Ex-Envoy: Arrests of top taliban figures ended talks

The former top United Nations official in Afghanistan said that recent arrests of high-ranking Taliban figures by Pakistan had severed important secret communications between the Taliban and the West meant to foster peace negotiations.

Kai Eide, the former special representative in Afghanistan for the United Nations Secretary General, told the BBC in an interview broadcast on Friday 19 March that, for the past year, the United Nations had been quietly involved in early discussions with the Taliban in Dubai. He said those talks were upended by the arrests of senior Taliban leaders, including the group’s second in command, Mullah Abdul Ghani Baradar, in February.

Mr. Eide, who stepped down earlier this month, said the arrests undermined efforts to start talks and to build trust that are necessary for substantive peace negotiations.

“The Pakistanis did not play the role that they should have played,” he said in the interview, which he confirmed to The New York Times.

There has been a swirl of often contradictory reports about the arrest of Mullah Baradar, and a wide range of American and international reactions to it. Some American officials have welcomed Pakistan’s new enthusiasm for hunting down Taliban leaders. Others have questioned Pakistan’s motivations in detaining Mullah Baradar, who was open to early discussions about peace negotiations.

On Friday, the spokesman for Pakistan’s Foreign Ministry, Abdul Basit, said Pakistan was committed to an Afghan-led process of reconciliation with the Taliban, according to Reuters. “Any other contentions, we believe, are a misrepresentation,” he said.

Mr. Eide’s emphasis on talks with the Taliban seems to underscore growing differences between the United States and some of its allies over the timing of negotiations.

The United Nations and Western European countries increasingly agree that ending the war in Afghanistan will require internationally supported agreements with the Taliban and that discussions need to start immediately. The Americans support negotiations on a slower timetable that would enable military operations to weaken the Taliban so they would be more vulnerable at the bargaining table.

The clearest enunciation of the European view was made by the British foreign secretary, David Miliband, who laid out a road map to negotiations with the Taliban in a speech earlier this month at M.I.T. He said the United Nations could serve as a neutral meeting ground for parties who distrusted one another.

Mr. Miliband did not eschew military efforts, but suggested focusing instead on setting conditions for negotiations. Mr. Eide’s overtures, which he described in the BBC interview as “talks about talks,” were an initial step in that direction.

Although Mr. Miliband ruled out discussions with those committed to Al Qaeda’s brand of militancy, he strongly endorsed an effort to reach out to almost everyone else, and without any preconditions. “Dialogue is not appeasement,” he said.

Mr. Eide and others said that Afghan government figures had already reached out to the Taliban. Other interlocutors have also been involved, including Saudi Arabia, which has hosted some initial discussions, according to senior members of the Karzai government.

India seeks to question US terror convict

Indian authorities will ask the United States to let them question a Chicago man who pleaded guilty to scouting targets for the 2008 terror attacks in Mumbai, the government said Friday 19 March.

David Coleman Headley pleaded guilty Thursday in U.S. District Court to making surveillance videos in preparation for the siege of India’s financial capital and for involvement in a plot to attack a Danish newspaper over cartoons depicting the Prophet Muhammad.

As part of his plea deal, Headley will not face execution if he continues to cooperate with U.S. prosecutors’ terrorism investigation.

Indian Home Minister Palaniappan Chidambaram said India had yet to receive permission from U.S. authorities to speak with Headley or his wife.

“We will continue to press our request for access to interrogate him,” Chidambaram told reporters.

Chidambaram said he also planned to continue to push a request to extradite Headley to face charges in India but had little hope of success because the plea agreement expressly forbade his extradition to India, Denmark and Pakistan.

The 60-hour Mumbai siege left 166 people dead. Nine attackers — all of whom were based in Pakistan — were killed, while a tenth suspect is on trial in Mumbai

Dismantling of Saudi-CIA Web site illustrates need for clearer cyberwar policies

By early 2008, top U.S. military officials had become convinced that extremists planning attacks on American forces in Iraq were making use of a Web site set up by the Saudi government and the CIA to uncover terrorist plots in the kingdom.

Elite U.S. military computer specialists, over the objections of the CIA, mounted a cyberattack that dismantled the online forum. Although some Saudi officials had been informed in advance about the Pentagon’s plan, several key princes were “absolutely furious” at the loss of an intelligence-gathering tool, according to another former U.S. official.

Four former senior U.S. officials, speaking on the condition of anonymity to discuss classified operations, said the creation and shutting down of the site illustrate the need for clearer policies governing cyberwar. The use of computers to gather intelligence or to disrupt the enemy presents complex questions: When is a cyberattack outside the theater of war allowed? Is taking out an extremist Web site a covert operation or a traditional military activity? Should Congress be informed?

“The point of the story is it hasn’t been sorted out yet in a way that all the persons involved in cyber-operations have a clear understanding of doctrine, legal authorities and policy, and a clear understanding of the distinction between what is considered intelligence activity and wartime [Defense Department] authority,” said one former senior national security official.

Precedent before policy

The absence of clear guidelines for cyberwarfare is not new. Lawyers at the Justice Department’s Office of Legal Counsel are struggling to define the legal rules of the road for cyberwarriors, according to current and former officials.

The Saudi-CIA Web site was set up several years ago as a “honey pot,” an online forum covertly monitored by intelligence agencies to identify attackers and gain information, according to three of the former officials. The site was a boon to Saudi intelligence operatives, who were able to round up some extremists before they could strike, the former officials said.

At the time, however, dozens of Saudi jihadists were entering Iraq each month to carry out attacks. U.S. military officials grew concerned that the site “was being used to pass operational information” among extremists, one former official said. The threat was so serious, former officials said, that Gen. Ray Odierno, the top U.S. military commander in Iraq, requested that the site be shut down.

The operation was debated by a task force on cyber-operations made up of representatives from the Defense and Justice departments, the CIA, the Office of the Director of National Intelligence, and the National Security.

The CIA argued that dismantling the site would lead to a significant loss of intelligence. The NSA countered that taking it down was a legitimate operation in defense of U.S. troops. Although one Pentagon official asserted that the military did not have the authority to conduct such operations, the top military commanders made a persuasive case that extremists were using the site to plan attacks.

The task force debated whether to go forward and, if so, under what authority. If the operation was deemed a traditional military activity, no congressional committee needed to be briefed. If it was a covert action, members of the intelligence committees would have to be notified.

The task force weighed possible collateral damage, such as disruption of other computer networks, against the risk of taking no action. Most thought that the damage would be limited but that the gain would be substantial.

The matter appeared settled, ex-officials said. The military would dismantle the site, eliminating the need to inform Congress.

A group of cyber-operators at the Pentagon’s Joint Functional Component Command-Network Warfare at Fort Meade seemed ideally suited to the task. The unit carries out operations under a program called Countering Adversary Use of the Internet, established to blunt Islamist militants’ use of online forums and chat groups to recruit and mobilize members and to spread their beliefs.

Unintended outcomes

A central challenge of cyberwarfare is that an attacker can never be sure that an action will affect only the intended target. The dismantling of the CIA-Saudi site inadvertently disrupted more than 300 servers in Saudi Arabia, Germany and Texas, a former official said.

After the operation, Saudi officials vented their frustration about the loss of intelligence to the CIA. Agency officials said the U.S. military had upset an ally and acted outside its authority in conducting a covert operation, former officials said.

But some experts counter that dismantling Web sites is ineffective — no sooner does a site come down than a mirror site pops up somewhere else, because extremist groups store backup copies of forum information in servers around the world.

EFF appeals dismissal of warrantless wiretapping case

On 19 March the Electronic Frontier education (EFF) filed its appeal to the 9th Circuit Court of Appeals of the dismissal of Jewel v. NSA, the case EFF brought against the U.S. government and government officials on behalf of AT&T customers to stop the National Security Agency’s  mass surveillance of their communications and communications records.

The case arises from the still growing stacks of evidence confirming the surveillance, including the technical documents presented by former AT&T employee Mark Klein that describe the NSA’s secret mass wiretapping facility in San Francisco.

On 21 January the District Court dismissed the case based on the dangerous and incorrect theory that because so many people have been impacted by the widespread surveillance, no individual person has a “particularized injury.”

According to EFF, this ruling is not only wrong, but also extremely dangerous because it would have the courts blind themselves to massive violations of the law and the Constitution on the grounds that they impact too many people.

UK delays new guidelines for intelligence agencies, will continue diplomatic assurances deportations in 2010

New British guidelines on handling terrorism suspects held overseas have been delayed over a dispute about how to deal with potentially life-saving information from detainees who may be at risk of torture by allies.

Prime Minister Gordon Brown promised a year ago that new rules would be drawn up, and the government was expected to make them public for the first time on Thursday. But officials have acknowledged the document won’t appear before the country’s national election, due within three months.

Brown ordered the rules to be rewritten following accusations that British officials were complicit in the torture of terror suspects held overseas by other nations, including the United States. Police are investigating two cases related to the actions of intelligence officers from the MI5 and MI6 spy agencies.

Two government officials, who demanded anonymity to discuss the issue, said Britain’s government and Parliament’s intelligence oversight committee disagree over a section of the new rules dealing with how ministers should handle material gleaned from suspects who may be at risk of mistreatment.

“The problem is that there is a difference of opinion about something we have written in the report,” said Michael Mates, a Conservative lawmaker and a member of Parliament’s Intelligence and Security oversight committee.

A report by the committee on detainee handling will be published alongside the new guidelines. Opposition lawmakers and human rights groups have accused the government of purposely delaying publication of controversial material until after the election, expected in May.

Conservative Party legislator William Hague said Brown is “suspected in some quarters of wishing to suppress difficult issues” and accused the government of “mounting incompetence” over national security issues.

In a new report on human rights, Britain’s Foreign Office hinted at the likely tone of the new rules. It acknowledged the U.K. can’t “afford the luxury of only dealing with those” who share Britain’s standards or laws.

The Government has been absolutely clear that the UK stands firmly against torture and cruel, inhuman and degrading treatment or punishment. When detainees are in our custody we can be sure how they are treated and that measures are put in place to meet our obligations and standards. We cannot always have that same level of assurance when they are held overseas by foreign governments.

However, we cannot get all the intelligence we need from our own sources, because the terrorist groups we face are scattered around the world, and our resources are finite. So we must work with intelligence and security agencies overseas. Some of them share our standards and laws while others do not. But we cannot afford the luxury of only dealing with those that do. The intelligence we get from others saves British lives.

Whether sharing information, which might lead to the detention of people who could pose a threat to our national security; passing questions to be put to detainees; or participating in interviews of them, we do all we can to minimise, and where possible avoid, the risk that the people in question are mistreated by those holding them. However, there are times when we cannot reduce the risk to zero.

Once published, our consolidated guidance to Agency staff and service personnel will make clear the careful and considered way we approach these situations. Ultimately it is for Ministers to balance the risk of mistreatment against the national security needs and make a judgement. Ministers take this responsibility very seriously. If the risk of mistreatment is too high then we will not go ahead with an operation. This is not just a theoretical possibility – operations have been stopped because the risk of mistreatment was judged to be too high. But this is never an easy judgement and we would be failing in our twin duties to defend the country and to uphold human rights if we pretended that there was never a tension between the two.

Foreign Secretary David Miliband told the House of Commons that drafting the new rules had been more complex than first imagined. “The most important thing is to get this guidance right,” he told lawmakers.

Lawmaker Kim Howells, chairman of the Intelligence and Security Committee, said it was now “a matter for the prime minister” to decide when the rules are finalized and made public. Howells on Thursday issued an annual report by his oversight committee, warning that Britain’s intelligence agencies are preparing for cuts to their budgets for the first time since the Sept. 11, 2001, attacks on the United States.

In the human rights report the FCO further stressed one particular aspect of the Court of Appeal ruling in the Binyam Mohamed case, namely that it “upheld the principle that intelligence belonging to another state should not be released without its consent”.

On the case of Shaker Aamer it says:

Legal counsel for Shaker Aamer, the last remaining former UK resident held in Guantanamo Bay, also brought proceedings against the Foreign Secretary seeking disclosure of information that he believed may support his claim that he was tortured while in US custody. The UK searched for potentially relevant material of this nature, and this was also disclosed to the US authorities, who in turn disclosed it to Mr Aamer’s US-based security-cleared counsel representing him in proceedings before the US Guantanamo Review Task Force. We were informed in January 2010 that Mr Aamer had decided not to seek further disclosure, as the disclosure in the US had enabled his legal representatives to make the necessary representations on his behalf to the Task Force which was reviewing his case. The Government has continued to make clear to the US authorities that our request for Mr Aamer’s release and return to the UK stands. We have also sought welfare updates on him.

It also defended the continued use of diplomatic assurances.

Our policy continued to attract criticism in 2009 from some parts of the human rights community. We believe, however, that the assurances we have received in individual cases are robust and can be relied upon,not least because of the strong bilateral relationships enjoyed with the governments with which we have Deportation with Assurances (DWA) arrangements.

We always ensure that our work is compatible with our international human rights obligations, in particular the European Convention on Human Rights (ECHR) and the UN Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT). We will not seek to deport an individual where there are substantial grounds for believing that there is a real risk to that person of torture or other inhuman or degrading treatment or punishment, or that the death penalty will apply.

We have negotiated memoranda of understanding with Jordan, Libya, Lebanon and Ethiopia and an exchange of letters has taken place with the Algerian government. We will continue to negotiate new memoranda of understanding in 2010.

Moreover, we consider that our work on DWA has a positive effect on the human rights situation in the countries concerned, as it enables us to engage with these governments on human rights issues. In the countries with which we have memoranda of understanding, local NGOs have been appointed as monitoring bodies to follow up on the safety of those deported on their return.

The report continued with describing the capacity-building efforts with international parterns, describing for instance several projects that “have trained police forces to use modern evidencegathering techniques, which meet proper judicial standards. We have run such programmes in Saudi Arabia (see page 144), Pakistan and Libya. This helps to lower police reliance on obtaining confessions to convict suspects.”

Also:

The FCO has supported over 260 projects in the countries of the Muslim majority world on good governance; legal and prison reform; anticorruption; youth empowerment and employability; civil society development; education reform; and media reform and more open parliamentary reporting.

In allocating funds to Prevent projects, human rights are considered at both the application and implementation phases, to ensure that the projects will not have a negative impact on human rights, and that, where appropriate, human rights goals are included in the projects themselves.

Foreign Secretary David Miliband, speaking at an event in London to launch the report, said Britain’s commitment to uphold human rights had been under intense scrutiny.

“The question is not whether we should respect human rights in the process … rather the question is how human rights can be factored in to our approach,” he said.

Al-Zahrani v. Rumsfeld: motion for reconsideration filed

Al-Zahrani v. Rumsfeld, et al. is a civil action filed by the Center for Constitutional Rights (CCR) on behalf of the families and estates of two men who died at Guantánamo Bay in June 2006. The case is against the United States and 24 federal officials, including former Secretary of Defense Donald Rumsfeld, for their role in the arbitrary detention, torture and ultimate deaths of Yasser Al-Zahrani of Saudi Arabia and Salah Al-Salami of Yemen. The case was initiated in the District Court for the District of Columbia on June 10, 2008, and the defendants subsequently moved to dismiss. On February 16, 2010, the district court granted the defendants’ motions and dismissed the case. On March 16, 2010, CCR filed a motion for reconsideration of the dismissal on the basis of newly-discovered evidence from four soldiers stationed at the base at the time of the deaths, who describe a high-level cover-up and say they were ordered not to speak out.

Documents:

Opinion: Wittes & Goldsmith – hold KSM in indefinite detention

From the column in the Washington Post:

The Obama administration and its critics are locked in a standoff over whether to try Khalid Sheikh Mohammed and the other alleged Sept. 11 conspirators in a military commission or in federal court. Both sides are busily ignoring the obvious solution: Don’t bother trying them at all.
(…)
Eight and a half years after the Sept. 11 attacks, it is time to be realistic about terrorist detention. The number of Guantanamo trials will not, under the best of circumstances, be large. Instead of expending great energy on a battle over the proper forum for an unnecessary trial of Mohammed and his associates, both sides would do well instead to define the contours of the detention system that will, for some time to come, continue to do the heavy lifting in incapacitating terrorists.

ICJ Trial manual for criminal proceedings

This Manual provides trial observers with practical guidance on how to prepare for a trial observation mission, carry out the observation and write the follow-up report. It also provides a synthesis of the basic legal standards applicable in relation to (i) the right to a fair trial, (ii) the right to remedy of victims of human rights violations, and (iii) combating impunity. This is the first trial observation manual which includes analysis of international standards on the right to remedy of victims of human rights violations or combating impunity. 

European Institute for Security Studies papers on how the EU should deal with political islam

Amr Elshobaki, Gema Martin Muñoz – Why Europe must engage with political Islam

The process of coming to grips with the Islamist reality occurs against the backdrop of mounting apprehensions within European societies vis-à-vis the cultural visibility of Muslim communities living in Europe. Can Islamists become modern? Can they govern democratically?

Amr Elshobaki and Gema Martín Muñoz argue that there will be no credible democratic change without the participation of political Islam as a full player in the political process, that it is authoritarianism and not Islamism that breeds conservative and reactionary attitudes and that Islamist movements do not have some dogma-based impediment to becoming democratic. They consider Europeans to have an important role to play in the process of socialisation that Islamists have started undergoing over the last few years in the Arab world, and that the failure to integrate political Islam into mainstream politics risks domination by the far more dangerous Islamic religious establishment.

Caroline Goerzig: Engaging Hamas: rethinking the Quartet Principles.

The Middle East Quartet has laid out three conditions for the recognition of a  Palestinian government: the renunciation of violence, recognition of  Israel’s right to exist and a commitment to all agreements signed by the PLO and Israel.

Recently, the EU appears to have shifted its  language, demonstrating increasing flexibility in its application of the principles and emphasising the need for intra-Palestinian  reconciliation. But is this a step in the right direction?

It is, argues Carolin Goerzig. Insisting on Hamas’ adherence to the Quartet  Principles is self-defeating and lessens the chance of compliance.  Instead, a weakening of these requirements could directly contribute to a transformation of Hamas, and in turn, strengthen the prospects for  peace in the Middle East.

Sri Lanka ex-chief justice criticizes military trial for detained opposition leader

[JURIST] The former chief justice of the Supreme Court of Sri Lanka on Monday 15 March criticized the government’s treatment of detained opposition leader General Sarath Fonseka. Sarath Nanda Silva, who retired from the Sri Lankan Supreme Court last year, accused the government of using the military justice system to prevent Fonseka from participating in the upcoming elections scheduled for April 8, and of violating Fonseka’s civil rights. Silva’s charge implicates Fonseka’s presence in the military, rather than civilian system, which he says provides no recourse for Fonseka. Silva also said that Fonseka’s arrest was made in violation of the country’s constitution. The military has charged Fonseka with mixing politics with the military, and improperly awarding procurement contracts. Fonseka’s court-martial hearing begins on Tuesday 16 March. Fonseka is also scheduled for a hearing before the Supreme Court of Sri Lanka on April 26, where he will challenge his detention.

Also Monday, Sri Lanka criticized a US State Department report, released last week, which accused Sri Lanka of violating its citizens’ civil rights. Last month, the Sri Lankan Supreme Court rejected a petition to release Fonseka, who was taken into custody in early February. Also in February, Sri Lankan President Mahinda Rajapaksa, who defeated Fonseka in the January election, dissolved parliament and called for early parliamentary elections in an attempt to harness momentum from his victory to gain more seats in parliament for his political party, Freedom Alliance. The Sri Lankan Supreme Court ruled last month that Rajapaksa’s second term will begin in November. Fonseka has disputed the election results, citing vote counting irregularities and violence.