Dershowitz analysis of the legal issues rising out of the alleged Israeli assassinations of a Hamas leader in Dubai here.

Saudi Arabia determined to fight extremism

Saudi Arabia is determined to halt extremism and has foiled a number of terror plots inside the kingdom, King Abdullah said on Sunday 7 March.

“In domestic policy, the government continues to expend its efforts to strengthen security,” the king said in his annual speech to the Shura Council, the country’s consultative assembly.

“A special effort has been made to confront the thinking of the group of deviants, extremists and terrorists,” he said, using language the government usually employs to identify Al-Qaeda.

“The security services have had repeated successes with preventative actions, and will continue their activities to foil the terrorist plots, eradicate the deviant groups, and dry up the sources of terrorism,” he said.

Saudi officials have broken up several plots to launch attacks inside the kingdom in the past year, rounding up numerous suspected militants and seizing weapons caches and bomb-making equipment, all linked to Al-Qaeda.