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US drone strikes being used as alternative to Guantánamo, lawyer says

The lawyer who first drew up White House policy on lethal drone strikes has accused the Obama administration of overusing them because of its reluctance to capture prisoners that would otherwise have to be sent to Guantánamo Bay.

John Bellinger, who was responsible for drafting the legal framework for targeted drone killings while working for George W Bush after 9/11, said he believed their use had increased since because President Obama was unwilling to deal with the consequences of jailing suspected al-Qaida members.

"This government has decided that instead of detaining members of al-Qaida [at Guantánamo] they are going to kill them," he told a conference at the Bipartisan Policy Center.

Obama this week pledged to renew efforts to shut down the jail but has previously struggled to overcome congressional opposition, in part due to US disagreements over how to handle suspected terrorists and insurgents captured abroad.

An estimated 4,700 people have now been killed by some 300 US drone attacks in four countries, and the question of the programme's status under international and domestic law remains highly controversial.

Bellinger, a former legal adviser to the State Department and the National Security Council, insisted that the current administration was justified under international law in pursuing its targeted killing strategy in countries such as Pakistan and Yemen because the US remained at war.

"We are about the only country in the world that thinks we are in a conflict with al-Qaida, but countries under attack are the ones that get to decide whether they are at war or not," he said.

"These drone strikes are causing us great damage in the world, but on the other hand if you are the president and you do nothing to stop another 9/11 then you also have a problem."

Nevertheless, the legal justification for drone strikes has become so stretched that critics fear it could now encourage other countries to claim they were acting within international law if they deployed similar technology.

A senior lawyer now advising Barack Obama on the use of drone strikes conceded that the administration's definition of legality could even apply in the hypothetical case of an al-Qaida drone attack against military targets on US soil.

Philip Zelikow, a member of the White House Intelligence Advisory Board, said the government was relying on two arguments to justify its drone policy under international law: that the US remained in a state of war with al-Qaida and its affiliates, or that those individuals targeted in countries such as Pakistan were planning imminent attacks against US interests.

When asked by the Guardian whether such arguments would apply in reverse in the unlikely event that al-Qaida deployed drone technology against military targets in the US, Zelikow accepted they would.

"Yes. But it would be an act of war, and they would suffer the consequences," he said during the debate at the Bipartisan Policy Center in Washington.

Hina Shamsi, a director at the American Civil Liberties Union, warned that the issue of legal reciprocity was not just a hypothetical concern: "The use of this technology is spreading and we have to think about what we would say if other countries used drones for targeted killing programmes."

"Few thing are more likely to undermine our legitimacy than the perception that we are not abiding by the rule of law or are indifferent to civilian casualties," she added.

Zelikow, a former diplomat who also works as a professor of history at the University of Virginia, said he believed the US was in a stronger position when it focused on using drones only against those directly in the process of planning or carrying out attacks.

"Bush badly mangled the definition of enemy combatant to expand to anyone who might be giving support, which was very pernicious," he said.

Zelikow - stressing he was speaking in a personal capacity, not on behalf of the administration - added that he felt the US should be clearer in explaining that its targeted killing programme was responding to specific threats against national security.

[Source: Dan Roberts in Washington, The Guardian, London, 02May13]

What options does Obama have to close Guantanamo?

With his renewed vow to close the detention camp for foreign terrorism suspects at Guantanamo Bay, President Barack Obama has effectively assigned himself a list of possible ways to take the prison's population down from 166 to zero.

Some would be more easily achieved than others.

In pledging to look again at an unfulfilled promise dating back to his first election campaign and early days in office in 2009, Obama made plain on Tuesday that it was untenable to keep the 11-year-old camp open.

A hunger strike at the camp at the U.S. Naval Base on Cuba began in February, has been joined by 100 of the inmates and has led to force-feedings to keep the weakest prisoners alive, sparking fresh outrage from rights groups over a prison opened under Republican President George W. Bush in 2002.

There were about 245 prisoners at Guantanamo when Obama, a Democrat, took office in 2009 and that has dropped to 166. But releases have slowed to a trickle under restrictions imposed by Congress, including a ban on any of them being brought to the United States. No prisoners have left Guantanamo this year.

Among current inmates, nine have been charged with crimes or convicted, 24 are considered eligible for possible prosecution, 47 are considered too dangerous for release but are not facing prosecution, and 86 have been cleared for transfer or release.

Obama has several options, although it could take a combination of several to clear the camp.

Put Somebody in Charge

In January, the State Department reassigned the special envoy who had been in charge of trying to persuade countries to take Guantanamo inmates approved for release, Daniel Fried, and did not replace him. That was widely seen as a signal that Obama was giving up on closing the prison any time soon.

Fried arranged for the transfer out of scores of prisoners, but the departures slowed to a crawl after Congress imposed restrictions on them. White House spokesman Jay Carney said on Wednesday the administration was considering naming a senior diplomat to renew the focus on repatriation or transferring detainees.

Christopher Anders, the senior legislative counsel for the American Civil Liberties Union, said such a "point person" was sorely needed as a first step to manage the administration's effort - but that the person should be from the White House. "For the last three years at the White House, it's been like no one home" on Guantanamo, he said.

Use Exceptions in Law to Let Prisoners go

Obama has blamed Congress for interfering with his plan to close Guantanamo. Starting in 2011, Congress began restricting transfers out, saying the Defense Department first had to certify a number of things, including that the destination country was not a state sponsor of terrorism and would take action to make sure the individual would not threaten the United States.

Starting last year, Congress let some restrictions be waived if it was in the "national security interests" of the United States. Obama has not used the waiver or certification provisions.

"For the past two years, our committee has worked with our Senate counterparts to ensure that the certifications necessary to transfer detainees overseas are reasonable. The administration has never certified a single transfer," House Armed Services Committee Chairman Howard McKeon, a Republican, said this week.

The White House could have pushed harder for officials at the Pentagon to process certifications, said the ACLU's Anders.

Wells Dixon, a senior attorney at the Center for Constitutional Rights, a New York organization that has represented a number of Guantanamo prisoners, said Obama could order the Pentagon to begin certifying transfers out. But he also noted potential risks for the president. "There's no political upside" if Obama certifies that a prisoner can leave and then that prisoner later attacks U.S. interests, Dixon said.

Send Prisoners Back to Yemen

Congress has prohibited the transfer of detainees to countries with troubled security situations. But the United States could decide that new Yemeni President Abd-Rabbu Mansour has taken adequate measures against al Qaeda and made the country stable enough to resume repatriations to Yemen.

Repatriations were halted in 2010 after a man trained by militants in Yemen tried to blow up a U.S.-bound plane in 2009.

Of the 86 prisoners cleared for transfer or release, 56 are Yemenis. The Yemeni government says it wants them home and is building a facility to hold them for rehabilitation.

That option also has a potential danger - if a repatriated Yemeni eventually attacked the United States or its interests.

Use the Periodic Review Board Process

Two years ago, Obama signed an executive order establishing extra review procedures for Guantanamo detainees to determine if continued detention were warranted, but the Periodic Review Boards have not been used.

This option looks fairly simple, since it involves carrying out the president's own executive order. But there may have been no rush to establish more reviews boards since prisoners cleared by earlier review boards are still being held.

Use Court Rulings to Get People Out

Dixon suggested the administration could use court rulings to help get prisoners released. Two members of China's Muslim Uighur minority were resettled in El Salvador in April 2012, four years after a U.S. District Court in Washington ruled there were no grounds to hold them.

When prisoners challenge their detention in federal court, the government could decide not to contest the case, paving the way for a court order effecting the prisoner's release, said Dixon. He said that could happen in any of the more than 100 detainee "habeus corpus" cases filed in federal court.

Obama could instruct the Justice Department to stop contesting those cases.

Send Prisoners Out in a Prisoner Exchange

The United States tried to work out a deal to transfer five senior Taliban prisoners back to Afghanistan in return for U.S. Army Sergeant Bowe Berghdal, who has been a prisoner of Taliban militants since 2009. The talks were suspended last year. But there will be pressure to return the Afghan prisoners when the U.S. combat mission in Afghanistan ends in 2014.

This option would depend on how relations evolve with Afghanistan. But the Taliban prisoner release plan also met strong resistance among some members of Congress, especially Republicans, who might object if it resurfaces.

Call on Congress

The legal restrictions on transfers will expire at the end of the fiscal year, on September 30, so Obama could urge Congress not to renew them - and make clear he considers that a political imperative.

If the restriction on transferring prisoners to the United States were allowed to expire, Obama could not only transfer Guantanamo prisoners to foreign countries, but could bring some back to the United States for trial in federal court.

But some Democrats as well as Republicans argue that bringing Guantanamo inmates to the United States is a security risk. Republican leaders in both chambers have made that a high-profile issue, and Republicans control the House of Representatives.

So the option could be bogged down in Washington politics.

[Source: By Susan Cornwell and Jane Sutton, Reuters, 02May13]

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small logoThis document has been published on 03May13 by the Equipo Nizkor and Derechos Human Rights. In accordance with Title 17 U.S.C. Section 107, this material is distributed without profit to those who have expressed a prior interest in receiving the included information for research and educational purposes.