US Commission on Wartime Contracting: Correcting over-reliance on contractors in contingency operations

The Commission on Wartime Contracting concluded in its second interim report to Congress that the use of contractors has become a “default option,” pointing to the estimated $177 billion spent since 2001 on contractors in Afghanistan and Iraq. Yet vigorous oversight and management of contractors by the Pentagon, State Department and U.S. Agency for International Development is too often “an administrative after-thought.” 

The new report from the independent, bipartisan commission, titled “At What Risk? Correcting Over-Reliance on Contractors in Contingency Operations,” concludes that the United States has wasted tens of billions of the nearly $200 billion that has been spent on contracts and grants since 2002 to support military, reconstruction, and other U.S. operations in Iraq and Afghanistan.

The bipartisan commission is urging Congress to provide the agencies with more people and authority to control this industrial army, which at times has nearly equaled the size of U.S. forces in Afghanistan and Iraq.

“Unless Congress provides resources to oversee and evaluate contractor performance, waste will continue and national objectives will suffer.”  The investment “will be amply repaid in reduced waste and increased effectiveness” of war-zone contracting, it said.

Created by Congress in 2008, the eight-member commission has broad authority to examine wartime spending, including military support contracts, reconstruction projects and private security companies. The new report is the panel’s second interim study. A final report to Congress with recommendations for improving government contracting in war zones is due this summer.

George Bush calls off trip to Switzerland amid fear of violence at demonstration… or an arrest warrant

The Guardian reports that George W Bush has had to call off a trip to Switzerland next weekend amid planned protests by human rights groups over the treatment of detainees at Guantánamo Bay and the threat of a warrant for his arrest. The visit would have been Bush’s first to Europe since he admitted in his autobiography, Decision Points, in November that he had authorised the use of waterboarding on detainees at Guantánamo accused of links with al-Qaida.

The Guardian:

“Whether out of concern over the protests or the arrest warrant, it is an extraordinary development for a former US president to have his travel plans curtailed in this way, and amounts to a victory for human rights campaigners.”

Amnesty International has published its memorandum to the Swiss authorities here.

1. Acts of torture (and, it may be noted, other cruel, inhuman or degrading treatment and enforced disappearance) were committed against detainees held in a secret detention and interrogation program operated by the USA’s Central Intelligence Agency (CIA) between 2002 and 2009.

2. The CIA established this secret program under the authorization of then-President George W. Bush.

3. Since leaving office, former President George W. Bush has said that he authorized the use of a number of “enhanced interrogation techniques” against detainees held in the secret CIA program. The former President specifically admitted to authorizing the “water-boarding” of identified individuals, whose subjection to this torture technique has been confirmed.

4. Additionally, torture and other ill-treatment, and secret detention, by US forces occurred outside the confines of the CIA-run secret detention program, including against detainees held in military custody at the US Naval Base at Guantánamo Bay in Cuba, and in the context of armed conflicts in Iraq and Afghanistan.

5. George W. Bush was Commander in Chief of all US armed forces at the relevant times.

6. The Administration of George W. Bush acted on the basis that he was essentially unrestrained by international or US law in determining the USA’s response to the attacks in the USA on 11 September 2001. Among other things, President Bush decided that the protections of the Geneva Conventions of 1949, including their common article 3, would not be applied to Taleban or al-Qa’ida detainees.

7. George W. Bush, as Commander in Chief at the relevant times, if he did not directly order or authorize such crimes, at least knew, or had reason to know, that US forces were about to commit or were committing such crimes and did not take all necessary and reasonable measures in his power as Commander in Chief and President to prevent their commission or, if the crimes had already been committed, ensure that all those who were alleged to be responsible for these crimes were brought to justice.

8. The USA has failed to conduct investigations capable of reaching former President George W. Bush, and all indications are that it will not do so, at least in the near future.

9. The facts summarized above, matters of public record, are sufficient to give rise to mandatory obligations on Switzerland under international law (including but not limited to the UN Convention against Torture), should former US President George W. Bush enter Swiss territory to:
· launch a criminal investigation;
· arrest former President Bush or otherwise secure his presence during that investigation; and
· submit the case to competent authorities in Switzerland for the purposes of prosecution if it does not extradite him to another state able and willing to do so.

EJIL Talk analyzes whether Bush is entitled to the immunity which, under international law, attaches to official acts of those who act on behalf of a State and prevents foreign prosecutions for those acts.

Efforts to Prosecute Blackwater Are Collapsing

The NY Times reports that nearly four years after the federal government began a string of investigations and criminal prosecutions against Blackwater Worldwide personnel accused of murder and other violent crimes in Iraq and Afghanistan, the cases are beginning to fall apart, burdened by a legal obstacle of the government’s own making.

In the most recent and closely watched case, the Justice Department on Monday said that it would not seek murder charges against Andrew J. Moonen, a Blackwater armorer accused of killing a guard assigned to an Iraqi vice president on Dec. 24, 2006. Justice officials said that they were abandoning the case after an investigation that began in early 2007, and included trips to Baghdad by federal prosecutors and F.B.I. agents to interview Iraqi witnesses.

The government’s decision to drop the Moonen case follows a series of failures by prosecutors around the country in cases aimed at former personnel of Blackwater, which is now known as Xe Services. In September, a Virginia jury was unable to reach a verdict in the murder trial of two former Blackwater guards accused of killing two Afghan civilians. Late last year, charges were dismissed against five former Blackwater guards who had been indicted on manslaughter and related weapons charges in a September 2007 shooting incident in Nisour Square in Baghdad, in which 17 Iraqi civilians were killed.

Interviews with lawyers involved in the cases, outside legal experts and a review of some records show that federal prosecutors have failed to overcome a series of legal hurdles, including the difficulties of obtaining evidence in war zones, of gaining proper jurisdiction for prosecutions in American civilian courts, and of overcoming immunity deals given to defendants by American officials on the scene.

Karzai decree to eliminate private security within 4 months

Afghan President Hamid Karzai issued a decree on Tuesday setting a deadline of four months to disband private security companies — a move likely to dismay NATO and the U.S. military that rely on such firms to protect convoys and bases.

According to the decree, security contractors currently working in Afghanistan will have to either join the Afghan police force or cease operations by the deadline. Firms being disbanded either could sell their weapons to the Afghan government or take the equipment with them as they leave if the companies were properly registered. Unregistered firms would have their weapons confiscated, it said. The visas of their employees would also be terminated.

It does provide an exception for private security firms working inside of compounds used by international groups, including embassies, businesses and non-governmental organizations.

“They will have to stay inside of the organization’s compound and will have to be registered with the Interior Ministry,” the decree states.

All security outside of these compounds will be provided by Afghan security forces, as will all security for supply convoys for international troops, the decree says.

The decree said the private security firms were being banned to avoid the misuse of weapons which had caused “horrific and tragic incidents.”

The Pentagon called the deadline “very challenging” but said the United States would work with the Afghan government and seek to improve oversight and management of private security firms, long an irritant to Afghans.

In announcing a fairly near-term deadline for the shutdown, the president appeared to preempt efforts by NATO’s International Security Assistance Force to register private security contractors and set standards for their behavior.The timetable was so abbreviated that analysts questioned whether it might be delayed and changed as more detailed rules to carry it out were negotiated.

The Afghan Interior Ministry has 52 security firms licensed, but some older contracts are still being completed by unlicensed firms, according to the U.S. military. About half of the companies are Afghan-owned.

About 37 companies are working with the U.S. government, totaling about 26,000 armed security contractors. The majority of those work for the military, though some are employed by the State Department and the U.S. Agency for International Development, according to the military.

US court dismisses 1998 Sudan missile strike suit

An appeals court on Tuesday 8 June upheld (click here to read the decision) the dismissal of a $50 million lawsuit against the United States over then-President Bill Clinton’s 1998 decision to order a missile attack on a Sudanese pharmaceutical plant.

The appeals court dismissed the case ruling that it involved a political question covered by a legal doctrine, which means the suit cannot be reviewed by the judicial branch.

“If the political question doctrine means anything in the arena of national security and foreign relations, it means the courts cannot assess the merits of the president’s decision to launch an attack on a foreign target,” Judge Thomas Griffith wrote in the opinion. “Under the political question doctrine, the foreign target of a military strike cannot challenge in court the wisdom of retaliatory military action taken by the United States,” he concluded.

Background:

Clinton ordered the attack on the factory and a training camp in Afghanistan in retaliation for the bombings of U.S. embassies in Kenya and Tanzania that had been carried out days earlier by Osama bin Laden’s al Qaeda network.

Clinton said the El-Shifa Pharmaceutical Industries plant in North Khartoum was believed to be associated with bin Laden’s network and to be involved in the production of materials for chemicals weapons. The plant’s owners denied it was a chemical weapons facility or in any way connected to bin Laden or his network. They said the destroyed plant had been Sudan’s largest manufacturer of medicinal products.

The owners sued the U.S. government in federal court in Washington for unjustifiably destroying the plant, for failing to compensate them for the facility’s destruction and for defaming them by saying the plant had ties to bin Laden.

(HT Georgetown SLB)

Canada: new bill on “investigative hearings” and “preventive detention”

Craig Forcese (University of Ottawa, Law) has a post on a bill on investigative hearings and preventive detention, which is tabled by the Canadian Government.

Quote:

In keeping with efforts in the last several sessions of Parliament, the government has tabled a bill seeking to re-enact the investigative hearing and so-called “preventive detention” (technically, recognizance with conditions) provisions that expired in 2007.

The bill’s clauses are mostly identical to these expired sections, despite Supreme Court jurisprudence since 2001 that means some of these provisions cannot be read literally.  It is unfortunate that the government has not seen fit to, e.g., emphatically specify that the derivative use immunity extended by clause 83.28(10) to extradition and deportation proceedings.  Such an extension is necessary as a constitutional matter, per the Supreme Court’s holding in the 2004 Air India-related case.

Will Justice have to pay money to a terrorist organization?

Michael Isikoff has a post on Newsweek on the dilemma posed by the recent decision that President Bush’s warrantless-wiretapping program was illegal.

Quote:

“All things being equal, DoJ would love nothing more than to let stand a federal judge’s recent decision that President Bush’s warrantless-wiretapping program was illegal, thereby avoiding further legal skirmishes over one of the Bush administration’s most divisive legacies. But unless they appeal last month’s landmark decision by Judge Vaughan Walker, the US government may be forced to pay damages into the bank account of one of the plaintiffs in the case: an Islamic charity that has been formally declared a global terrorist organization.

Can the Justice Department pay money to a terrorist organization? And if it did, would it be committing the federal crime of providing “material support” to terrorists? “They’ve got a dilemma,” says Jon Eisenberg, lawyer for the Al Haramain Islamic Foundation, a now defunct charity that sued the U.S. government more than four years ago, alleging that its rights were violated by the Bush wiretapping program. Nevertheless, Eisenberg adds, “in this country, if you violate the law you have to pay damages.”

The stark nature of the choice was underscored late Friday night when Eisenberg and other lawyers in the case filed a motion, at Judge Walker’s request, proposing a final judgment in the case now known as Al-Haramain Islamic Foundation v. Obama. Walker had asked for the filing in light of his March 31 finding that, as a result of the Bush wiretapping program, Al Haramain and two of its lawyers were subjected to “unlawful warrantless electronic surveillance” for 204 days between Feb. 19 and Sept. 9, 2004.

The plaintiffs’ proposed order: the feds should pay a total of $610,000, or $203,400 per plaintiff. (The plaintiffs reached this figure using the maximum allowable damages of $100 a day for violations under the Foreign Intelligence Surveillance Act. That comes to a total of $20,400 per plaintiff. Then, using a standard multiplier for civil lawsuits, they added punitive damages of nine times that amount, or $183,600 per plaintiff.) To be sure, even Eisenberg concedes the issue is largely “symbolic” since Al Haramain—a group once accused by the Treasury Department of aiding Al Qaeda—has long since shut its doors. Any damages that are paid will likely end up going to a frozen or inactive bank account, he adds. “No money will end up going into the hands of actual terrorists,” he stresses.”

Qatari diplomat causes security alert on US flight

A Qatari diplomat who caused a security alert aboard a United Airlines flight after smoking in a toilet will not be charged with a crime.

Qatar’s ambassador to the United States called the incident aboard a flight from Washington to Denver late on Wednesday 7 April a “mistake” and said the man, who had diplomatic immunity, was traveling on official business.

He was caught smoking in a toilet and made a remark that was perceived as a threat on the plane, officials said. No smoking is allowed on commercial flights in the United States.

U.S. officials have ramped up security substantially since Christmas Day last year after a Nigerian man with explosives in his underwear allegedly tried to blow up a transatlantic flight as it approached Detroit.

A spokeswoman at Brown Lloyd James, a firm which represents the Qatari embassy, said the diplomat, Mohammed Al-Madadi who is a Third Secretary, had been released from custody and would not be charged.

F-16 fighter jets escorted the United Airlines Boeing 757 plane, with 157 passengers and six crew, to Denver International Airport and the diplomat was taken into custody.

Qatar’s ambassador to Washington, Ali bin Fahad al-Hajri, said the man posed no security threat.

OBAMA BRIEFED

President Barack Obama was briefed on the disturbance and a White House official said actions were taken to ensure travelers ‘ safety.

Passengers aboard United Airlines flight 663 said no struggle took place and the suspect appeared to be speaking calmly to a U.S. air marshal in the first class cabin.

The first reports of Wednesday’s alert suggested a more serious incident. ABC News, citing federal law enforcement officials, reported air marshals subdued a man who authorities say tried to “light his shoes on fire” on the flight.

Italian prosecutor is tracking convicted CIA agents

Jeff Stein reports at the Washington Post that the Italian prosecutor who won convictions against nearly two dozen CIA operatives for kidnapping last year is tracking their movements via cell phone and credit card records.

Armando Spataro, the chief prosecutor in Milan, said he regularly signs subpoenas, which do not require a judge’s approval, for information on the whereabouts of the 23 Americans, all but one CIA operatives, who were convicted of kidnapping after the discovery of their 2003 “rendition” of an al-Qaeda suspect known as Abu Omar.

“The mobile phone companies give us the data without any problems,” Spataro said via e-mail on Sunday. “But we don’t have permanent access to the database of the companies.”

“For the credit cards,” he added, “very often the [foreign] companies write us that they don’t have the data So, if we need them, we have to send a request for cooperation to other states.”

Also escaping notice here was Spataro’s March 18 motion to strip three of the defendants of diplomatic immunity and his request for bench warrants for their arrest. The three, listed as U.S. State Department officers at the U.S. Embassy in Rome in 2003, were put beyond the reach of Spataro by a judge who said their diplomatic status protected them from arrest, even if they were convicted in the kidnapping.

But Spataro argued that since they were actually CIA officers using State Department cover to carry out a “hateful” crime, they should be subject to arrest.

The targets of Spataro’s motion are Jeffrey Castelli, Betnie Medero and Ralph Russomando, all who were listed as diplomats at the U.S. Embassy in February 2003, when a CIA team snatched an al-Qaeda suspect known as Abu Omar off a street in Milan and “rendered” him to Egypt for interrogation. Castelli was the CIA’s Rome station chief.

“Castelli, Medero and Russomando do not deserve being covered by diplomatic immunity as at the time of Abu Omar’s abduction,” Spataro argues. “Even if they were diplomatic agents according to the Vienna Convention, they were not really acting as diplomatic agents, but as members of the US intelligence, a qualification for which they were never ‘accredited’ in Rome.”

Italy’s Ministry of Justice has refused to ask Washington to extradite the defendants.

Court says Bush illegally wiretapped two Americans

A federal judge on Wednesday 31 March said the George W. Bush administration illegally eavesdropped on the telephone conversations of two American lawyers who represented a now-defunct Saudi charity.

The lawyers alleged some of their 2004 telephone conversations to Saudi Arabia were siphoned to the National Security Agency without warrants. The allegations were initially based on a classified document the government accidentally mailed to the former Al-Haramain Islamic Foundation lawyers. The document was later declared a state secret and removed from the long-running lawsuit weighing whether a sitting U.S. president may create a spying program to eavesdrop on Americans’ electronic communications without warrants.

“Plaintiffs must, and have, put forward enough evidence to establish a prima facie case that they were subjected to warrantless electronic surveillance,” U.S. District Judge Vaughn Walker ruled, in a landmark decision. Even without the classified document, the judge said he believed the lawyers “were subjected to unlawful electronic surveillance” in violation of the Foreign Intelligence Surveillance Act, which requires warrants in terror investigations (click here for more extracts of the decision).

It is the first ruling addressing how Bush’s once-secret spy program was carried out against American citizens. Other cases considered the program’s overall constitutionality, absent any evidence of specific eavesdropping.

The Obama administration’s Justice Department staunchly defended against the lawsuit, which challenged the so-called Terror Surveillance Program that Bush adopted in the aftermath of the 2001 terror attacks. The classified document was removed from the case at the behest of both the Bush and Obama administrations, which declared it a state secret.

Judge Walker likened the department’s legal tactics as “argumentative acrobatics.” He said counsel for attorneys Wendell Belew and Asim Gafoor are free to request monetary damages.

Their lawyer, Jon Eisenberg, said in a telephone interview that “the case is not about recovering money.”

“What this tells the president, or the next president, is, you don’t have the power to disregard an act of Congress in the name of national security,” Eisenberg said.

Because of the evocation of the state secrets privilege, Walker had ruled the lawyers must make their case without the classified document. So Eisenberg amended the case and cited a bevy of circumstantial evidence. Walker ruled that evidence shows that the government illegally wiretapped the two lawyers as they spoke on U.S. soil to Saudi Arabia. Walker said the amended lawsuit pieces together snippets of public statements from government investigations into Al-Haramain, the Islamic charity for which the lawyers were working, including a speech about their case by an FBI official.

Under Bush’s so-called Terrorist Surveillance Program, which The New York Times disclosed in December 2005, the NSA was eavesdropping on Americans’ telephone calls without warrants if the government believed the person on the other line was overseas and associated with terrorism. Congress, with the vote of Obama — who was an Illinois senator at the time — subsequently authorized such warrantless spying in the summer of 2008. The legislation also provided the nation’s telecommunication companies immunity from lawsuits accusing them of being complicit with the Bush administration in illegal wiretapping.

In a similar case, the Center for Constitutional Rights had a suit arguing that the government wiretapped attorney-client conversations (though unlike al-Haramain, they never got a wiretap log reflecting those conversations, nor were they able to make a prima facie case they were wiretapped). On 30 March, they appealed their suit to the Supreme Court. From their press release:

Last night, the Center for Constitutional Rights (CCR) asked the Supreme Court to take up its warrantless surveillance case, Wilner v. National Security Agency (NSA). CCR and co-counsel argue that the Executive Branch must disclose whether or not it has records related to the wiretapping of privileged attorney-client conversations without a warrant. Lawyers for the Guantánamo detainees fit the officially acknowledged profile of those subject to surveillance under the former administration’s program, and the Executive Branch has argued in the past that it has a right to target them.

The plaintiffs in the case are 23 attorneys who have represented Guantánamo detainees. They filed a Freedom of Information Act (FOIA) request seeking records of any surveillance of their communications under the NSA’s warrantless surveillance program, which began after 9/11 but was only disclosed to the public in December 2005. The government refused to either confirm or deny whether such records existed, and the lower courts refused to order the government to confirm whether it had eavesdropped on attorney-client communications. The question before the Supreme Court is whether the government can refuse to confirm or deny whether records of such surveillance exist, even though any such surveillance would necessarily be unconstitutional and illegal.

“Illegal surveillance of attorney-client communications makes it nearly impossible to challenge other illegal behavior by the government,” said Shayana Kadidal, Senior Managing Attorney of the CCR Guantánamo Global Justice Initiative. “The new administration has no legal basis for refusing to come clean about any violations of attorney-client privilege by the NSA.”

The petition filed last night includes declarations from the Guantánamo attorneys detailing how the threat of illegal surveillance by the NSA has made it harder for them to gather evidence in their cases from witnesses overseas, including family members of detainees, who are often unwilling to speak freely on the phone given the threat that the government may be listening in.