By Cynthia Banham
Centre for International Governance and Justice
We thank the editors of The Interpreter for their permission to post Cynthia’s article here.
The Open Society Foundation’s recent report detailing the scale of the Bush Administration’s extraordinary rendition program and the extent of cooperation by 54 allies reveals yet again the excesses in the way liberal democracies responded to the al Qaeda terrorist threat in the decade after the 9/11 attacks.
Yet in many ways the actions of the governments that came after those of George W Bush, Tony Blair and Gordon Brown tell us more about the lengths to which modern liberal democracies will go in order to defend themselves against terrorist threats. These governments did not face imminent national security crises, yet their willingness to subvert the rule of law has been no less flagrant.
It’s instructive to compare two controversial counter-terrorism policies of the post-9/11 decade era through this lens. The first is the Obama Administration’s targeted killings program, under which terrorist suspects are taken out by drone strikes without any judicial process. The other is the Cameron Government’s Justice and Security Bill, which would introduce secret courts for civil cases involving national security – in particular, claims of wrongdoing by British intelligence agencies.
There is something eerily similar about the counter-terrorism policies of the Obama Administration and the Cameron Government. Both policies were borne out of the harsh condemnation of the counter-terror policies of previous governments – in the case of the US, the CIA’s use of torture; in the UK’s case, the complicity of M15 and M16 in torture.
Yet neither leader is faced with the sort of extreme public fear and general sense of imminent disaster that his predecessors had to deal with. Both policies emerge directly from the outrage generated by the involvement the two countries’ intelligence services had in the use of torture after 9/11. And in both cases, the response is to weaken the rule of law rather than to strengthen it.
There is a bleak irony in President Obama, who banned the use of torture upon taking office, finding it more palatable to simply kill terrorist suspects rather than detain them. But what has caused almost as much consternation as Obama’s policy of using drone strikes to exterminate suspected al Qaeda operatives is the lack of transparency his Administration has employed in doing this. Especially when one of those suspects was an American citizen — Anwar al-Awlaki, killed by drone strike in Yemen in 2011.
As the New Yorker described it, the concern about al-Awlaki had nothing to do with his guilt or innocence. Rather the disquiet concerns the question of ‘at what point he crossed the line and became killable without any judicial proceedings’, a question the Obama Administration has refused to answer.
This picture changed slightly last month with the ‘leaking’ to NBC News of a confidential Justice Department memo. The memo purported to set out the legal basis for when the US Government can order a lethal strike of this kind. Its contents reveal a legal justification just as contested as that which the Bush Administration relied on to torture terrorist suspects.
Basically, the Obama Administration has laid down three conditions for when an American citizen suspected of being a senior al Qaeda (or al Qaeda-affiliated) operative can be killed by drone strike: they must pose an ‘imminent threat’, their capture must be ‘infeasible’, and the killing must be ‘consistent with applicable law of war principles’.
Lawyers have been quick to point out the weaknesses in such a legal construction. In the first instance, does the law of war apply when targeting al Qaeda in countries with which the US is not at war? And even if it does, who says the law of armed conflict (also known as international humanitarian law) supports the killing rather than capture of enemy fighters any time, anywhere (Ryan Goodman, writing for the European Journal of International Law Blog, ‘Talk!’, argues the Justice Department memo misunderstands international humanitarian law on this point).
Furthermore, what does ‘imminent’ mean? And what classifies as ‘infeasible’? David Cole in the New York Review of Books pointedly asked: ‘has the ease with which drones can kill others without risk to American life effectively changed the determination of feasibility?’.
Of course, it’s not only American citizens being killed by drone strikes. According to ProPublica, drone strikes have killed between 2600 and 4700 people in the past decade, four of whom were American citizens. Some of these have been ‘signature strikes’ in which drone operators fire on people whose identities they do not know, on the basis of suspicious behaviour.
Even so, critics of the Bush Administration’s torture policies argue that Obama’s targeted killings are not as bad, since torture is illegal under all circumstances, while killing by the state is not (Jane Mayer for instance, makes this argument).
Whatever your position, there are good arguments that Obama’s targeted killings policies contravene well-established rule of law traditions. His lack of transparency on such a contentious issue is just as bad as Bush’s. It is also, given the pronouncements about openness Obama made on coming to office, far more hypocritical.
To get an idea of the level of concern in the UK over the Cameron Government’s proposed Justice and Security Bill, this is what the British army’s most senior lawyer from the 2003 Iraq war said about it last month:
The Justice and Security Bill has one principle aim and that is to cover up UK complicity in rendition and torture. The Bill is an affront to the open justice on which this country rightly prides itself and, above all, it is an affront to human dignity. The fact that some of those individuals who are complicit in rendition and torture can not only assist in the drafting of the Bill but also vote to cover their tracks is a constitutional scandal.
The Bill in question would allow the government to use ‘closed material procedures’ – previously only used in a very limited number of immigration and deportation cases — in civil cases it deems to raise national security concerns (here’s a recent UK parliamentary report on the bill).
One of the reasons there is so much consternation about the Bill concerns how it came about, who wants it, and why.
Basically, it arose out of a series of embarrassing and damaging civil cases brought against MI5 and MI6 by former British nationals and residents detained at Guantanamo Bay who alleged the intelligence agencies were complicit in their torture and extraordinary rendition during the time of the Blair and Brown governments. Revelations made in those cases led the Cameron Government, on winning power, to establish a Detainee Inquiry into British torture complicity and to pay compensation to the former detainees.
The Bill is said to be the work of M15 and M16, who argue that allowing evidence about matters such as their involvement in torture could stop foreign intelligence services such as the CIA from sharing intelligence with them.
In the courtroom scenario M15 and M16 envisage, a claimant would not be allowed to be present in court, they would not be allowed to know the case against them, and they would not be allowed their own lawyer (they would have a security-cleared special advocate instead). In other words, the Cameron Government’s response to disturbing revelations made in open UK courts during the last decade about the involvement of M15 and M16 in the torture of British citizens and residents is to close the courts.
That’s why many in the UK, among them some of the Government’s own members, are so concerned. Conservative MP Andrew Tyrie, a long-time campaigner on rendition, has co-authored a report in which he argues the Bill ‘would make it harder to uncover official wrongdoing in matters such as extraordinary rendition (the kidnap and torture of individuals by the state)’.
It’s also why 702 British lawyers, including the army lawyer quoted above, signed a letter denouncing the Bill as ‘contrary to the rule of law’ last week. In the words of those lawyers, the Bill will ‘fatally undermine the court room as an independent and objective forum in which allegations of wrongdoing can be fairly tested and where the Government can be transparently held to account’.
Photo by Flickr user Medill DC.