Less Than a Week in Office, Trump May Erase Obama’s Real “Progress” in War on Terror

Today, New York Times journalist Charlie Savage published a three-page draft of an executive order that President Trump is preparing to sign. In short, the draft order would undo many of the actual reforms to the war on terror implemented by the Obama administration. (I say “actual” because many national security observers give Obama too much credit and ignore the fact that he, as a former constitutional law professor and Democrat, institutionalized the global war on terror, making the US’s perpetual war footing much more difficult to end.)

Trump’s draft order, if signed, would:

  • revoke Executive Order 13491 (January 22, 2009), which ended the Bush’s administration’s practice of torture, subjected interrogation methods to the rules outlined in the Army Field Manual, ordered the closure of the CIA’s notorious “black sites” where countless individuals were tortured and deprived of basic rights, and granted the International Committee of the Red Cross access to all detainees;
  • revoke Executive Order 13492 (January 22, 2009), which ordered the closure of Guantanamo Bay (and served as the Obama administration’s source for not sending any new detainees to the facility in Cuba) and ordered a status review of all Guantanamo detainees;
  • consider the conditions at Guantanamo Bay to be “legal, safe, and humane” and “consistent with international conventions regarding the laws of war”;
  • declare that Guantanamo Bay is “in the interests of the United States… as a critical tool in the fight against international jihadist terrorist radical Islamic groups”;
  • affirm the Bush-Obama doctrine that the United States is engaged in a borderless war with al-Qaeda, the Taliban, “associated forces,” and “those who fight on behalf of or provide substantial support [an Obama term; emphasis mine] to or harbor such groups”;
  • embrace the “enemy combatant” term created by Bush’s lawyers (and abandoned by Obama’s) to justify indefinite detention;
  • allow the US government to send “newly captured alien enemy combatants” to Guantanamo;
  • suspend any existing efforts to transfer detainees out of Guantanamo until the Trump administration conducts its own review to determine if the transfers are “in the national security interests of the United States”;
  • review the interrogation procedures outlined in the Army Field Manual and authorize Secretary of Defense James Mattis to modify and add to these stipulations;
  • allow CIA to reopen its notorious “black sites” where countless individuals were tortured and deprived of basic rights;
  • resurrect Executive Order 13440 (July 20, 2007), which allowed CIA to resume some of its torture methods not specifically listed as legitimate war crimes after a 2006 Supreme Court case made CIA torturers eligible for war crime prosecutions and thus temporarily put the program on hiatus;
  • consider preferring the use of military commissions to civilian courts in terrorism cases; and
  • make the Trump administration’s chosen term for the global war on terror the “fight against radical Islamism.”

Whether or not all of these policy pledges will turn into actual policy is to be determined. But what’s significant in the draft order – what the draft order reveals – is Trump’s more-than-rhetorical willingness to resurrect some of the most egregious policies of the Bush administration, only some of which Obama did away with, to his credit. 

Fordham Students Condemn Revelations in the ‘Drone Papers’

Drone Papers

Originally published in the Fordham Observer.

In what NSA whistleblower Edward Snowden called the “most important national security story of the year,” The Intercept has published an eight-part exposé about the U.S. drone assassination program based on documents provided by a whistleblower within the intelligence community. The Drone Papers reveal the inner workings of President Obama’s covert kill/capture program between 2011 and 2013, a key window in the evolution of the drone wars.

Reporter Ryan Devereaux, in “Manhunting in the Hindu Kush,” part five of The Intercept’s investigation, describes Operation Haymaker, a campaign against Taliban and al Qaeda forces in northeastern Afghanistan. According to the documents, the term “jackpot” refers to an operation that kills its intended target, and anyone else killed in the airstrike is dubbed an “enemy killed in action” (EKIA) until proven otherwise. However, Article 50 of Additional Protocol I of the Geneva Conventions states, “In case of doubt whether a person is a civilian, that person shall be considered to be a civilian.”

Thomas H. Lee, Leitner Family Professor of International Law, considers this classification a possible violation of international law.“If a strike is on a military target in a military setting, and the bomber classifies everyone killed who is proximate to the target as ‘enemy combatant’ killed in action, does it violate the Law of War?  Arguably yes, under a strict reading of the Additional Protocol, which the United States did not ratify in large part because of concerns about issues just like this,” he said.

Ahmad Awad, Fordham College at Lincoln Center (FCLC) ’17, a history major, called the government’s EKIA classification “very, very bizarre. It’s usually ‘you’re innocent until proven guilty.’ It’s not that you’re an enemy… If they don’t have substantial evidence to prove that it is a potential enemy of the United States and they’re just labeling people as enemies, that’s horrible. That’s not right. That should not be done for people who possibly are just innocent civilians in one of these nations that we are authorizing strikes in.”
Jeanelle Augustin, FCLC ’16, an anthropology major, agreed: “It sounds totally contrary to what we say our own justice model is here in America.”Sapphira Lurie, FCLC ’17, a comparative literature major, said, “The term ‘enemy killed in action’ had to be invented to imply that those murdered in drone strikes could even be considered a possible threat. So here, the terminology points towards the editorial authority used by imperialists to justify their attacks.”

One document, detailing the period between May and September 2012, reveals that there were 19 jackpots and 155 EKIAs, meaning that almost nine out of 10 people killed weren’t the intended targets. Just months before that, President Obama defended what he called “very precise, precision strikes,” stating that “actually drones have not caused a huge number of civilian casualties.”

“In any other context, that would be a failing grade,” Augustin said. Shady Azmy, FCLC ’19, a psychology major, agreed: “Those are terrible statistics.” “That makes me feel that this drone program that we are doing is not that effective. It’s not an accurate program… that’s a very high collateral damage compared to what they’re saying about low collateral damage. It’s the complete opposite of what they’re intending to do,” Awad said.

The “low collateral damage” that Awad referred to is another of the Drone Papers’ revelations. In a May 2013 speech about drone policy, President Obama said, “there must be near-certainty that no civilians will be killed or injured” before a strike is authorized. But one document, described by journalist Cora Currier in “The Kill Chain,” part three of the investigation, shows that the “near certainty” principle isn’t actually applied to civilians. Currier reports that there must be “near certainty” that the target is present – not that no civilians will be killed or injured – and a “low CDE [collateral damage estimate],” meaning a low chance of civilian death or injury.

The Bureau of Investigative Journalism has been documenting this “collateral damage” for years, finding that between 159 and 261 civilians have been killed by drone strikes in Yemen and between seven and 52 in Somalia since 2002.

Augustin said, “If we’re not sure that civilians may or may not die, it seems to me as though we would be committing terror to those civilian populations.” Alvarez offered a metaphor: “It sounds like a guess and check. That sounds like when I’m writing code, and when I screw up the code, I just have to do it again.” And Awad asked, “What do they consider a low collateral damage estimate? How many innocent lives are lost?”

That same document, which reveals the administration’s two-step process for creating and acting on its kill list, shows that once President Obama approved a target to be killed, Joint Special Operations Command (JSOC) had at the time (and may still have) a 60-day window for lethal action in Yemen and Somalia in 2011 and 2012. The administration has nonetheless defended the drone program as a means to prevent “imminent threats” to the United States.

Awad said, “I don’t know how imminent the threat can be if they’re given a 60 day window. I think that an imminent threat would be one that we have substantial evidence to prove that he or she is within a short period of time, has the capability of either attacking the U.S. mainland or attacking a U.S. embassy, or that American civilians are at stake.” Daniel Alvarez, FCLC ’19, a philosophy major agreed: “I feel like that’s way too much time.”

While a 60-day authorization window may seem to Awad and Alvarez an unreasonably long period of time, Lee said it may not violate international law: “The proportionality/tailoring aspects of international law of war are very nebulous, but two months, as opposed to two years, seems okay unless it straddles a peace event that can reasonably be viewed as a material change in the circumstances.”

In the documents obtained by The Intercept, there’s a bevy of corporate language used to describe aspects of the assassination program: the “tyranny of distance,” a reference to the great lengths drones must fly from their bases to targeted countries; “baseball card,” a reference to a slide of information about a candidate for assassination that is presented to members of the chain of command; a slide titled “Manhunting Basics”; “Arab features” to describe someone being targeted; “Find, Fix, Finish,” JSOC’s assassination doctrine; and of course jackpot and EKIA.

Augustin called this language “definitely a mechanism to dehumanize people.” Awad said he was “shocked” by these terms. “It kind of makes it seem that this is a game, and it’s a hunting game,” he said.

The documents are also a further confirmation of CIA Director and former counterterrorism adviser John Brennan’s, FCRH ’77, role in the drone program, specifically his top role in deciding whom should be killed, portrayed in an illustration (pictured below) by The Intercept‘s Josh Begley. Fordham University awarded Brennan an honorary degree in 2012 and rejected a petition to revoke that degree this past May.

 

Chain of Command

 

 

CIA’s Human Rights Violations Honored By Fordham University

Students and faculty at Fordham University gather in orange jumpsuits to petition President McShane to revoke CIA Director John Brennan’s honorary degree. (Photo: Louie Dean Valencia-García)

Originally published at Huffington Post.

In May just before students and faculty left school for the summer – we are back now – Fordham University President Joseph M. McShane, S.J., announced his much anticipated response to the school’s human rights advocates: the Board of Trustees had voted not to revoke CIA Director John Brennan’s honorary degree. According to Bob Howe, McShane’s press secretary, the vote was unanimous.

After the release of the Senate Intelligence Committee’s report on CIA torture in December 2014, seven Fordham professors formed Fordham Against Torture (FAT), an ad-hoc committee that petitioned McShane with over 730 signatures to revoke Brennan’s honorary degree. It was awarded to Brennan in 2012 when he delivered Fordham’s commencement address, despite protests and a petition by faculty and students.

In his email to FAT, McShane wrote, “While the Board and I condemn torture and extrajudicial imprisonment in the strongest possible terms, as a public servant, Mr. Brennan does not set the policies that have led us to this place, but rather is responsible to the elected officials, including the President, who have. The President, his predecessor, and Congress are legally responsible for the creation of the policies you—indeed all of us—find so shocking.”

McShane’s response embodied classic institutional cover-up for wrongdoing (one often employed by the Obama administration): condemn the bad thing (We oppose torture) and offer a lukewarm excuse for not correcting it (Mr. Brennan isn’t responsible). It’s an easy way out, feeding the establishment media sound bites to make the administration seem morally righteous and free itself from responsibility.

Claiming that Brennan isn’t responsible for the reprehensible counterterrorism policies of the Bush and Obama administrations is like claiming that the FBI didn’t spy on civil rights activists. Brennan is widely known for developing “kill lists” of people targeted for assassination by the U.S. government and the controversial practice of “signature strikes,” drone strikes on unidentified people targeted for their behavioral patterns or for carrying a cell phone SIM card associated with an alleged “terrorist.” In a letter to the Ram, one of Fordham’s undergraduate newspapers, ex-CIA officer Ray McGovern – like Brennan, a Fordham graduate – wrote, “Brennan is now the administration’s strongest advocate of extrajudicial killing of U.S. citizens by drones.” That apparently doesn’t give McShane pause about honoring Brennan.

But even if McShane’s basis for not revoking Brennan’s honorary degree – that Brennan is not responsible for the creation of “shocking” policies – were true, his degree should still be revoked on the grounds that he didn’t, in protest of war crimes, refuse to carry out his superior’s orders. David Myers, history professor at Fordham, offered another reason for revocation on the basis that Brennan simply followed orders: “If you simply look at the last 40 years of this country’s history, subordinates or officers in the presidential administration have been held criminally responsible even though the president was directing them, even though they were just following orders.”

After citing the 1989 massacre of six Jesuits in El Salvador in which the CIA was complicit, McShane wrote, “Do not for a minute believe that honoring John Brennan is the same as honoring the institution for which he works, nor its checkered history.” The phrase “the institution for which he works” makes Brennan sound like some low-level CIA officer, furthering the narrative that Mr. Brennan isn’t responsible. The obvious truth is that John Brennan, arguably the architect of the modern-day CIA, runs the CIA and has directly contributed to its “checkered history.” So while honoring him in 2012 doesn’t honor a massacre in 1989 in which he probably played no role, it certainly does honor the human rights violations committed by the CIA since he began to hold high-level positions (in 1999, when Brennan was appointed chief of staff for then-head of CIA George Tenet). It is thus telling that McShane didn’t condemn any recent specific examples of human rights violations by the CIA, such as the more than 400 civilians killed by its drone program in Pakistan, because then he would have to admit to honoring a war criminal.

My initial reaction to McShane’s response was one of frustration and embarrassment for attending a university that honors a war criminal. Upon further reflection, I’ve realized that I have no reason to be embarrassed. What the Board of Trustees decides does not define Fordham. We, the students and faculty, define Fordham. And I couldn’t be any more proud to work with a community so dedicated to human rights and social justice.

Also, while you’re at it, get rid of Bill Cosby’s honorary degree, too.

Obama’s Crackdown on Whistleblowers: Petraeus Plea Deal Reveals Double Standard for Leaks

Photo: Chip Somodevilla/Getty

Photo: Chip Somodevilla/Getty

Originally published at Huffington Post.

“There are indeed consequences for those who believe they are above the laws that protect our fellow officers and enable American intelligence agencies to operate with the requisite degree of secrecy,” then-CIA director David Petraeus told his employees in 2012 of the successful conviction of CIA whistleblower John Kiriakou, the only government official to be jailed for any reason related to CIA torture. And in a 2010 interview with David Gregory on Meet the Press, Petraeus said of whistleblower Chelsea Manning’s leaking of classified war documents to WikiLeaks, “This is beyond unfortunate.  I mean, this is a betrayal of trust.” Kiriakou, after serving twenty-three months in prison, is currently finishing his three-month house arrest, and Manning is serving her thirty-five-year prison sentence.

Meanwhile, in March Petraeus agreed to a lenient plea deal which will likely only result in two years’ probation and a $40,000 fine for giving classified information to his mistress and authorized biographer Paula Broadwell. He also has, as the New York Times‘ Matt Apuzzo writes, “a lucrative post-government career” as a partner in a private equity firm. Not only does Petraeus go on speaking tours about national security, but he has also continued to advise the Obama administration on its strategy in Iraq. This stark difference in the way government officials are prosecuted and treated after leaking classified information reveals a double standard for leaks: serious criminal consequences are brought on only those who expose government wrongdoing.

High-level government officials like Petraeus are immune from these consequences because the information they reveal is in the government’s interest. By contrast, low-level employees (like Kiriakou, Manning and NSA whistleblower Edward Snowden) who reveal government corruption, abuse and wrongdoing are prosecuted to the fullest extent because the government wants this information kept secret, and because these low-level employees don’t have the political resources and connections to fight back. The government uses these prosecutions as a method of deterrence for future whistleblowing, giving the message that if you leak classified information that makes the government look bad, you will spend time in prison. (Luckily for the public, this threat didn’t deter Snowden: since the day he went public via the Guardian, he has said numerous times that he is willing to face any consequences provided that he is guaranteed a fair trial.)

Government officials leak classified information without authorization to journalists all the time. But this information makes the administration look good. It details successful military operations overseas or productive discussions with foreign governments. For example, the Obama administration has been accused of intentionally inviting a filmmaker of Zero Dark Thirty, a film spewing U.S. war propaganda, to a talk by former CIA director Leon Panetta who disclosed classified information. Panetta was never prosecuted.

Neither was James Cartwright, a retired Marine general who gave highly classified information to a Times reporter about a joint U.S.-Israeli effort to cripple Iran’s nuclear centrifuges through a cyber attack. The information he leaked is not very different from that leaked by Jeffrey Sterling, an African American CIA officer convicted in January for leaking classified information to Pulitzer Prize-winning Times reporter James Risen about a CIA effort to undermine Iran’s nuclear program. In March, Sterling’s lawyers requested a reconsideration of his conviction considering the lenient treatment given to both Petraeus and Cartwright. “The principal difference between Mr. Sterling and Generals Petraeus and Cartwright are their respective races and rank,” Sterling’s lawyers argue. “Like General Cartwright, General Petraeus is a white, high ranking official […] The government must explain why the justice meted out to white generals is so different from what Mr. Sterling faced.”

As investigative journalist and Intercept co-founder Jeremy Scahill said at the paperback launch of his book Dirty Wars “[current CIA director] John Brennan leaked so much after the Osama bin Laden raid that I wanted to buy him a Depends diaper.” Every detail leaked to the press by Brennan about the bin Laden raid turned out to be false. He revealed them to make the story more jingoistic, to make the military look good. But he was never prosecuted or held accountable for leaking this classified – albeit false – information.

There is another important difference in how the double standard works: unlike Petraeus and Cartwright, low-level whistleblowers get charged with violating the Espionage Act of 1917. The Justice Department under President Obama has used the Espionage Act seven times (Thomas Drake, Shamai Leibowitz, Manning, Stephen Kim, Sterling, Kiriakou and Snowden) in leak prosecutions – more than double the three times that all prior administrations combined have used it. Violating the Espionage Act is a strict liability offense, which means that you can’t mount a defense, so a court cannot consider a person’s intent for leaking classified information. As Jesselyn Radack, a lawyer for Snowden, Kiriakou and Drake, said on Democracy Now!, “It does not matter whether you were leaking secrets to a foreign enemy for profit or whether you were giving information to journalists in the public interest to give back to the people who have a right to know what’s been done in their name.”

No one in government raises an eyebrow when propagandist information is leaked to the media. This is exactly the information that the government wants the public to know. In this environment of state-sponsored journalism wherein the only information leaked to the public is that which the government authorizes the public to know, we as members of the public must demand transparency and accountability. This is why independent journalism – which should be inherently adversarial to the state – is so utterly necessary. It serves as the only challenge to the government’s line. Otherwise, high-level officials like David Petraeus are free to profit from selling propaganda (“The hard-earned progress of the Surge was sustained for over three years”) and lies about the U.S. government while Chelsea Manning faces three decades in prison for exposing the wrongdoing that people like Petraeus wish to keep secret from the public.